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

JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

21 December 2021 (*)

(Action for damages – Civil service – Members of the temporary staff – Initiation of an administrative inquiry – Article 86(2) of the Staff Regulations – Duty to provide information – Duration of the procedure – Reasonable time – Obligation to state reasons – Manifest error of assessment – Confidentiality of the administrative inquiry – Duty to have regard for the welfare of officials – Non-material damage – Causal link)

In Case T‑703/19,

DD, represented initially by L. Levi and M. Vandenbussche, lawyers, and subsequently by L. Levi, lawyer,

applicant,

v

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

defendant,

ACTION under Article 270 TFEU seeking, in essence, compensation for the non-material damage allegedly suffered by the applicant estimated ex aequo et bono at EUR 50 000 as a result of the initiation and conduct of an administrative procedure within FRA,

THE GENERAL COURT (Fourth Chamber),

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

Registrar: E. Coulon,

gives the following

Judgment

I.      Background to the dispute

1        The applicant, DD, was recruited on 1 August 2000 by the European Monitoring Centre on Racism and Xenophobia (EUMC), now the European Union Agency for Fundamental Rights (FRA), as a member of the temporary staff within the meaning of Article 2(a) of the Conditions of Employment of Other Servants of the European Communities (‘the CEOS’). He was initially employed under a fixed-term contract and was given a contract of indefinite duration as from 16 December 2006.

2        By letter of 13 June 2013, the FRA Director informed the applicant of his decision to terminate the applicant’s contract of indefinite duration and requested him not to provide services during the notice period ‘beginning [that day] and finishing on 12 April 2014’.

3        The 10-month notice period provided for in Article 47(c)(i) of the CEOS expired on 13 April 2014. During the notice period, the applicant was relieved of his obligation to provide his services and to go to the FRA premises.

4        By emails of 5 March and 9 October 2014 (together, ‘the emails at issue’), the applicant sent A, a former FRA official, from his private email address, certain internal information of a confidential nature belonging to FRA. These were documents containing, inter alia, a list of payments made by FRA to B, its former legal advisor.

5        On 20 March 2015, the FRA Director initiated an administrative inquiry under Article 2 of Annex IX to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), concerning, in essence, the circumstances in which FRA internal documents were released (‘the inquiry’ or ‘the administrative inquiry’).

6        The inquiry was conducted on the basis of three decisions (together, ‘the decisions relating to the initiation of the administrative inquiry’), namely, first, Decision DIR/003/2015 of 20 March 2015 concerning the initiation of the administrative inquiry (‘the decision to initiate the administrative inquiry’), second, Decision DIR/004/2016 of 3 March 2016 extending the scope of the administrative inquiry (‘the decision to extend the administrative inquiry’ or ‘the extension decision’) and, third, Decision DIR/005/2016 of 18 March 2016 on the appointment of an investigation panel.

7        By judgment of 8 October 2015, DD v FRA (F‑106/13 and F‑25/14, EU:F:2015:118), the Civil Service Tribunal annulled the termination decision referred to in paragraph 2 above. By contrast, it rejected the applicant’s claim for compensation for non-material damage suffered.

8        The applicant brought an appeal against the judgment of the Civil Service Tribunal, which was dismissed by judgment of 19 July 2017, DD v FRA (T‑742/15 P, not published, EU:T:2017:528).

9        On 29 February 2016, FRA reinstated the applicant in his post, in the context of complying with the judgment of 8 October 2015, DD v FRA (F‑106/13 and F‑25/14, EU:F:2015:118).

10      On 30 March 2016, FRA sent the applicant a note informing him, first, of the initiation of the administrative inquiry and, second, that a hearing was to be held on 5 April 2016.

11      In an exchange of emails of the same date, the applicant asked FRA to provide him with the evidence against him. In response to his request, the investigators sent him certain documents on the same day, including a copy of his email of 9 October 2014.

12      By email of 4 April 2016, in addition to sending the email referred to in paragraph 11 above, FRA sent the applicant additional evidence, including a copy of his email of 5 March 2014.

13      On 5 April 2016, FRA investigators heard the applicant and seven other witnesses.

14      On 10 October 2016, the applicant was informed that the inquiry report had been finalised.

15      On 12 October 2016, the applicant asked FRA to forward to him the conclusions of the inquiry report, the conclusions of the inquiry and any other document directly related to the allegations made against him.

16      By email of 20 October 2016, in response to the email referred to in paragraph 15 above, FRA sent the applicant the conclusions of the inquiry report.

17      On 17 November 2016, the applicant was invited to a hearing, within the meaning of Article 3 of Annex IX to the Staff Regulations, which was to take place on 6 December 2016. On that occasion, the applicant also received a copy of the inquiry report with its annexes.

18      On 5 December 2016, FRA informed the applicant that the hearing referred to in paragraph 17 above had been postponed until a later date.

19      The hearing took place on 12 January 2017. At that hearing, the applicant produced a written statement in which he claimed that the email of 9 October 2014 had been leaked within FRA and requested that an internal inquiry be initiated in that regard.

20      On 13 January 2017, the applicant received the record of the hearing referred to in paragraph 19 above.

21      On 20 January 2017, the applicant sent the FRA Director his final comments on the inquiry report.

22      On 28 April 2017, the FRA Director decided to close the administrative inquiry with no further action. The applicant was notified of that decision on 4 May 2017.

23      On 27 August 2018, the applicant submitted a request (‘the request of 27 August 2018’) within the meaning of Article 90(1) of the Staff Regulations, by which he requested, first, access to certain documents, namely the decisions relating to the initiation of the administrative inquiry and the letter from the Head of Human Resources and Planning of 20 March 2015 to the Director (‘the note of 20 March 2015’), second, the initiation of an inquiry into a breach of the confidentiality of the administrative inquiry and, third, compensation for the non-material damage he allegedly suffered on account of the unlawful conduct of FRA in the course of the administrative inquiry.

24      On 21 December 2018, the FRA Director partially upheld the request of 27 August 2018 and granted the applicant access to certain documents requested by him, referred to in paragraph 23 above (‘the decision of 21 December 2018’). The documents sent to the applicant included the decisions relating to the initiation of the administrative inquiry. The remainder of the request was rejected.

25      On 5 March 2019, the applicant lodged a complaint against the decision of 21 December 2018 under Article 90(2) of the Staff Regulations (‘the complaint’).

26      By decision of 24 June 2019, the FRA Director sent the applicant the note of 20 March 2015 and rejected the remainder of the complaint referred to in paragraph 25 above (‘the decision of 24 June 2019’).

II.    Procedure and forms of order sought

27      The applicant brought the present action by application lodged at the Court Registry on 11 October 2019. The defence, reply and rejoinder were lodged on 20 January, 13 March and 29 June 2020, respectively.

28      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.

29      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 of the General Court, put written questions to the parties, to be answered in writing and, second, 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.

30      The applicant claims that the Court should:

–        order FRA to pay compensation for the non-material damage suffered, estimated ex aequo et bono at EUR 50 000;

–        annul the decision of 21 December 2018;

–        if necessary, annul the decision of 24 June 2019;

–        order FRA to pay the costs.

31      FRA contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

III. Law

A.      The second and third heads of claim

32      The applicant, at the same time as submitting a claim for damages, seeks annulment of the decision of 21 December 2018 and, so far as necessary, of the decision of 24 June 2019.

33      It is apparent from the relationship between the three heads of claim that, by the present action, the applicant seeks compensation for the damage which he claims to have suffered as a result of the initiation of the administrative inquiry. That conclusion also applies in the light of the wording of paragraph 19 of the application. In those circumstances, it must be held that the present action is exclusively for compensation.

34      In this regard, it is settled case-law that a decision of an institution rejecting a request for damages is an integral part of the preliminary 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).

35      In those circumstances, there is no need in the present case to give a separate ruling on the second and third heads of claim.

B.      The first head of claim

36      By his first head of claim, the applicant asks the Court to order FRA to pay compensation for the non-material damage which he allegedly suffered as a result of the unlawful acts committed by FRA both when the administrative inquiry was initiated and during that inquiry.

37      In that regard, in order for liability to arise on the part of an institution, organ or body of the European Union, a number of conditions must be satisfied. Thus, the conduct of which the institution, organ or body 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).

38      In this regard, disputes involving the civil service under Article 270 TFEU and Articles 90 and 91 of the Staff Regulations, including those seeking compensation for damage caused to an official or other member of staff by an EU institution, body, office or agency, are governed by particular and special rules that differ from those arising from the general principles on the non-contractual liability of the European Union under Article 268 TFEU and the second paragraph of Article 340 TFEU (see judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 48 and the case-law cited).

39      It is clear from the Staff Regulations in particular that, unlike any other individual, an official or other member of EU staff is connected to the institution, body, office or agency to which he or she belongs by a legal relationship of employment involving a balance of specific reciprocal rights and obligations, which is reflected in the employing institution’s duty to have regard for the welfare of the person concerned (see judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 49 and the case-law cited).

40      Having regard to the fact that the European Union is thus under a greater liability where it acts as employer, a mere finding of unlawfulness against the appointing authority or the authority empowered to conclude contracts of employment (as the case may be), whether it relates to an act or to decision-making conduct, is sufficient to satisfy the first of the three conditions necessary to incur the liability of the European Union for damage caused to its officials and servants due to the infringement of the law governing the EU civil service, and there is consequently no need to consider whether it is a ‘sufficiently serious’ breach of a rule of law intended to confer rights on individuals (see judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 50 and the case-law cited).

41      It is therefore necessary to examine whether the conditions referred to in paragraph 37 above are satisfied, starting with that relating to the unlawfulness of the conduct complained of.

1.      The unlawfulness of the alleged conduct of FRA

42      In the present case, the applicant pleads nine instances of unlawful conduct, alleging:

–        (i) that the investigators did not have a mandate to investigate, first, a breach by the applicant of Articles 11 and 17 of the Staff Regulations and, second, the email of 5 March 2014, so that the administrative inquiry has no legal basis and infringes Article 86(2) of the Staff Regulations and Article 2 of Decision 2013/01 of the FRA Executive Board of 22 May 2013 on the conduct of administrative inquiries and disciplinary procedures (‘Decision 2013/01’);

–        (ii) that the decision to initiate the administrative inquiry was not based on the existence of a reasonable suspicion;

–        (iii) that FRA did not inform him of the initiation of the administrative inquiry and did not inform him of the decisions relating to it;

–        (iv) that the duration of the administrative procedure was excessive and unreasonable;

–        (v) that the decision closing the inquiry was not reasoned;

–        (vi) that the inquiry report contains an error of law and a manifest error of assessment;

–        (vii) infringement of the confidentiality of the inquiry by FRA;

–        (viii) infringement of Article 4(1)(a) and point (a) of the first subparagraph of Article 5 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);

–        (ix) infringement of the duty of care, lack of objectivity and impartiality and misuse of powers.

(a)    The first plea of unlawfulness, alleging that the investigators did not have a mandate to investigate, first, a possible infringement of Articles 11 and 17 of the Staff Regulations by the applicant and, second, the email of 5 March 2014, with the result that the administrative inquiry has no legal basis and infringes Article 86(2) of the Staff Regulations and Article 2 of Decision 2013/01

43      The applicant considers, in essence, that the administrative inquiry could not relate either to the email of 5 March 2014 or to an infringement of the provisions of the Staff Regulations, since the investigators were not duly instructed by FRA to investigate his involvement in the leak at issue. He concludes that the administrative inquiry has no legal basis and thus infringes Article 86(2) of the Staff Regulations and Article 2 of Decision 2013/01.

44      FRA contends that the first plea of unlawfulness is inadmissible on the ground that, in the complaint, the applicant did not raise the argument put forward in that plea.

45      It should be borne in mind, in that regard, that the EU Courts are entitled to assess, according to the circumstances of each case, whether the sound 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).

46      In the circumstances of the present case, it is necessary to examine at the outset the merits of the applicant’s arguments, in so far as, first, the determination of the precise scope of the administrative inquiry lies at the heart of the present case and has a direct impact on the assessment of the merits of the other pleas of unlawfulness raised by the applicant in the present action and in so far as, second, and in any event, that argument must be rejected on the merits.

47      In his arguments relating to the present plea of unlawfulness, the applicant claims that the subject matter of the inquiry was strictly limited to identifying the person who sent him the internal documents of a confidential nature, with the result that that inquiry cannot be regarded as relating to his involvement in the leak. In addition, the applicant submits that the decision to initiate the administrative inquiry mentioned only his email of 9 October 2014, so that the administrative inquiry could not relate to the email of 5 March 2014 and, consequently, to his involvement in the leak.

48      FRA contests the applicant’s arguments.

49      It must be stated that the reasoning put forward by the applicant in the first plea of unlawfulness is based on a misreading of the decisions relating to the initiation of the administrative inquiry.

50      In the first place, as regards the applicant’s argument that the subject matter of the inquiry did not relate to the email of 5 March 2014, it should be recalled that it is apparent from the operative part of the decision to initiate the administrative inquiry that:

‘The [inquiry] will seek to determine the facts and circumstances under which [the applicant] received the internal document while he had no access to the FRA’s internal documents since 14 June 2013.’

51      The operative part of the decision to initiate the administrative inquiry is thus formulated in terms that are sufficiently broad to be regarded as encompassing all factors relating to the leak at issue, including, therefore, contrary to what is claimed by the applicant, his email of 5 March 2014, with the result that the applicant must be regarded as a person concerned by the administrative inquiry.

52      In the second place, it should be noted that the decision to extend the administrative inquiry substantially extended the scope of the inquiry.

53      In that regard, it is apparent from the wording of the operative part of that decision that:

‘[FRA] has decided to extend the scope of the administrative inquiry stipulated in the Decision DIR/003/2015, in time and people involved, in order to identify the source(s) of leaked information to external actors and ex-staff members [of FRA].’

54      In that context, the following observations must be made.

55      First, in so far as that decision extends the temporal scope of the inquiry, it cannot be considered, contrary to what the applicant claims, that the administrative inquiry related only to the email of 9 October 2014. In the light of the particularly broad definition of its subject matter, it must be regarded as necessarily covering any other document that may have been the subject of unauthorised disclosure linked to the email of 9 October 2014, including the email of 5 March 2014.

56      Second, it must also be observed that the decision to extend the administrative inquiry substantially widens the material scope of the inquiry. At the very least, following that extension, it related not only to the internal persons involved in the leak, but also to former FRA staff members such as, at the time the inquiry was initiated, the applicant. In other words, the mandate of the investigators cannot be regarded as having been limited to the question of who, within FRA, forwarded FRA internal documents to the applicant.

57      In that context, it should also be noted that it is apparent from the operative part of the decision concerning the appointment of an investigation panel (see paragraph 9 above), in particular Article 2(1) thereof, that the purpose of the inquiry was to ‘identify the source(s) of leaked information to external actors and ex-staff members and whether there has been a breach of the Staff Regulations’.

58      In the light of all the foregoing considerations, it must be concluded that the administrative inquiry related to all events connected with the external leak of FRA internal documents. It follows that the inquiry must be regarded as relating to any unauthorised transfer of internal documents of that institution both before and after the date on which the applicant no longer had access to FRA’s premises (see paragraph 3 above), the role played by the various persons involved and, consequently, any infringements of provisions of the Staff Regulations by the applicant.

59      In the third place, and in any event, even though it is true that the administrative inquiry was formally initiated on 20 March 2015, it could not actually begin until the investigation panel was appointed, which did not take place until 18 March 2016.

60      In that regard, it must be stated that, in his written pleadings, the applicant does not put forward any argument capable of contradicting that finding.

61      Thus, in so far as the administrative inquiry did not in fact begin before the investigation panel was appointed, the investigators cannot reasonably be criticised for disregarding the scope of the inquiry, as defined inter alia by the extension decision, as regards the period prior to the appointment of the investigation panel.

62      In those circumstances, the applicant’s argument that he should not have been regarded as a person concerned by the administrative inquiry must be rejected. The fact that the decisions relating to the initiation of the administrative inquiry did not expressly identify him as a person concerned by a possible infringement of Articles 11 and 17 of the Staff Regulations, nor expressly mention his email of 5 March 2014, but only that of 9 October 2014, is, in the light of the considerations set out in paragraphs 55 to 61 above, irrelevant.

63      In the light of all of the foregoing, the first plea of unlawfulness must be rejected as unfounded.

(b)    The second plea of unlawfulness, alleging that the decision to initiate the administrative inquiry was not based on the existence of a reasonable suspicion

64      The applicant claims that FRA infringed Article 86(2) of the Staff Regulations and Article 3(c) of Annex IX thereto in so far as it initiated the administrative inquiry without any reasonable suspicion of a disciplinary offence based on evidence to a sufficient legal standard, as required by those provisions.

65      FRA disputes all the arguments put forward by the applicant.

66      As a preliminary point, it must be observed that the arguments put forward by the applicant are closely linked to the arguments put forward in the context of the first plea of unlawfulness. His line of argument is based, once again, on the incorrect premiss that the investigators were not duly instructed to investigate the email of 5 March 2014 or the applicant’s involvement in the leak at issue. As has already been pointed out inter alia in paragraphs 50 to 57 above, that is not the case here.

67      Primarily, it should be noted that the appointing authority, in the present case the FRA Director, has broad discretion in deciding whether, in the light of the evidence in his possession, it is appropriate to initiate an administrative inquiry under Article 2 of Annex IX to the Staff Regulations, which refers to Article 1 of that annex, and subsequently, where appropriate, one of the disciplinary procedures provided for in Sections 4 and 5 of that annex (see, to that effect, judgment of 19 June 2013, Goetz v Committee of the Regions, F‑89/11, EU:F:2013:83, paragraph 184).

68      However, the broad discretion enjoyed by the administration in deciding whether it is appropriate to initiate an inquiry, and subsequently one of the disciplinary procedures provided for in Sections 4 and 5 of Annex IX to the Staff Regulations, cannot justify the appointing authority’s conducting a procedure without even prima facie evidence against the persons concerned. Consequently, in order to protect the rights of the official concerned, the appointing authority must satisfy itself, before launching an investigation, that it has information suggesting that the person concerned has breached his obligations under the Staff Regulations and has sufficiently precise and relevant evidence to support its suspicions before instituting disciplinary proceedings (see, to that effect, judgment of 19 June 2013, Goetz v Committee of the Regions, F‑89/11, EU:F:2013:83, paragraph 185).

69      In the present case, by sending the emails at issue, the applicant disclosed FRA internal confidential documents externally. That finding is not contradicted by the applicant’s arguments. As is apparent from the arguments made in the context of the examination of the first plea of unlawfulness (see, in particular, paragraphs 50 to 62 above), when the email of 5 March 2014 was sent, the applicant was still a member of FRA staff subject, inter alia, to the duty of loyalty and the duty of confidentiality laid down in Articles 11 and 17 of the Staff Regulations, respectively.

70      In that regard, it should be noted that, as is apparent from the responses given by FRA in the context of the measures of organisation of procedure, the emails at issue were brought to its attention on 14 February 2015. Those documents were attached, in the form of annexes, to an application for access to documents made in accordance with Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), made by A to FRA.

71      It must be held that, since it had evidence of the external disclosure of internal documents, which were attached to the emails at issue that had been brought to its attention on 14 February 2015, FRA had sufficient evidence of a failure to fulfil obligations under the Staff Regulations, within the meaning of the case-law cited in paragraph 68 above.

72      In those circumstances, having regard to the nature of the alleged infringements and to the highly probative nature of several items of evidence at its disposal, FRA could reasonably consider that it was necessary to initiate an administrative inquiry in the present case.

73      Consequently, the applicant is not justified in claiming that, by initiating the administrative inquiry, FRA infringed Article 86(2) of the Staff Regulations.

74      That finding cannot be called into question by the other arguments put forward by the applicant.

75      In the first place, as regards the applicant’s argument that the initiation of the administrative inquiry is such as to undermine the presumption of his innocence, it is sufficient to recall that, according to settled case-law, the institution of disciplinary proceedings in itself does not undermine the presumption of innocence (see, to that effect and by analogy, judgment of 12 July 2012, Commission v Nanopoulos, T‑308/10 P, EU:T:2012:370, paragraph 93 and the case-law cited).

76      In the present case, since the applicant has not put forward any other evidence based on which it might be possible to establish a breach of the presumption of innocence, the mere initiation of an administrative inquiry is not capable, in the light of the case-law cited in paragraph 75 above, of undermining that inquiry.

77      In the second place, the applicant claims that, at the time when he received and subsequently disclosed FRA internal confidential information, he was no longer in active service at FRA, with the result that the sending of the emails at issue should not be regarded as having taken place ‘in the line of duty’ within the meaning of Article 17 of the Staff Regulations. In that regard, it is sufficient to observe that, at the time when the email of 5 March 2014 was sent, the applicant was still, notwithstanding the notice period, a member of staff of FRA and therefore necessarily subject to the provisions of the Staff Regulations, in particular the duty of loyalty and of confidentiality arising from Article 11 and Article 17 of the Staff Regulations, respectively.

78      In the third place, the applicant invokes the notice period, claiming that, during that period, he was no longer covered by the Staff Regulations. In that regard, it should be noted that, by letter of 13 June 2013 (see paragraph 2 above), FRA informed the applicant of its decision to terminate his employment contract. During that period, the applicant was exempted from the obligation to provide services under his contract of employment and to go to FRA premises.

79      It is clear, however, that the notice period precedes the end of the contractual relationship. It follows that that period must be regarded as a period of normal employment during which the applicant continued to be subject to the rights and obligations arising from the Staff Regulations.

80      Consequently, the fact that, during that period, he was released from the obligation to provide his professional services and to go to the premises of FRA is not such as to exempt him from the duty of loyalty and of confidentiality imposed on him by Article 11 and Article 17 of the Staff Regulations, respectively.

81      In the fourth place, the applicant claims that, at the time the administrative inquiry was initiated, FRA was in possession of all the information relating to his involvement in the leak, with the result that the initiation of the inquiry concerning him was not necessary.

82      In that regard, it must be observed that it cannot be inferred from the mere fact that FRA was in possession of the emails at issue, showing that internal confidential documents had been disclosed externally, that, at the time the administrative inquiry was initiated, FRA had all the information relating to the leak, such as the extent of that leak and the nature of the applicant’s involvement.

83      Furthermore, as is apparent from the analysis carried out in paragraphs 51 to 61 above, the administrative inquiry at issue was not, contrary to what the applicant claims, directed against a particular person, but concerned all the circumstances connected with the external leak of FRA internal documents.

84      Moreover, it should be borne in mind that, where there is sufficient prima facie evidence making it necessary to initiate an administrative inquiry in order to establish whether the alleged facts were capable of constituting an infringement of the provisions of the Staff Regulations, that inquiry must be conducted until its completion, in order for the administration, informed by the conclusions of the inquiry report, to adopt a definitive position in that regard, thus enabling it either to close the administrative inquiry without further action or, where the alleged facts are established and come within the scope of the disciplinary procedure, inter alia, to initiate the disciplinary procedure, in order to impose, if necessary, disciplinary sanctions on the person responsible for the alleged information (see, to that effect and by analogy, judgment of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraphs 56 and 57).

85      In the fifth place, as regards the argument that the appointing authority launched, in March 2016, what the applicant terms a ‘fishing operation’, it must be held that that argument is a mere assertion, which is not corroborated by any concrete evidence, with the result that it must be rejected as unfounded.

86      In the light of all of the foregoing, the present plea of unlawfulness must be rejected as unfounded.

(c)    The third plea of unlawfulness, alleging that FRA did not inform the applicant of the initiation of the administrative inquiry or of the decisions relating to it

87      In the present plea of unlawfulness, the applicant alleges, in essence, that FRA infringed Article 1(1), read in conjunction with Article 2(1), of Annex IX to the Staff Regulations, and Article 5(2) of Decision 2013/01.

88      In that regard, the applicant’s claims may be divided into two parts. The first part alleges that FRA did not inform him of the existence of the administrative inquiry in good time. The second part alleges, in essence, that FRA did not send him all the documents directly related to the allegations made against him, as required by Article 5(4) of Decision 2013/01, in breach of his rights of defence.

(1)    The first part, alleging that FRA did not inform the applicant in good time that the administrative inquiry had been initiated

89      The applicant complains that FRA did not inform him of the existence of an administrative inquiry until one year after it was initiated, while, under Article 1(1), and Article 2(1), of Annex IX to the Staff Regulations and Article 5(2) of Decision 2013/01, he should have been informed rapidly. He maintains that FRA did not provide any explanation to justify that delay. He also submits that he learned of the initiation of the administrative inquiry indirectly, by consulting the inquiry report sent to him by FRA.

90      First, FRA submits that when the administrative inquiry was initiated, the applicant was no longer a member of its staff. Second, in so far as, while no investigation panel had been appointed, up to March 2015, the administrative inquiry was ‘dormant’ and no procedural steps could be taken in that period, that inquiry should be regarded as non-existent. Third, FRA maintains, in essence, that, in his written pleadings, the applicant does not explain how the fact that he was not informed of the administrative inquiry infringed his rights. Lastly, it asserts that, in any event, on 30 March 2016, it informed the applicant of the administrative inquiry.

91      In that regard, it must be recalled that Article 5(2) of Decision 2013/01 provides as follows:

‘All staff members involved in an administrative inquiry should be informed of the existence of the administrative inquiry, its opening and closing where appropriate as well as potential extensions unless the Director considers that disclosing this information would hinder the inquiry …’

92      Although the wording of Article 5(2) of Decision 2013/01 does not expressly refer to former FRA staff members, FRA cannot, contrary to what it claims, be relieved of its obligation to inform them. That provision must be read in the light of the relevant provisions of the Staff Regulations. It is apparent from Article 2(1) and Article 1(1) of Annex IX to the Staff Regulations, read together, that, as soon as an administrative inquiry reveals the possibility that an official or former official is personally involved in a case, that official or former official is to be kept informed of this in so far as that information is not detrimental to the conduct of the inquiry.

93      In those circumstances and since, at the time of the initiation of the administrative inquiry, there was a possibility of the applicant’s involvement in the leak at issue (see paragraphs 50 and 51 above), FRA was required to inform the applicant of the inquiry as soon as it was initiated, unless that information was likely to harm the conduct of the inquiry.

94      In the present case, first, it must be stated that it is only by the note of 30 March 2016 (see paragraph 10 above), that is to say, one year after the initiation of the administrative inquiry (see paragraph 5 above), that the applicant was informed of its existence. Moreover, that note does not state the date on which the inquiry was initiated.

95      Second, the fact, relied on by FRA, that the administrative inquiry did not actually start until one year after its formal initiation was not such as to relieve it of its obligation to inform the applicant of the administrative inquiry as soon as it became aware of the possibility of his involvement in the subject matter of the inquiry, in accordance with the provisions laid down in Article 1(1) of Annex IX to the Staff Regulations.

96      Similarly, FRA cannot rely on the fact that, during the ‘dormant’ period, no procedural steps could be taken and that, in any event, on 30 March 2016, the applicant was informed of the existence of the inquiry. That fact has no bearing, once again, on FRA’s obligation to comply with the provisions of the Staff Regulations referred to in paragraph 92 above.

97      Third, it should be noted that the obligation to provide information imposed both by the provisions of the Staff Regulations and by Decision 2013/01, referred to in paragraphs 91 and 92 above, is not absolute. It is permissible for the appointing authority concerned to dispense with this where it considers that such disclosure would be likely to harm the conduct of an administrative inquiry.

98      It must be stated that, in its written pleadings, FRA does not refer to any reason capable of demonstrating the existence of such a risk and, consequently, of justifying a possible failure to comply with the obligation to provide information laid down in the relevant provisions of the Staff Regulations and of Decision 2013/01.

99      Consequently, it must be concluded that, in so far as the applicant, as a former member of FRA’s staff, was not informed of the existence of the administrative inquiry as soon as it was initiated, FRA infringed its obligation to provide information under the provisions referred to in paragraphs 91 and 92 above.

100    Accordingly, the first part of the present plea of unlawfulness must be upheld.

(2)    The second part, alleging that FRA failed to disclose to the applicant all the documents directly related to the allegations made against him

101    By the second part, the applicant alleges, in essence, that FRA infringed his rights of defence and Article 5(4) of Decision 2013/01 in so far as it sent him the documents directly related to the allegations made against him only in response to his second request for them. He refers, in that regard, to his request of 12 October 2016 (see paragraph 15 above). In his pleadings, he refers, in particular, to the decisions relating to the initiation of the administrative inquiry.

102    FRA contests the applicant’s arguments.

103    According to settled case-law, respect for the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of EU law which must be guaranteed even in the absence of any rules governing the proceedings in question (see judgment of 9 November 2006, Commission v De Bry, C‑344/05 P, EU:C:2006:710, paragraph 37 and the case-law cited).

104    That principle is reflected in the obligation to communicate to the person concerned by the administrative inquiry all documents directly related to the allegations made against him, arising from a combined reading of Article 5(4) of Decision 2013/01 and Article 2(2) of Annex IX to the Staff Regulations.

105    In accordance with Article 5(4) of Decision 2013/01:

‘The director shall on request [by the member of staff concerned], communicate all documents directly linked to the allegations made, subject to the protection of the legitimate interests of third parties.’

106    A similar provision is to be found in Article 2(2) of Annex IX to the Staff Regulations:

‘The Appointing Authority … shall communicate to [the person concerned] …, on request and subject to the protection of the legitimate interests of third parties, all documents directly related to the allegations made against him.’

107    It follows that, under the provisions referred to in paragraphs 105 and 106 above, all documents directly related to the allegations made against the member of staff concerned must, in principle, be disclosed at his or her request.

108    It is apparent from the file in the present case that on 12 October 2016 the applicant made an application for disclosure of the documents relating to the allegations made against him (see paragraph 15 above).

109    It is not disputed that it was only, first, on 21 December 2018, in response to the request of 27 August 2018, that FRA informed the applicant of the decisions relating to the initiation of the administrative inquiry (see paragraph 24 above) and, second, on 24 June 2019, in response to the complaint, that FRA sent the note of 20 March 2015 to the applicant (see paragraph 26 above), that is to say, after the closure of the administrative inquiry.

110    Moreover, it should be noted that neither during the pre-litigation procedure nor before the Court did FRA put forward any arguments to show that disclosure of the requested documents would have been likely to prejudice the legitimate interests of third parties within the meaning of the provisions referred to in paragraphs 105 and 106 above.

111    It follows from the findings in paragraphs 108 and 109 above that the obligations laid down by the abovementioned provisions, which give effect to the general principle of respect for the rights of the defence in that area, were not complied with by FRA. Accordingly, this part of the plea and, therefore, the third plea of unlawfulness in its entirety must be declared well founded.

(d)    The fourth plea of unlawfulness, alleging that the duration of the administrative procedure was excessive and unreasonable

112    The appellant claims, in essence, that the length of the administrative inquiry conducted by FRA is unreasonable.

113    FRA contends that the arguments put forward by the applicant are unfounded.

114    It must be borne in mind that, as the Staff Regulations make no specific provision as to the period within which an administrative inquiry must be conducted by the administration, the appointing authority must have due regard for the ‘reasonable time’ principle in such matters. In that regard, it follows from the principle of sound administration that disciplinary authorities are under an obligation to conduct administrative procedures diligently and to ensure that each measure is taken within a reasonable time following the previous measure (See, by analogy, judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 101 and the case-law cited).

115    That duty to act diligently and to observe the reasonable time requirement is also essential with regard to the institution of administrative proceedings, in particular in circumstances where and from the time when the administration becomes aware of facts and conduct which are liable to constitute breaches of an official’s obligations under the Staff Regulations (see, to that effect, judgment of 8 March 2012, Kerstens v Commission, F‑12/10, EU:F:2012:29, paragraph 125).

116    It is important also to point out that the principle of legal certainty is undermined if the administration delays unduly the initiation of administrative proceedings. In fact, both the assessment by the administration of the facts and conduct in question and the exercise by the official of his or her rights of defence may prove particularly difficult if a substantial period of time has elapsed between the time when those facts and that conduct took place and the start of the administrative inquiry. On the one hand, important witnesses and documents – whether in the defendant’s favour or otherwise – may have disappeared and, on the other, it becomes difficult for everyone concerned, including witnesses, to reconstruct faithfully their memories of the facts of the case and the circumstances in which they arose (see, to that effect, judgment of 8 March 2012, Kerstens v Commission, F‑12/10, EU:F:2012:29, paragraph 126).

117    The period to be taken into account in order to ascertain whether the duration of administrative proceedings is reasonable is not solely that commencing on the date of the decision to institute those proceedings. The question whether the administrative proceedings, once commenced, have been conducted with due diligence will be influenced by the length of the period between the occurrence of the alleged breach of obligations under the Staff Regulations and the decision to institute administrative proceedings (see, to that effect, judgment of 8 March 2012, Kerstens v Commission, F‑12/10, EU:F:2012:29, paragraph 127).

118    In that regard, it must be noted that the reasonableness of the duration of the administrative proceedings must be assessed in the light of the circumstances specific to each case and, in particular, of the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities (see, to that effect, judgment of 8 March 2012, Kerstens v Commission, F‑12/10, EU:F:2012:29, paragraph 128).

119    No specific factor is decisive. Each must be examined separately and then their cumulative effect evaluated. Some instances of delay attributable to the appointing authority may not appear unreasonable in isolation but are unreasonable when considered together. The requirements of procedural diligence do not, however, go further than those compatible with the principle of sound administration (see, to that effect, judgment of 8 March 2012, Kerstens v Commission, F‑12/10, EU:F:2012:29, paragraph 129).

120    In order to ascertain, in the light of those principles, whether, first, the phase preceding the administrative procedure and, second, the administrative procedure itself took place within a reasonable time, it is necessary, first of all, to recall the main events which led to the initiation of the administrative procedure and the main stages of the administrative procedure itself, before going on to examine whether or not the objectively established duration must be regarded as reasonable.

121    In the first place, it should be borne in mind, first, that the earliest act alleged against the applicant dates back to 5 March 2014 and the most recent to 9 October 2014. In that regard, as noted in paragraph 70 above, the emails at issue were brought to FRA’s attention on 14 February 2015, in the context of the request for access to documents made by A. It must be observed that, in so far as a month passed between FRA’s becoming aware of the occurrence of the alleged breach of the Staff Regulations and the decision to initiate the administrative inquiry, the inquiry was initiated within a reasonable period of time, which, moreover, the applicant does not dispute.

122    Second, the applicant claims that the period of almost one year between the initiation of the administrative procedure and the appointment of an investigation panel, which took place on 20 March 2015 and 18 March 2016 respectively, is unreasonable.

123    In that regard, it should be borne in mind that, where decisions taken by the appointing authority have caused proceedings to exceed the period that would normally be considered reasonable, it is for that authority to prove the existence of special circumstances of such a nature as to justify that delay (judgment of 13 January 2010, A and G v Commission, F‑124/05 and F‑96/06, EU:F:2010:2, paragraph 395).

124    In its reply to the measures of organisation of procedure, FRA set out the reasons why the appointment of the investigation panel could not have taken place earlier.

125    First of all, in support of its arguments, FRA invokes the departure of the head of unit responsible for the administrative inquiry, who left the agency in June 2015.

126    Next, FRA submits that, on 31 March 2015, the former FRA Director left the agency. Pending the appointment of a new director, his duties were performed by a director ad interim. It submits that the latter’s duties were limited to dealing with current business within FRA. In that regard, it considers that giving a mandate to an investigation panel to investigate the actions of the applicant did not fall within the scope of his powers.

127    Lastly, FRA claims that, at the time when the Director ad interim took up his duties, it had to comply with the judgment of 3 June 2015, BP v FRA (T‑658/13 P, EU:T:2015:356). In that regard, it submits that the appellant in that case accused the Director ad interim of a conflict of interests, thus calling into question the latter’s power to adopt measures to comply with that judgment. In view of the close relationship between A and the applicant and in the interests of preventing a risk that his authority might, for similar reasons, be called into question by the applicant when appointing an investigation panel, the Director ad interim considered it more appropriate and prudent to wait for the new director to take up his or her duties.

128    In that regard, first of all, it should be noted that, in its reply to the measures of organisation of procedure, FRA does not explain precisely how the departure of the head of unit responsible for the case could have caused a delay of more than a year between the date on which the administrative inquiry was initiated and the date on which the investigation panel was appointed.

129    Next, by merely referring to certain matters of a factual and general nature, FRA has not adduced any evidence to support the view that the decision to appoint the investigation panel did not fall within the scope of the authority of the Director ad interim. On the contrary, in so far as the administrative inquiry had been initiated before he took up his duties, the appointment of the investigators, in order to take the next step required following the decision to initiate the administrative inquiry, appears fully capable of forming part of the ‘current affairs’ invoked by FRA.

130    Moreover, it should be borne in mind, as has already been pointed out in paragraphs 51 to 58 above, that the subject matter of the inquiry at issue was all the events connected with the external leak of FRA internal documents.

131    Since FRA rightly considered, as is apparent from the analysis of the second plea of unlawfulness, that it was necessary to initiate an administrative inquiry, it could not subsequently reasonably rely, in the absence of concrete evidence adduced in support of that argument, on the fact that the Director ad interim did not have the necessary authority to give a mandate to the investigation panel.

132    Lastly, as regards FRA’s argument that there was a risk that the applicant might challenge the appointment of the investigators by invoking the lack of impartiality of the Director ad interim who appointed them, it may be presumed that administrative inquiries initiated to investigate matters liable to constitute disciplinary offences take place in a tense atmosphere. It is also in such circumstances that the administration is required to conduct internal procedures within a reasonable time.

133    To accept that an EU institution, body, office or agency may rely on the existence of conflict in internal procedures liable to result in a disciplinary penalty would be tantamount to depriving of all practical effect the principle of legal certainty referred to in paragraph 116 above and, consequently, the obligation to conduct internal procedures within a reasonable time.

134    Finally, faced with the potential risk of accusations concerning impartiality, it would have been possible for the Director ad interim to delegate his power to appoint the investigation panel to a person not affected by any conflict of interests.

135    Thus, it must be held, in the light of the responses provided in the context of the measures of organisation of procedure, that FRA has not demonstrated the existence of special circumstances, within the meaning of the case-law cited in paragraph 123 above, capable of justifying the delay in the decision to appoint the investigation panel.

136    Third, as regards the stage of the administrative procedure following the appointment of an investigation panel, the applicant challenges the period of approximately four months which elapsed between the finalisation of the inquiry report, which took place on 1 September 2016, and his hearing, which was held on 12 January 2017. That period cannot, however, be regarded as abnormally long. It is necessary to take account of the fact that the applicant’s hearing, which was initially scheduled for 6 December 2016, was, as is apparent from the case file, postponed until 12 January 2017, since the FRA Director decided to take part personally. In that regard, it should be recalled that, in the meantime, namely 20 October 2016, the applicant received the conclusions of the inquiry report and, then, on 17 November 2016, the entire inquiry report, alongside the invitation to attend the hearing initially planned for 6 December 2016, which left him ample time to become familiar with the case file and prepare for his hearing. Given the intention of the FRA Director, in his capacity as the appointing authority, to participate personally in that hearing and the fact that postponement of the hearing might have coincided with the end-of-year period, it must be held that the postponement of the hearing until 12 January 2017 appears, in the specific circumstances of the present case, to be reasonable in the light of the case-law referred to in paragraph 118 above.

137    In the second place, it is necessary to determine whether, taken together, the findings in paragraphs 121 to 136 above serve to show that FRA complied with or, on the contrary, failed to observe the principle that action must be taken within a reasonable time.

138    In that regard, as established in paragraphs 121 to 136 above, the procedure for adopting the decision to initiate the administrative inquiry and the stage of the administrative procedure following the appointment of an investigation panel took place in compliance with the reasonable time principle. The fact remains that the stage prior to the appointment of the investigation panel took place within an unreasonable time without FRA’s having established special circumstances, within the meaning of the case-law referred to in paragraph 123 above, capable of justifying the delay in making that appointment. In those circumstances, authorities are under an obligation to conduct disciplinary proceedings diligently and to ensure that each measure is taken within a reasonable time following the previous measure (see paragraph 114 above), the duration of the various stages of the administrative procedure at issue, even taken together, does not permit the inference that that procedure took place within a reasonable time.

139    That unreasonableness of the duration of the administrative procedure constitutes unlawful conduct on the part of FRA.

140    Accordingly, the fourth plea of unlawfulness must be upheld as well founded.

(e)    The fifth plea of unlawfulness, alleging that the decision closing the inquiry was not reasoned

141    The applicant submits, in essence, that, in so far as no reasons were given for the decision of 28 April 2017 closing the administrative inquiry without further action, that decision infringes Article 41(2)(c) of the Charter of Fundamental Rights of the European Union. In that regard, he maintains that, in the absence of a statement of reasons, it is impossible for him to understand why FRA decided to depart from the conclusions of the inquiry by closing the case without further action.

142    In that regard, first, he asserts that such an approach is contrary to the previous decisions of the European Ombudsman.

143    Second, even though the decision closing the inquiry referred to Article 3 of Annex IX to the Staff Regulations, it does not conform to any of the options given by that provision and thereby infringes the principle of legal certainty.

144    FRA disputes all the arguments put forward by the applicant.

145    It follows from the case-law that the obligation to state reasons, referred to in Article 296 TFEU and repeated in Article 41(2)(c) of the Charter of Fundamental Rights, constitutes an essential principle of EU law, which is intended, on the one hand, to provide the persons concerned with sufficient details to enable them to assess whether the decision was well founded and whether it would be expedient to bring legal proceedings to contest its legality and, on the other hand, to enable the EU Courts to review the decision (see judgment of 10 June 2020, Sammut v Parliament, T‑608/18, EU:T:2020:249, paragraph 32).

146    That principle was enshrined in the second paragraph of Article 25 of the Staff Regulations. It is clear from that provision that all acts adversely affecting an official are to state the reasons on which they are based.

147    It suffices to note that a decision by which the appointing authority closes disciplinary proceedings without further action does not constitute an act adversely affecting the official against whom the proceedings were instituted within the meaning of Articles 90 and 91 of the Staff Regulations, since the operative part of such a decision is not capable of altering the legal situation of that official (see, to that effect, judgment of 11 May 2010, Nanopoulos v Commission, F‑30/08, EU:F:2010:43, paragraph 110).

148    It follows that the applicant cannot legitimately rely on infringement of Article 3 of Annex IX to the Staff Regulations on the ground that the decision closing the administrative inquiry lacked a statement of reasons.

149    In the light of the foregoing, and without it being necessary to rule on the other arguments put forward by the applicant, the present plea of unlawfulness must be rejected.

(f)    The sixth plea of unlawfulness, alleging that the inquiry report contains an error of law and a manifest error of assessment

150    The applicant claims, in essence, that the inquiry report is vitiated by an error in so far as it finds that the applicant infringed Article 11(2) and Article 17(1) of the Staff Regulations, when the provisions of the Staff Regulations do not apply to him, since he was no longer in active service at FRA when the emails at issue were sent.

151    FRA contends that the applicant does not have a sufficient interest in raising the sixth plea of unlawfulness, given that the inquiry report concluded that the inquiry should be closed without further action and did not result in the initiation of disciplinary proceedings against him.

152    However, in the light of the principle of the sound administration of justice and in order to give an adequate response to the applicant’s claims, the Court considers it appropriate, in accordance with the case-law referred to in paragraph 45 above, to examine at the outset the merits of the applicant’s claims.

153    It must be stated that the arguments put forward by the applicant in the present plea of unlawfulness and those already analysed in the context of the first and second pleas of unlawfulness overlap to a large extent. The present plea of unlawfulness is again based on the incorrect premiss that the investigators were not duly appointed to investigate a possible breach of obligations under the Staff Regulations by the applicant or, in particular, his email of 5 March 2014.

154    However, since, as noted in paragraph 69 above, at the time when the email of 5 March 2014 was sent, the applicant was still a member of FRA staff subject to all the obligations arising from the Staff Regulations, he cannot validly claim that the inquiry report is vitiated by a manifest error of assessment in so far as it is found therein that he infringed those obligations.

155    Therefore, in the light of the above, the present plea of unlawfulness must be rejected as unfounded.

(g)    The seventh plea of unlawfulness, alleging infringement of the confidentiality of the inquiry by FRA

156    In the seventh plea of unlawfulness, the applicant submits that FRA infringed the confidentiality of the administrative inquiry. In support of his line of argument, in the first place, the applicant relies on an email of 22 April 2016, which proves, in his view, that A’s representative was aware of the existence of the administrative inquiry at FRA and of its purpose. In the second place, he invokes an email of 30 November 2015, sent to FRA by B, a former legal advisor to FRA. He also asserts that that disclosure is not justified by any of the situations referred to in Articles 5, 8 and 20 of Regulation No 45/2001.

157    FRA disputes the admissibility of the seventh plea of unlawfulness in two respects. First, it does not satisfy the requirements laid down in Article 76(d) of the Rules of Procedure. Second, the present plea of unlawfulness is inadmissible on account of failure to comply with the procedure laid down in Article 90(2) of the Staff Regulations.

158    However, in the light of the principle of the sound administration of justice and in order to give an adequate response to the applicant’s claims, the Court considers it appropriate, in accordance with the case-law cited in paragraph 45 above, to examine, at the outset, the merits of the applicant’s complaint.

159    In the first place, it should be noted that the email of 22 April 2016 is worded as follows:

‘Thus, please ask FRA if they initiated [the] internal investigation in relation to the illegal acquisition of personal data by the [applicant] after his dismissal via still existing contacts at FRA and ask FRA to hand over the eventual results of those internal investigations to you.’

160    It follows from the wording of the request in the email of 22 April 2016 that its author, A’s lawyer, merely asked the Austrian police to seek information from FRA as to whether it initiated an internal procedure relating to the unauthorised disclosure of FRA internal documents carried out by the applicant.

161    Thus, it is not apparent from the wording of that email, contrary to what the applicant claims, that A’s lawyer was in possession of precise information relating to the administrative inquiry in question. That email, in which its author merely makes a simple request for information, does not in any way demonstrate that he was aware of the existence of an administrative inquiry and, consequently, that he was in possession of confidential information or documents transferred by FRA in breach of the provisions of Regulation No 45/2001.

162    Furthermore, it must be stated that the applicant does not put forward any evidence, even in the form of a mere hypothesis, capable of demonstrating that the sending of that email follows from an alleged leak of information attributable to FRA.

163    In the second place, the same conclusion must be reached as regards the email of 30 November 2015. It is an email sent by B to FRA in which he asks FRA not to disclose his personal data to third parties. He also asks FRA whether it initiated internal procedures relating to the disclosure of confidential documents attached to the emails at issue. That email is not, once again, and for reasons similar to those set out in paragraphs 160 to 162 above, capable of establishing a breach of the confidentiality of the inquiry by FRA.

164    That finding is not called into question by the judgment of 11 July 2019, BP v FRA (T‑838/16, not published, EU:T:2019:494), relied on by the applicant. In that regard, it must be stated that the present case differs clearly from the circumstances of the case that gave rise to that judgment, even though that case also concerns a leak of documents within FRA.

165    In the judgment of 11 July 2019, BP v FRA (T‑838/16, not published, EU:T:2019:494), the Court held that, even if the person responsible for the leak had not been identified, the leak was attributable to FRA in so far as there was a strong indication that an employee of FRA had disclosed the documents. In the present case, the applicant has not adduced the slightest evidence to support the view that the emails of 22 April 2016 and 30 November 2015 followed a leak attributable to FRA.

166    It follows that the seventh plea of unlawfulness is unfounded.

(h)    The eighth plea of unlawfulness, alleging infringement of Article 4(1)(a) and point (a) of the first subparagraph of Article 5 of Regulation No 45/2001

167    In the context of the present plea of unlawfulness, the applicant claims that, by initiating the administrative inquiry, FRA infringed point (a) of the first subparagraph of Article 5 of Regulation No 45/2001. Second, he submits that, by proceeding in that way, FRA also infringed Article 4(1)(a) of that regulation.

168    FRA contends that the present plea of unlawfulness is unfounded.

169    In the first place, the applicant claims that, in so far as there was no legal basis for initiating an administrative inquiry, all the processing of his personal data, namely the processing of private emails carried out by FRA, infringes point (a) of the first subparagraph of Article 5 of Regulation No 45/2001.

170    It is clear that the arguments put forward by the applicant are closely linked to the alleged unlawful conduct of which FRA is accused in the second plea of unlawfulness.

171    Those arguments are again based on the incorrect premiss that FRA initiated the inquiry in an irregular manner, thus disregarding the provisions laid down in Article 86(2) of the Staff Regulations.

172    As is apparent from the analysis carried out in the context of the second plea of unlawfulness, the administrative inquiry in question was initiated on the basis of sufficient evidence of the existence of a failure to comply with obligations under the Staff Regulations, in accordance with Article 86(2) of those regulations. In those circumstances, the applicant cannot validly complain that FRA infringed point (a) of the first subparagraph of Article 5 of Regulation No 45/2001.

173    In the second place, the same conclusion must be reached as regards the applicant’s argument alleging infringement of Article 4(1)(a) of Regulation No 45/2001.

174    Accordingly, the eighth plea of unlawfulness must be rejected as unfounded.

(i)    The ninth plea of unlawfulness, alleging infringement of the duty to have regard for the welfare of officials, lack of objectivity and impartiality and misuse of powers

175    The applicant submits that, during the administrative inquiry, FRA had no regard for his interests. He also submits that the purpose of that inquiry was to identify the source of the information disclosed, namely to focus the inquiry on him when, in the present case, there was no reasonable suspicion that he had committed a disciplinary offence.

176    According to FRA, the arguments put forward by the applicant in the ninth plea of unlawfulness are inadmissible in part and, in any event, unfounded.

177    First and foremost, the applicant’s claims should be divided into three parts. The first alleges breach of the duty to have regard for the welfare of officials and a lack of objectivity and impartiality on the part of FRA in the administrative inquiry. The second alleges a misuse of power. The third part alleges psychological harassment prohibited by Article 12a of the Staff Regulations.

(1)    The first part, alleging infringement of the duty to have regard for the welfare of officials and a lack of objectivity and impartiality on the part of FRA in the administrative inquiry

178    The applicant submits that FRA infringed the duty to have regard for the welfare of officials and failed to act objectively and impartially during the administrative inquiry. In that regard, in essence, he puts forward six complaints:

–        the first, alleging that FRA informed him of the existence of the inquiry only at the time of his reinstatement;

–        the second, alleging that FRA altered the subject matter of the administrative inquiry in order to focus it on him;

–        the third, alleging that the witness statements given in the administrative inquiry were unnecessary, disproportionate and irrelevant;

–        the fourth, alleging that the postponement of the hearing initially scheduled for 6 December 2016 considerably affected his situation;

–        the fifth, alleging that no reasons were given for the decision closing the administrative inquiry without further action;

–        the sixth, alleging breach of the principle of the presumption of innocence with regard to the applicant.

179    FRA contends that all the complaints put forward by the applicant in the context of the present plea of unlawfulness amount to a repetition of the arguments already raised in the other eight pleas of unlawfulness and, accordingly, that those complaints must be rejected as unfounded.

(i)    The first complaint, alleging that FRA informed the applicant of the existence of the inquiry only at the time of his reinstatement

180    The applicant claims that FRA did not inform him of the existence of the administrative inquiry until one year after it was initiated, and thus breached its duty to have regard for the welfare of officials.

181    In that regard, it has already been concluded in paragraph 99 above, in the context of the first part of the third plea of unlawfulness with which the present complaint overlaps, that, by not informing the applicant of the existence of the administrative inquiry as soon as it was initiated, FRA infringed its obligation to provide information under the provisions referred to in paragraphs 91 and 92 above. Consequently, it is not necessary, in order to determine whether the first condition for FRA’s liability, namely the unlawfulness of the conduct alleged against it, is satisfied (see paragraphs 37 and 41 above), to examine whether that conduct also constituted a breach of FRA’s duty to have regard for the welfare of the applicant.

182    In any event, in his written pleadings, the applicant does not put forward any argument to show that such an infringement has an impact on the extent of the damage he claims to have suffered.

(ii) The second complaint, alleging that FRA altered the subject matter of the administrative inquiry in order to focus it on to the applicant

183    The applicant submits that it was only after the delivery of the judgment of 8 October 2015, DD v FRA (F‑106/13 and F‑25/14, EU:F:2015:118), that FRA decided to resume the administrative inquiry and to focus it on him, as demonstrated by the sudden change in its scope.

184    It should be noted that, as submitted in the context of the first plea of unlawfulness (see paragraphs 81 to 83 above), that, in the light of the particularly broad scope of the administrative inquiry and the fact that it related to all the circumstances surrounding the disputed leak and had not been directed against a particular person, the applicant is not justified in maintaining that the subject matter of that investigation was altered, by the extension decision, in order specifically to target him (see paragraphs 50 to 57 above). As observed in paragraph 51 above, as soon as the decision to initiate the administrative inquiry was taken, the applicant had to be regarded as concerned by that decision.

185    It follows that the second complaint must be rejected as unfounded.

(iii) The third complaint, alleging that the witness statements compiled in the administrative inquiry were unnecessary, disproportionate and irrelevant

186    The applicant submits, in essence, that the witness statements compiled in the context of the inquiry were unnecessary, disproportionate and irrelevant in the light of the purpose of the inquiry in question. He maintains, in particular, that most of the witness statements did not contribute to the inquiry in any way since the inquiry report did not refer to them.

187    In that regard, it should be noted that the administration has, in general, a broad discretion with regard to the conduct of administrative inquiries. Given its resources, it is required to investigate files in a proportionate manner, that is, in particular, in a manner that allows it to allocate to each case a fair share of the time available. It enjoys, in particular, in that regard, a wide margin of discretion in assessing the usefulness of the hearing of witnesses (see, to that effect and by analogy, judgment of 16 May 2012, Skareby v Commission, F‑42/10, EU:F:2012:64, paragraph 38).

188    However, the administration is also required, in accordance with the principle of sound administration, to examine carefully and impartially all the relevant aspects of the individual case brought before it and to gather all the factual and legal information necessary for the exercise of its discretion and to ensure the proper conduct and effectiveness of the procedures which it sets in motion (see judgment of 26 September 2014, B&S v Commission, T‑222/13, not published, EU:T:2014:837, paragraph 39 and the case-law cited).

189    It follows that, in the exercise of their administrative inquiry duties, the investigator and head of the inquiry enjoy a broad discretion as to the usefulness of examining a witness; however, that discretion is not unfettered, since it must be exercised taking into account what is necessary in order to establish within a reasonable period all the relevant matters of law and of fact, both incriminating and exculpatory, in accordance with the principle of sound administration and, more specifically, the principle of impartiality (judgment of 5 October 2020, Broughton v Eurojust, T‑87/19, not published, EU:T:2020:464, paragraph 81).

190    In the present case, in order to establish the lack of impartiality on the part of FRA, the applicant merely claims, in essence, that most of the witnesses questioned did not contribute to the inquiry, as is shown by the fact that the inquiry report does not refer to their witness statements in its conclusions.

191    Such an allegation is, however, insufficient to establish lack of impartiality of the administrative inquiry, since the applicant has adduced no evidence to suggest that it was clear, even before the hearings, that the witness statements compiled during the administrative inquiry were not relevant in drawing up the inquiry report.

192    In the light of the foregoing, it must be observed that FRA’s conduct does not reveal a lack of impartiality.

193    Therefore, the third complaint must be rejected as unfounded.

(iv) The fourth complaint, alleging that the postponement of the hearing initially scheduled for 6 December 2016 significantly affected the applicant’s situation

194    The applicant complains that FRA postponed the hearing which had initially been scheduled for 6 December 2016 until 12 January 2017. That postponement considerably affected him in so far as he had to bear the weight of accusations against him over a prolonged period.

195    It should be recalled that the hearing initially scheduled for 6 December 2016 was postponed to a later date on the ground that the FRA Director had decided to take part personally in that hearing.

196    According to Article 3(1) of Annex IX to the Staff Regulations, it is on the basis of the inquiry report and after hearing the official concerned that the appointing authority may take a decision on the action to be taken in the procedure.

197    Thus, the applicant is not justified in claiming that, by postponing the hearing in order to be able to take part in it personally, the FRA Director, in his capacity as appointing authority, breached his duty to have regard for the welfare of officials. Furthermore, the applicant does not put forward any argument to show that the postponement of the hearing was carried out for any purpose other than that laid down by law (see, to that effect, judgment of 6 March 2008, Skareby v Commission, F‑46/06, EU:F:2008:26, paragraphs 156 and 157). Lastly, it should be noted that it was held in paragraph 136 above that the postponement of the hearing took place within a reasonable time.

198    In the light of all of the foregoing, the fourth complaint must be rejected as unfounded.

(v)    The fifth complaint, alleging that no reasons were given for the decision closing the administrative inquiry without further action

199    In so far as the present complaint and the arguments raised by the applicant in connection with the fifth plea of unlawfulness overlap, it must be rejected on the same grounds (see paragraphs 145 to 149 above).

(vi) The sixth complaint, alleging infringement of the principle of the presumption of innocence

200    The applicant submits that the presumption of his innocence was infringed, since, in essence, FRA still considered, despite the closure of the inquiry without further action, that he had disclosed FRA internal information of a confidential nature, without permission and in breach of the provisions of the Staff Regulations. That is apparent from the statements the FRA appointing authority set out, first, in the decision of 21 December 2018 and, second, in witness statements from the FRA Director and another member of FRA’s staff.

201    In the first place, as regards FRA’s criticisms of the applicant in the pre-litigation procedure, the applicant refers specifically to the following extract from the decision of 21 December 2018, which, according to him, is such as to infringe the presumption of his innocence:

‘You were bound by the Staff Regulation[s] not to disclose confidential information, especially taking into account the unauthorised manner through which you had obtained such information …’

202    In that regard, it should be recalled that, in that decision, FRA was essentially responding to the arguments alleging that it had, in essence, wrongly initiated the administrative inquiry.

203    In so far as (i) Article 90 of the Staff Regulations requires the appointing authority to give reasons for its decisions and (ii) the extent of that obligation depends on the specific circumstances of the case and (iii) in order to assess whether it is sufficient, the statement of reasons must be placed in the context in which those decisions were made (see, to that effect, judgments of 7 July 2011, Longinidis v Cedefop, T‑283/08 P, EU:T:2011:338, paragraph 50, and of 21 November 2013, Arguelles Arias v Council, F‑122/12, EU:F:2013:185, paragraph 83), FRA cannot be criticised for having justified its decision in relation to what constituted the basis of the applicant’s allegations. To accept that FRA committed a wrongful act when it was merely responding to the applicant’s arguments would amount to limiting the effectiveness of the pre-litigation procedure, established with the aim of encouraging an amicable settlement of the dispute. 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, would thus be upset.

204    It follows that, in so far as the passages at issue were drawn up in the context of FRA’s response to the applicant’s arguments, they cannot be regarded as capable of undermining the presumption of his innocence.

205    In the second place, as regards the witness statements of the FRA Director and of another member of its staff submitted in the context of the inquiry, it must be observed that the applicant’s argument amounts to calling into question the need not to limit unduly the possibility for the investigators to gather witness statements in order to preserve the effectiveness of the administrative inquiry.

206    It should be noted that, even though the witness statements collected in the course of an administrative inquiry constitute, in general, a valuable contribution to the file, they may also contain elements of a very subjective nature, or even mere hypotheses made by the persons questioned in the context of the inquiry. In that regard, the content of those statements cannot be punished unless it is insulting or criminally reprehensible, such as is the case, in particular, for false accounts.

207    In addition, first, as regards the allegedly insulting and defamatory nature of the witness statement of the FRA Director, the applicant refers to the following passage:

‘What he said was really unbelievable. I sensed from his body language …’

208    It must be held, however, in the light of the considerations set out in paragraph 206 above, that that passage, contrary to the applicant’s assertions, is not insulting and defamatory.

209    Second, as regards the witness statement of the FRA staff member, the applicant refers to the following passage:

‘I want to declare, however, by means of a personal opinion, that there is a group of staff trying constantly to discredit … management by means of … complaints, a flood of [access to documents] requests and disclosure of internal FRA information to journalists: [A] and [the applicant] …’

210    It must be observed that, in that passage, the member of staff of FRA merely expresses his personal opinion as regards the unauthorised transfer of internal documents by the applicant, which is the subject of the administrative inquiry at issue.

211    In those circumstances, it cannot reasonably be concluded that that statement is insulting or defamatory, giving rise to a right to compensation.

212    In addition, to acknowledge that there has been a breach of the presumption of innocence by statements made by witnesses against him, as claimed by the applicant, would in fact amount to preventing any internal inquiry by the institutions, bodies, offices or agencies of the European Union and, consequently, to rendering meaningless the provisions relating to investigations and disciplinary proceedings contained in Annex IX to the Staff Regulations.

213    In those circumstances, the sixth complaint must be rejected as unfounded.

214    In the light of all of the foregoing, the present part must be rejected as unfounded.

(2)    The second part, alleging misuse of powers

215    The applicant considers that FRA’s conduct during the administrative inquiry constitutes a misuse of powers.

216    In that regard, he claims that the change in the subject matter of the inquiry was a direct consequence of the letter of 30 November 2015 sent by B to the new FRA Director, warning the latter of a possible visit by the European Anti-Fraud Office (OLAF) in the context of an inquiry concerning the documents disclosed by the applicant. That letter not only suggests that the applicant was responsible for the initiation of an inquiry by OLAF, but also reveals a close relationship between B and FRA. It follows that the administrative inquiry, the purpose of which was initially to identify the source(s) of confidential information disclosed externally, was amended specifically to target the applicant, in order to compromise his ‘legal position’ at FRA after his reinstatement.

217    In its written pleadings, FRA contends that the argument alleging misuse of powers must be rejected as inadmissible, since it was not raised at any time during the pre-litigation procedure.

218    However, for reasons similar to those set out in paragraph 152 above, it is necessary to examine at the outset whether the applicant’s complaint is well founded.

219    It should be borne in mind that, according to settled case-law, misuse of powers is deemed to exist and affect the presumption of legality enjoyed by the act of an appointing authority only if it is proved that, in adopting conduct at issue, the latter pursued an aim other than that covered by the rules in question or if it appears, on the basis of objective, relevant and consistent evidence, that the act in question was adopted for the purpose of achieving an end other than that stated (see, to that effect, judgment of 3 October 2006, Nijs v Court of Auditors, T‑171/05, EU:T:2006:288, paragraph 64 and the case-law cited, and order of 22 October 2015, Macchia v Commission, T‑80/15 P, EU:T:2015:845, paragraph 67 and the case-law cited).

220    In that regard, it should be noted that, in so far as, as is apparent from the analysis carried out in the context of the first plea of unlawfulness (see paragraphs 51 to 58 above), the administrative inquiry sought to establish all the facts connected with the leak at issue and was not directed against a specific person, it does not appear that the inquiry was initiated for purposes other than those stated. It must be stated that the applicant has not adduced any evidence capable of calling that conclusion into question.

221    It follows that the second part of the ninth plea of unlawfulness must be rejected as unfounded.

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

222    The applicant also considers that the systematic improper behaviour of FRA throughout the administrative inquiry amounts to psychological harassment within the meaning of Article 12a of the Staff Regulations.

223    In that regard, it should be borne in mind that the concept of psychological harassment is defined, for the purposes of Article 12a(3) of the Staff Regulations, as ‘improper conduct’ involving physical behaviour, spoken or written language, gestures or other acts taking place ‘over a period’ that are intentional and that may undermine the personality, dignity or physical or psychological integrity of any person (see judgment of 19 September 2019, FV v Council, T‑27/18 RENV, not published, EU:T:2019:621, paragraph 152 and the case-law cited).

224    Even though it is true that it is not necessary to establish that the behaviour covered by the concept of psychological harassment was committed with the intention of undermining the personality, dignity or physical or psychological integrity of a person, the fact remains that the conduct in question must, under Article 12a(3) of the Staff Regulations, be improper (see, to that effect and by analogy, judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraphs 77 and 78 and the case-law cited).

225    In that regard, the classification of ‘harassment’ is subject to the condition that it assumes sufficient objective reality, in the sense that an impartial and reasonable observer, with normal sensitivity and placed in the same conditions, would regard the conduct or act in question as excessive and open to criticism (see judgment of 19 September 2019, FV v Council, T‑27/18 RENV, not published, EU:T:2019:621, paragraph 153 and the case-law cited).

226    In his written pleadings, the applicant relies, in vague terms, on ‘the systematic improper behaviour of the appointing authority throughout the administrative inquiry’. In particular, he seems to be seeking to criticise the appointing authority, first, for the fact that the witness statements compiled during the inquiry were not relevant, second, for having postponed the hearing initially scheduled for 6 December 2016 until 12 January 2017 and, third, for failing to state the reasons for the decision closing the administrative inquiry.

227    However, it must be stated that, as follows from the analysis carried out, in particular, in paragraphs 195 to 198, 199 and 203 to 213 above, the alleged offences and attacks on dignity of which the applicant claims to be a victim are not, even taken as a whole, unlawful, in that they form part of the normal conduct of an administrative inquiry.

228    Even though it is true, as follows from the analysis of the third plea of unlawfulness (see, in particular, paragraph 99 above), that FRA should have informed the applicant of the existence of the administrative inquiry as soon as it was initiated, such a circumstance cannot, in the light of the case-law cited in paragraphs 223 to 225 above and in the absence of other evidence, constitute objective evidence of psychological harassment prohibited by Article 12a of the Staff Regulations.

229    Thus, since, in the context of the present part, the applicant does not put forward any other evidence capable of constituting psychological harassment within the meaning of Article 12a of the Staff Regulations, it must be rejected as unfounded, as must the ninth plea of unlawfulness in its entirety.

(j)    The findings concerning the unlawfulness of the alleged conduct of FRA

230    It follows from the foregoing analysis that the third and fourth pleas of unlawfulness, alleging, first, that the duration of the administrative procedure was unreasonable and, second, breach of the obligation to inform the applicant of the existence of an administrative inquiry in good time and to communicate documents directly related to the allegations made against him are well founded.

231    In so far as the conditions for establishing liability referred to in paragraph 37 above are cumulative, it is necessary to rule on the actual harm suffered and on the causal link between that harm and the unlawful conduct.

2.      The actual damage suffered and the causal link

232    The applicant seeks compensation for the non-material damage which he claims to have suffered as a result of FRA’s alleged misconduct. He submits that FRA’s conduct caused him non-material damage in the form of stress, anxiety, humiliation and infringement of his privacy and personal data. He submits that FRA’s accusations against him and the length of the administrative procedure had a negative impact on his professional and family life and seriously undermined his dignity, reputation and integrity.

233    As regards, in the first place, the damage alleged by the applicant concerning the excessive duration of the administrative procedure, it should be noted that, according to the case-law, disciplinary proceedings place the official concerned in a situation of uncertainty about his professional future, inevitably causing him 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 the level of what may be considered justifiable. Hence, the excessive duration of disciplinary proceedings is to be taken as giving rise to a presumption that the person concerned has suffered non-material damage (see, to that effect and by analogy, judgment of 13 January 2010, A and G v Commission, F‑124/05 and F‑96/06, EU:F:2010:2, paragraph 147).

234    First, as regards the period prior to the date on which the applicant was informed of the administrative inquiry, it must be stated that, in so far as, during that period, he could not reasonably be exposed to a risk of stress or anxiety which might be caused by such a procedure, the applicant cannot rely on that period in order to establish the existence of damage to him.

235    Second, as regards the period after 30 March 2016, as is apparent from the analysis of the fourth plea of unlawfulness (see paragraphs 121 to 136 above), although it is true that FRA should have appointed the investigation panel sooner, the fact remains that, as is apparent from paragraph 136 above, the procedure took place within a reasonable time after the applicant was informed of the existence of the inquiry. It follows that the existence of non-material damage alleged by the applicant caused by the excessive length of the administrative procedure, within the meaning of the case-law set out in paragraph 233 above, cannot be presumed.

236    It must be stated that, in his written pleadings, the applicant has not adduced any evidence to permit the view that, during the administrative procedure, he was exposed to a level of stress and anxiety going beyond what may be considered acceptable in the context of an administrative procedure.

237    As regards, in the second place, the other damage 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 also applies with regard to non-material damage. In that regard, 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).

238    In the present case, in order to establish the actual damage suffered for which he seeks compensation, the applicant merely claims that the attitude of and unlawful acts committed by FRA during the administrative inquiry undermined his dignity and integrity and were particularly harmful in that they profoundly harmed him psychologically. In that regard, he has not adduced the slightest evidence in support of his claims. Consequently, the applicant cannot be regarded as having proved the actual and certain nature of the non-material damage which he claims to have suffered.

239    Accordingly, the applicant’s arguments relating to the existence of non-material damage must be rejected.

240    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).

241    As regards the existence of a causal link, the applicant merely asserts that, if the unlawful acts had not taken place, he would not have suffered the damage on which he relies.

242    However, in the present case, the applicant does not put forward any concrete evidence to support the conclusion that the damage on which he relies derives from FRA’s wrongful conduct during the administrative inquiry, with the result that his argument must be regarded as pure speculation.

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

3.      Conclusion

244    The cumulative nature of the conditions giving rise to liability referred to in paragraph 37 above means that, if any one of them is not satisfied, the action for damages must be dismissed in its entirety (judgment of 8 May 2003, T. Port v Commission, C‑122/01 P, EU:C:2003:259, paragraph 30).

245    It follows that, since only one of the three conditions referred to in paragraph 244 above is satisfied in the present case, the applicant’s claim for damages and, therefore, the action in its entirety must be rejected.

 Costs

246    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.

247    Since the applicant has been unsuccessful, he must be ordered to bear his own costs and to pay those incurred by FRA, in accordance with the form of order sought by FRA. In that regard, as regards the applicant’s request that he should not be ordered to pay the costs even if his action is dismissed since FRA, owing to its conduct, left him no choice but to bring an action, it is sufficient to observe that he has not put forward any argument capable of substantiating that assertion.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby:

1.      Dismisses the action.

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

Delivered in open court in Luxembourg on 21 December 2021.

Table of contents

I. Background to the dispute

II. Procedure and forms of order sought

III. Law

A. The second and third heads of claim

B. The first head of claim

1. The unlawfulness of the alleged conduct of FRA

(a) The first plea of unlawfulness, alleging that the investigators did not have a mandate to investigate, first, a possible infringement of Articles 11 and 17 of the Staff Regulations by the applicant and, second, the email of 5 March 2014, with the result that the administrative inquiry has no legal basis and infringes Article 86(2) of the Staff Regulations and Article 2 of Decision 2013/01

(b) The second plea of unlawfulness, alleging that the decision to initiate the administrative inquiry was not based on the existence of a reasonable suspicion

(c) The third plea of unlawfulness, alleging that FRA did not inform the applicant of the initiation of the administrative inquiry or of the decisions relating to it

(1) The first part, alleging that FRA did not inform the applicant in good time that the administrative inquiry had been initiated

(2) The second part, alleging that FRA failed to disclose to the applicant all the documents directly related to the allegations made against him

(d) The fourth plea of unlawfulness, alleging that the duration of the administrative procedure was excessive and unreasonable

(e) The fifth plea of unlawfulness, alleging that the decision closing the inquiry was not reasoned

(f) The sixth plea of unlawfulness, alleging that the inquiry report contains an error of law and a manifest error of assessment

(g) The seventh plea of unlawfulness, alleging infringement of the confidentiality of the inquiry by FRA

(h) The eighth plea of unlawfulness, alleging infringement of Article 4(1)(a) and point (a) of the first subparagraph of Article 5 of Regulation No 45/2001

(i) The ninth plea of unlawfulness, alleging infringement of the duty to have regard for the welfare of officials, lack of objectivity and impartiality and misuse of powers

(1) The first part, alleging infringement of the duty to have regard for the welfare of officials and a lack of objectivity and impartiality on the part of FRA in the administrative inquiry

(i) The first complaint, alleging that FRA informed the applicant of the existence of the inquiry only at the time of his reinstatement

(ii) The second complaint, alleging that FRA altered the subject matter of the administrative inquiry in order to focus it on to the applicant

(iii) The third complaint, alleging that the witness statements compiled in the administrative inquiry were unnecessary, disproportionate and irrelevant

(iv) The fourth complaint, alleging that the postponement of the hearing initially scheduled for 6 December 2016 significantly affected the applicant’s situation

(v) The fifth complaint, alleging that no reasons were given for the decision closing the administrative inquiry without further action

(vi) The sixth complaint, alleging infringement of the principle of the presumption of innocence

(2) The second part, alleging misuse of powers

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

(j) The findings concerning the unlawfulness of the alleged conduct of FRA

2. The actual damage suffered and the causal link

3. Conclusion

Costs

*      Language of the case: English.

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