Contents
Judgment of the Court (Fifth Chamber)12 December 2024note(Appeal — Civil service — Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union — Members of the temporary staff — Disciplinary proceedings — Administrative investigation — Concept of plagiarism — Appointment by the appointing authority of an investigator with whom it has a business relationship — Conflict of interest — Article 41(1) of the Charter of Fundamental Rights of the European Union — Objective impartiality — Article 17a — Official’s freedom of expression — Articles 11, 12 and 21 — Respect for the principles of loyalty and impartiality)In Case C‑680/22 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 4 November 2022,DD, represented by N. Lorenz, Rechtsanwältin,the other party to the proceedings being:European Union Agency for Fundamental Rights (FRA), represented initially by M. O’Flaherty, and subsequently by S. Rautio, acting as Agents, and by B. Wägenbaur, Rechtsanwalt,THE COURT (Fifth Chamber),composed of I. Jarukaitis, President of the Fourth Chamber, acting as President of the Fifth Chamber, E. Regan and Z. Csehi (Rapporteur), Judges,Advocate General: P. Pikamäe,Registrar: A. Calot Escobar,having regard to the written procedure,after hearing the Opinion of the Advocate General at the sitting on 7 December 2023,gives the following
Judgment
1By his appeal, DD seeks to have set aside the judgment of the General Court of the European Union of 7 September 2022, DD v FRA (T‑470/20, ‘the judgment under appeal’, EU:T:2022:511), by which that court dismissed his action seeking, first, annulment of the decision of the European Union Agency for Fundamental Rights (FRA) of 12 November 2019 by which FRA imposed on him the disciplinary sanction of removal from post (‘the decision to remove from post’) and of the decision of 15 April 2020 rejecting the complaint against the decision to remove from post (‘the decision rejecting the complaint’) and, secondly, compensation for the material and non-material damage which he allegedly suffered.
Legal framework
2The first paragraph of Article 11 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) provides:‘An official shall carry out his duties and conduct himself solely with the interests of the [European] Union in mind. He shall neither seek nor take instructions from any government, authority, organisation or person outside his institution. He shall carry out the duties assigned to him objectively, impartially and in keeping with his duty of loyalty to the [European] Union.’
3Article 12 of the Staff Regulations provides:‘An official shall refrain from any action or behaviour which might reflect adversely upon his position.’
4Article 17a of the Staff Regulations provides in paragraph 1:‘An official has the right to freedom of expression, with due respect to the principles of loyalty and impartiality.’
5Article 21 of the Staff Regulations reads:‘An official, whatever his rank, shall assist and tender advice to his superiors; he shall be responsible for the performance of the duties assigned to him.An official in charge of any branch of the service shall be responsible to his superiors in respect of the authority conferred on him and for the carrying out of instructions given by him. The responsibility of his subordinates shall in no way release him from his own responsibilities.’
6Title VI of the Staff Regulations is entitled ‘Disciplinary measures’. Title VI includes Article 86 of the Staff Regulations, which provides:1. Any failure by an official or former official to comply with his obligations under these Staff Regulations, whether intentionally or through negligence on his part, shall make him liable to disciplinary action.2. Where the Appointing Authority or [the European Anti-fraud Office (OLAF)] becomes aware of evidence of failure within the meaning of paragraph 1, they may launch administrative investigations to verify whether such failure has occurred.3. Disciplinary rules, procedures and measures and the rules and procedures covering administrative investigations are laid down in Annex IX.’
7Article 1 of Annex IX to the Staff Regulations, entitled ‘Disciplinary proceedings’, provides:1. Whenever an investigation by OLAF reveals the possibility of the personal involvement of an official, or a former official, of an institution, that person shall rapidly be informed, provided this is not harmful to the investigation. In any event, conclusions referring by name to an official may not be drawn once the investigation has been completed without that official concerned having been given the opportunity to comment on facts concerning him. The conclusions shall make reference to these comments.2. In cases that demand absolute secrecy for the purposes of the investigation and requiring the use of investigative procedures falling within the remit of a national judicial authority, compliance with the obligation to invite the official to comment may, in agreement with the Appointing Authority, be deferred. In such cases, no disciplinary proceedings may be initiated before the official has been given a chance to comment.3. If, following an OLAF investigation, no case can be made against an official about whom allegations have been made, the investigation in question shall be closed, with no further action taken, by decision of the Director of OLAF, who shall inform the official and his institution in writing. The official may request that this decision be inserted in his personal file.’
8Article 2 of Annex IX to the Staff Regulations provides:1. The rules set out in Article 1 of this Annex shall apply, with any necessary changes, to other administrative enquiries carried out by the Appointing Authority.2. The Appointing Authority shall inform the person concerned when the investigation ends, and shall communicate to him the conclusions of the investigation report and, on request and subject to the protection of the legitimate interests of third parties, all documents directly related to the allegations made against him.…’
9Article 3 of Annex IX to the Staff Regulations provides:‘On the basis of the investigation report, after having notified the official concerned of all evidence in the files and after hearing the official concerned, the Appointing Authority may:(a) decide that no case can be made against the official, in which case the official shall be informed accordingly in writing; or(b) decide, even if there is or appears to have been a failure to comply with obligations, that no disciplinary measure shall be taken and, if appropriate, address a warning to the official; or(c) in the case of failure to comply with obligations within the meaning of Article 86 of the Staff Regulations:(i) decide to initiate the disciplinary proceedings provided for in Section 4 of this Annex, or(ii) decide to initiate disciplinary proceedings before the Disciplinary Board.’
10Article 22 of Annex IX to the Staff Regulations provides:1. After hearing the official, the Appointing Authority shall take its decision as provided for in Articles 9 and 10 of this Annex within two months of receipt of the opinion of the Board. Reasons must be given for the decision.2. If the Appointing Authority decides to close the case without imposing any disciplinary penalty, it shall so inform the official concerned in writing without delay. The official concerned may request that this decision be inserted in his personal file.’
Background to the dispute
11The background to the dispute is set out in paragraphs 2 to 36 of the judgment under appeal as follows:2 The applicant was recruited on 1 August 2000 by the Authority empowered to conclude contracts of employment (“the AECC”) of a body of the European Union, the European Monitoring Centre on Racism and Xenophobia (EUMC), now 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 Union (“the CEOS”). Initially employed under a fixed-term contract, he was given a contract of indefinite duration from 16 December 2006.3 By letter of 13 June 2013, the then Director of FRA informed the applicant of his decision to terminate his contract.4 By judgment of 8 October 2015, DD v FRA (F‑106/13 and F‑25/14, [“the annulment judgment”,] EU:F:2015:118), the Civil Service Tribunal annulled the decision to terminate on the grounds that, prior to the adoption of the decision, the Director of FRA had not expressly informed the applicant that, on the basis of various incidents, he was considering terminating his contract and had not invited him to make any observations in that regard.5 On 29 February 2016, FRA, under a new director, reinstated the applicant in his position, as part of the execution of the [annulment judgment].6 By email of the same day, the applicant was asked by his head of department to prepare a 15- to 20-page internal brief, by 18 March 2016 at the latest, on human rights standards and the case-law related to freedom of thought, conscience and religion, at international and EU level.7 By email of 18 March 2016, the applicant sent to his head of department a 31-page document described as a “very first tentative draft of the brief on freedom of religion”, entitled “Internal Brief on possible relevant FRA projects on the freedom of thought, conscience and religion” (“the brief at issue”).8 At the beginning of April 2016, the brief at issue was stored in FRA’s document management system (“the DMS”), to which all the applicant’s colleagues had access.9 On 7 April 2016, the applicant’s head of department informed the applicant that he had forwarded the brief at issue to the Director of FRA and invited him to send the link to the document in the DMS to one of his colleagues so that he could read the document and the analysis contained therein.10 By email of 16 October 2017, the applicant’s head of department asked him to revise the brief at issue and to expand on the analysis devoted to freedom of religion from the European Union’s point of view, in view of possible publication.11 Furthermore, on 7 November 2017, the applicant lodged an internal appeal against his assessment report for the year 2016 (“the 2016 assessment report”), arguing that the assessment of his effectiveness, capacity and conduct should have been “very good”, instead of “satisfactory”. In that context, with regard to the brief at issue, first, the applicant argued that it was regrettable that, while during the appraisal dialogue his head of department, in his capacity as assessor, had confirmed that the presentation was very useful and achieved its purpose, he had criticised it in his subsequent comments. Secondly, the applicant argued that the assessor’s comments on the fact that the brief at issue consisted mainly of case-law references were inaccurate, as the presentation also contained a legal, conceptual and policy analysis.12 On 1 December 2017, the applicant submitted a revised version of the brief at issue.13 On 5 December 2017, the Director of FRA rejected the internal appeal against the 2016 assessment report. On that occasion, the Director of FRA stated that he had learned that the brief at issue was, to a very large extent, a direct copy of several sources, including Council of Europe documents, which were not referenced in that brief, and that the applicant had not informed his head of department of that state of affairs, leading him to believe that that brief was the result of his own work.14 On 9 February 2018, the Director of FRA consulted [OLAF] about the possible opening of an administrative investigation into the applicant’s conduct.15 On 20 March 2018, OLAF decided not to open an investigation due to the fact that there were “not sufficient elements indicating that a potential fraud, corruption or other illegal activities have occurred”.16 On 23 March 2018, the Director of FRA opened an administrative investigation into the conduct of the applicant in relation to the brief at issue (“the decision to open the investigation”). The investigating officer [“the investigator”] declared an absence of conflict of interest. The purpose of the investigation was to determine, first, the precise extent to which the brief at issue had been presented by the applicant as the result of his own work and included extracts from documents external to FRA which were not cited or referenced, secondly, which of those documents, if any, were covered by copyright, thirdly, whether there were other documents written by the applicant in the context of his work at FRA in the field of freedom of thought, conscience and religion which met the two conditions mentioned above and, fourthly, where appropriate, whether there had been any infringement of the [Staff Regulations] or of intellectual property law.17 On 23 and 24 April 2018, the investigator interviewed seven witnesses and the applicant, who provided the investigator with written observations.18 On 17 June 2018, the investigator sent the applicant his preliminary findings.19 On 2 July 2018, the applicant made observations on the investigator’s preliminary findings.20 On 23 July 2018, the investigator submitted his final report (“the inquiry report”), which concluded that the applicant had failed to comply with Articles 11, 12 and 21 of the Staff Regulations and with his duties of loyalty and cooperation. The investigator found, in essence, first, that copying and using the work of others without reference to it and passing it off as his own constituted a form of deception, dishonesty and misappropriation contrary not only to Article 12 of the Staff Regulations but also to almost any moral standard, [secondly], that the applicant had deliberately misled the members of his department and concealed important information, thereby infringing Articles 11 and 12 of the Staff Regulations, third, that the fact that the applicant had taken three weeks to draft the brief at issue, which was largely a copy, constituted another, relatively minor, infringement of Article 12 of the Staff Regulations, fourth, that the reference to the brief at issue as an achievement in the context of his assessment for the year 2016 was misleading and also constituted an infringement of Article 12 of the Staff Regulations, fifth, that the use of copyrighted material without informing the author, namely the Council of Europe, further infringed Article 12 of the Staff Regulations, sixth, that the applicant had acted in a misleading and/or dishonest manner and, as a result, had not acted solely with the interests of the European Union in mind, in breach of Article 11 of the Staff Regulations and the duty of loyalty, and, seventh, that the use of the work of others without reference to it and without informing his superiors violated Article 21 of the Staff Regulations and the applicant’s duty of cooperation.21 On 15 October 2018, the applicant was heard by the Director of FRA under Article 3 of Annex IX to the Staff Regulations (“the hearing of 15 October 2018”) and subsequently submitted a written statement, dated the same day.22 By a decision of 23 October 2018, the Director of FRA initiated disciplinary proceedings before the Disciplinary Board against the applicant (“the decision to initiate disciplinary proceedings”). That decision was notified to the applicant on 7 November 2018.23 On 26 February 2019, the Disciplinary Board was constituted by decision of the Director of FRA.24 On 27 February 2019, the Director of FRA prepared the report to the Disciplinary Board pursuant to Article 12 of Annex IX to the Staff Regulations (“the report of the Director of FRA”).25 On 21 March 2019, the applicant submitted his statement of defence to the chair of the Disciplinary Board.26 On 22 March 2019, the applicant’s hearing before the Disciplinary Board took place.27 On 7 May 2019, the Disciplinary Board issued a reasoned opinion (“the Disciplinary Board’s opinion”), in accordance with Article 18 of Annex IX to the Staff Regulations, finding that the accusations of conduct contrary to the applicant’s obligations under Articles 11, 12 and 21 of the Staff Regulations were well founded, namely presenting documents written by other people as his own without acknowledging the sources thereof. The Disciplinary Board recommended that the applicant be demoted by two grades, to grade AD 7. The Disciplinary Board did not mention any mitigating circumstances.28 The Disciplinary Board noted, in essence, first, that the applicant had acted not only with the interests of the European Union in mind, but with his own interests in seeking credit for a text of which he was not the author, secondly, that he had not adopted the responsible behaviour expected of an agent of FRA, thirdly, that his actions could have caused damage to FRA’s reputation, and fourthly, that he had not assisted his superiors, or had even acted against them, by presenting the work of others as his own.29 Thus, the Disciplinary Board found that the applicant had infringed, first, Article 11 of the Staff Regulations, by deliberately presenting copied work as his own, secondly, Article 12 of the Staff Regulations, in so far as presenting the work of others as his own would have had an adverse effect on the applicant’s reputation, and thirdly, Article 21 of the Staff Regulations, in so far as the applicant had not carried out the tasks entrusted to him, but had presented the work of others as his own and there was a risk that the brief at issue, or parts of it, would be incorporated in one or more documents published by FRA, which could have had an adverse effect on the reputation of the latter.30 On 11 July 2019, the applicant was heard by the Director of FRA in accordance with Article 22 of Annex IX to the Staff Regulations (“the hearing of 11 July 2019”) and submitted his written statement.31 On 11 October 2019, the applicant received a note from the Director, dated 10 October 2019, expressing his intention to impose the sanction of removal from post and inviting him to submit his observations in that regard in writing within 10 working days.32 On 24 October 2019, the applicant sent his observations to the Director of FRA.33 On 12 November 2019, the Director of FRA, as the AECC, adopted the decision to remove from post, taking effect on 15 November 2019. In that decision, the Director of FRA endorsed the conclusions of the Disciplinary Board, except for the proposed sanction, as he considered that downgrading did not sufficiently reflect the seriousness of the breaches of professional obligations under Articles 11, 12 and 21 of the Staff Regulations. The Director of FRA noted, in particular, first, that the Disciplinary Board had not referred to any mitigating circumstances, but had mentioned aggravating circumstances, namely, that the applicant’s conduct was deliberate, that he had tried to obtain personal credit for work that constituted plagiarism, that he had not recognised the seriousness of his conduct and that there had been a real risk of damage to FRA’s reputation and, secondly, that the bond of trust had been seriously undermined.34 Furthermore, the Director of FRA considered that the Disciplinary Board had not sufficiently taken into account the seriousness of the infringements of the Staff Regulations with regard to, first, the conduct of the applicant, which the Director of FRA described as an “infringement of the utmost seriousness” and, secondly, the effects of such conduct on FRA’s reputation, since, in his view, the applicant, acting alone, had deliberately created a serious risk of damage to that reputation over a considerable period of time. The Director of FRA agreed with the Disciplinary Board’s finding that the bond of trust had been seriously undermined, but considered that the bond had been irrevocably broken and, therefore, that downgrading was not an appropriate sanction.35 On 16 December 2019, the applicant lodged a complaint against the decision to remove from post.36 On 15 April 2020, the Director of FRA issued the decision rejecting the complaint.’
The procedure before the General Court and the judgment under appeal
12By application lodged at the Registry of the General Court on 23 July 2020, the appellant brought the action referred to in paragraph 1 above.
13By that action, the appellant asked the General Court, first, to annul the decision to remove from post, secondly, if necessary, to annul the decision rejecting the complaint, thirdly, to compensate him for the material and non-material damage he had suffered and, fourthly, to order FRA to pay the costs. In support of his first two heads of claim, the appellant put forward eight principal pleas in law and one plea in law in the alternative:– the first, alleging breach of the principle of legal certainty, errors of law and a manifest error of assessment, infringement of Paragraph 7(1) of the Bundesgesetz über das Urheberrecht an Werken der Literatur und der Kunst und über verwandte Schutzrechte (Urheberrechtsgesetz) (Law on copyright in literary and artistic works and related rights) of 9 April 1936 (BGBl. 1936, 111/1936) and infringement of Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’), in that, first, plagiarism was considered to constitute an infringement of the Staff Regulations, secondly, the copied texts were not protected by the Law on copyright in literary and artistic works and related rights, and, thirdly, his freedom of expression was breached;– the second, breach of the duties of diligence and care by the investigator and by the Director of FRA at the time of the initiation of the disciplinary proceedings, by the decision to remove from post and by the Disciplinary Board, and also breach of the presumption of innocence and of the requirement of a high standard of proof in administrative investigations and disciplinary proceedings;– the third, lack of neutrality, impartiality and objectivity on the part of the Director of FRA as the AECC, breach of the presumption of innocence and abuse of power;– the fourth, manifest errors of assessment concerning the appellant’s infringement of Articles 11, 12 and 21 of the Staff Regulations;– the fifth, unlawful initiation of the administrative investigation in the absence of any prima facie evidence, and unlawful initiation of the disciplinary proceedings;– the sixth, non-compliance with the framework of the investigation by the investigator and infringement of Article 4(2) and Article 7(6) of FRA Management Board Decision 2013/01 of 22 May 2013 on the conduct of administrative investigations and disciplinary proceedings, of Article 4(1)(a) to (d) and Article 5(1)(a) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ 2018 L 295, p. 39), and, prior to the applicability of Regulation 2018/1725, of Article 4(1)(a) to (d) and Article 5(1)(a) 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), and infringement of the effects of an annulment judgment;– the seventh, the investigator’s lack of impartiality, neutrality and objectivity;– the eighth, breach of the rights of the defence, in particular the right to be heard, infringement of Articles 1, 2 and 12 of Annex IX to the Staff Regulations; and– the ninth, submitted in the alternative, breach of the principle of proportionality by imposing the sanction of removal from post in respect of the facts alleged against the appellant.
14In the judgment under appeal, the General Court rejected the appellant’s claims for annulment and for damages in their entirety. The General Court also decided that there were no grounds for granting the requests made for measures of organisation of procedure.
Forms of order sought by the parties to the appeal
15The appellant claims that the Court of Justice should:– set aside the judgment under appeal;– consequently, annul the decision to remove from post and, if appropriate, annul the decision rejecting the complaint;– compensate him for the material and non-material damage suffered; and– order FRA to pay all the costs.
16FRA contends that the Court of Justice should:– dismiss the appeal; and– order the appellant to pay all the costs.
The appeal
The first ground of appeal
17By his first ground of appeal, the appellant alleges, in essence, that the General Court committed, in paragraphs 179 to 193 of the judgment under appeal, a number of errors of law in its assessments concerning the objective impartiality of the investigator and failed to provide a sufficient statement of reasons in that regard. That ground of appeal is divided into two parts.
Arguments of the parties
18By the first part of his first ground of appeal, the appellant claims, first, that the General Court, in finding, in paragraphs 179 to 185 of the judgment under appeal, that the evidence he adduced was not sufficient to establish that the investigator lacked subjective impartiality, failed to examine, in the light of that evidence, a possible lack of objective impartiality on his part. An examination of the facts in the light of the lack of objective impartiality is sufficient, even if there is no evidence to establish the lack of subjective impartiality.
19Secondly, contrary to what the General Court held in paragraphs 186 to 192 of the judgment under appeal, in order to find a lack of objective impartiality, it is sufficient that a legitimate doubt in that regard exists and cannot be dispelled. The applicant also submits that, in the present case, the doubt as to the impartiality of the investigator is legitimate from the perspective of third-party observers. According to the appellant, any doubt as to the independence or impartiality of an external consultant, who also happens to give legal advice and is repeatedly paid by the employer, is legitimate in the eyes of a third-party observer. Furthermore, the findings in paragraphs 189 to 191 of the judgment under appeal confirm the existence of a legitimate doubt, but the General Court incorrectly classified those facts. In addition, the General Court committed another error of law in paragraph 187 of the judgment under appeal, in that it was not for the appellant, but for FRA, to dispel that doubt.
20The appellant submits, thirdly, that the General Court’s conclusion, in paragraph 191 of the judgment under appeal, that the amounts paid to the investigator were justified by the amount of work entrusted to him is irrelevant in the present case, since it does not dispel the legitimate doubt that the investigator had a conflict of interest based on financial reasons. A conflict of interest of that kind constitutes a most serious case of illegality and, as such, any conflict of interest for financial reasons must be regarded as relevant, notwithstanding the amount concerned. Consequently, the appellant submits that, contrary to what the General Court held in paragraph 192 of the judgment under appeal, the case-law arising from the judgment of 18 September 2012, Allgeier v FRA (F‑58/10, EU:F:2012:130), is relevant in the present case.
21Fourthly and lastly, the appellant claims that the General Court distorted the evidence and made a manifest error of assessment in paragraph 189 of the judgment under appeal. He claims in that regard that it was apparent from the evidence submitted for the General Court’s assessment that the service provided by the investigator, for which he was paid, actually consisted of legal advice.
22By the second part of his first ground of appeal, the appellant submits that the General Court did not examine to the requisite legal standard the evidence and facts submitted for its assessment and that it erred in law in paragraphs 187 to 193 of the judgment under appeal by rejecting, in paragraphs 292 to 296 of that judgment, the appellant’s first and second requests for a measure of organisation of procedure.
23FRA contends, as a preliminary point, that the appeal is, to a large extent, a repetition of the views and arguments put forward by the appellant in the application and in the reply at first instance. Consequently, in its view, a number of the allegedly legal arguments put forward in the appeal are in reality attempts to challenge facts.
24FRA contends that the first ground of appeal is in part inadmissible and, in any event, manifestly unfounded.
Assessment of the Court
25By the second part of the first ground of appeal, which it is appropriate to examine at the outset, the appellant criticises paragraphs 292 to 296 of the judgment under appeal in so far as, in those paragraphs, the General Court wrongly refused to grant the measures of organisation of procedure which he had requested in order to demonstrate the existence of an alleged lack of impartiality on the part of the investigator and, consequently, did not adequately examine the evidence submitted for its assessment. In addition, it distorted that evidence in paragraphs 187 to 193 of that judgment.
26In that regard, it must be borne in mind that, according to the settled case-law of the Court of Justice, the General Court is the sole judge of whether the information available to it concerning the cases before it needs to be supplemented (judgment of 4 March 2021, Liaño Reig v SRB, C‑947/19 P, EU:C:2021:172, paragraph 98 and the case-law cited).
27Accordingly, the appellant cannot reasonably challenge, at the stage of the present appeal, the General Court’s decision not to adopt the measures of organisation of procedure which he had suggested should be adopted in his written pleadings at first instance.
28As regards the first part of the first ground of appeal, alleging, in essence, that the General Court erred in law by ruling out the existence of any legitimate doubt as to the objective impartiality of the investigator, it must be recalled that, according to settled case-law, the institutions, bodies, offices and agencies of the European Union are required to respect the fundamental rights guaranteed by EU law, which include the right to good administration enshrined in Article 41 of the Charter. That article states, inter alia, that every person has the right to have his or her affairs handled impartially by those institutions, bodies, offices and agencies of the European Union (see, to that effect, judgment of 11 January 2024, Hamers v Cedefop, C‑111/22 P, EU:C:2024:5, paragraphs 44 and 45 and the case-law cited).
29In that regard, the Court of Justice has made clear that the need for impartiality, required of the institutions, bodies, offices and agencies of the European Union in carrying out their missions, is intended to guarantee equality of treatment, which is at the heart of the European Union. That requirement is intended, inter alia, to avoid a situation where there could be a conflict of interest on the part of officials or servants acting on behalf of those institutions, bodies, offices and agencies. Having regard to the fundamental importance of ensuring the independence and probity of the institutions, bodies, offices and agencies of the European Union as regards both their internal functioning and external reputation, the requirement of impartiality covers all circumstances in which an official or servant who is called upon to decide on an issue must reasonably consider that issue as being of such a nature as to be viewed by third parties as a possible source of impairment of his or her independence in that matter (judgment of 11 January 2024, Hamers v Cedefop, C‑111/22 P, EU:C:2024:5, paragraph 46 and the case-law cited).
30That requirement of impartiality has a subjective component, by virtue of which no member of the institution concerned may show bias or personal prejudice, and an objective component. In accordance with the latter component, on which the appellant relies, each institution, body, office or agency of the European Union must offer sufficient guarantees to exclude any legitimate doubt as to any bias (judgment of 14 March 2024, D & A Pharma v Commission and EMA, C‑291/22 P, EU:C:2024:228, paragraph 73 and the case-law cited).
31More particularly, in order to show that the organisation of an administrative procedure does not ensure sufficient guarantees to exclude any legitimate doubt as to possible bias, it is not necessary to prove lack of impartiality. It is sufficient for a legitimate doubt in that regard to arise which cannot be dispelled (judgment of 11 January 2024, Hamers v Cedefop, C‑111/22 P, EU:C:2024:5, paragraph 47 and the case-law cited).
32It follows that persons whose affairs are handled by an EU institution, body, office or agency cannot be required to provide, in support of their arguments that the requirement of objective impartiality was not complied with during an administrative procedure, proof of specific indications of bias. Objective impartiality is to be assessed independently of the specific conduct of the person concerned (judgment of 14 March 2024, D & A Pharma v Commission and EMA, C‑291/22 P, EU:C:2024:228, paragraph 80).
33Having recalled that case-law, in essence, in paragraph 186 of the judgment under appeal, the General Court held, in paragraph 187 of that judgment, that the appellant had not established that the relationship between FRA and the investigator could give rise to a legitimate doubt as to the objective impartiality of the investigator. In that regard, the General Court noted, in paragraphs 188 to 191 of that judgment, that, first, it was apparent from the evidence provided by the appellant that the investigator had an employment relationship, not with FRA, but with the European Commission, secondly, the evidence adduced by the applicant concerning the investigator’s status as legal adviser to FRA was not sufficient to substantiate a legitimate doubt as to the existence of possible bias, in particular due to the fact that the investigator’s role had been limited to that of an external consultant, and, thirdly, as regards the financial interests between the investigator and FRA, the amount of the contracts concluded between them was reasonable and justified in the light of the amount of work required to carry out those tasks.
34It should be pointed out that, in accordance with the settled case-law of the Court of Justice, it follows from the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction, first, to establish the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, secondly, to assess those facts. It follows that the appraisal of the facts by the General Court does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (judgment of 25 April 2024, NS v Parliament, C‑218/23 P, EU:C:2024:358, paragraph 58 and the case-law cited).
35There is such distortion where, without recourse to new evidence, the assessment of the existing evidence is clearly incorrect or clearly contrary to its wording. However, such distortion must be clear from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence. Furthermore, where an appellant claims that the evidence has been distorted, he or she must indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in his or her view, led to that distortion (judgments of 27 April 2023, Fondazione Cassa di Risparmio di Pesaro and Others v Commission, C‑549/21 P, not published, EU:C:2023:340, paragraph 74 and the case-law cited, and of 11 January 2024, Foz v Council, C‑524/22 P, EU:C:2024:23, paragraph 38 and the case-law cited).
36It follows that the first plea in law must be rejected as inadmissible, in so far as, by his arguments, the appellant claims that the evidence adduced before the General Court was, to the extent that it discloses the role of legal adviser to FRA played by the investigator and the high amount of remuneration paid to him by FRA under the external consultancy contracts concluded between them, likely to give rise to a legitimate doubt as to the objective impartiality of that investigator. By such a line of argument, the appellant seeks to obtain a fresh assessment of that evidence. Although it is true that the appellant expressly claims that the General Court distorted some of that evidence, in particular the evidence relating to the investigator’s status as legal adviser to FRA, it must be stated that, under the guise of a claim of distortion, the appellant seeks, in reality, to obtain a re-examination of the arguments already put forward in that regard at first instance, without, however, explaining how the General Court made a manifestly incorrect assessment of the facts and evidence.
37Furthermore, in so far as, by the first ground of appeal, the appellant complains that the General Court erred in law in paragraph 191 of the judgment under appeal by not finding that the mere existence of a financial relationship between the investigator and FRA was sufficient, irrespective of the amount of remuneration paid, to give rise to a legitimate doubt as to the objective impartiality of that investigator, his argument must be rejected as unfounded. That fact alone is not sufficient to create a conflict of interest on the part of an investigator such as to vitiate the disciplinary proceedings, otherwise the EU institution, body, office or agency concerned would be deprived of the possibility of using the same investigator in different missions. Moreover, no conflict of interest can arise from the fact that an investigator has already carried out external consultancy activities for FRA where those other activities do not concern the subject matter of the investigation at issue. As it is, it is not apparent from paragraphs 189 and 190 of the judgment under appeal that that would be the case.
38Lastly, in so far as the appellant criticises the General Court for having held, in paragraph 192 of the judgment under appeal, that the present case is not similar to the one that gave rise to the judgment of 18 September 2012, Allgeier v FRA (F‑58/10, EU:F:2012:130), his argument must be rejected as ineffective, since, first, the mere fact that the General Court departed, if at all, in the judgment under appeal, from the solution adopted in a judgment delivered by the Civil Service Tribunal cannot constitute an error of law and, secondly, that ground is included purely for the sake of completeness.
39It follows that the first ground of appeal must be rejected.
The second ground of appeal
Arguments of the parties
40By his second ground of appeal, the appellant complains, in essence, that, in paragraphs 67 to 98 of the judgment under appeal, the General Court committed a number of errors of law, distorted the evidence and committed manifest errors of assessment in its examination of the conduct alleged against the appellant by FRA, that is to say, that he engaged in ‘plagiarism’ in order to draft the brief at issue and failed to provide an adequate statement of reasons in that regard.
41First, he criticises, in essence, the interpretation of the concept of ‘plagiarism’ adopted by the General Court in paragraphs 58 to 61, 70, 72, 79 and 81 of the judgment under appeal. On the one hand, the General Court proposed a definition devoid of legal relevance of a term which does not fall within the scope of EU law, but rather comes from everyday language, in order to use it for the purposes of assessing and condemning the appellant’s conduct, whereas the assessment of the appellant’s conduct should have been carried out solely in the light of the obligations arising from the Staff Regulations.
42On the other, the General Court wrongly referred, in paragraph 60 of the judgment under appeal, to the Opinion of Advocate General Szpunar in Pelham and Others (C‑476/17, EU:C:2018:1002), concerning the interpretation of the scope of the so-called quotation exception in Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10), which serves to distinguish between lawful quotations and copyright violations, which are not relevant in the present case. In that regard, the appellant submits that Directive 2001/29 concerns the harmonisation of certain aspects of copyright. In addition, the wording and the context of that Opinion indicates that the term ‘plagiarism’ contained therein refers to an infringement of copyright in the context of exceeding the limits of the quotation exception. FRA itself considers that the legislation on copyright is not of great importance in the present case. Furthermore, the appellant maintains that the view expounded in that Opinion is relevant only if the texts copied are protected by the copyright legislation in Austria. Accordingly, the judgment under appeal is vitiated by another error of law, in so far as the General Court wrongly held, in paragraph 81 of that judgment, that the applicable national copyright law was not relevant in the present case.
43Secondly, the appellant submits that the General Court appears, wrongly, to reject the applicability of Article 11 of the Charter. Referring to the case-law of the European Court of Human Rights, the applicant submits that freedom of expression applies to the reception and communication of all information and ideas, regardless of its content.
44The appellant claims, in that regard, that the General Court erred in law, in paragraph 57 of the judgment under appeal, by referring to the wording of the Disciplinary Board’s advisory opinion, whereas only that of the Appointing Authority’s decision is relevant for assessing the legality of that decision. Furthermore, the General Court’s findings in paragraphs 90, 91 and 97 of the judgment under appeal, according to which, in essence, the obligation to mention its sources cannot be regarded as constituting an excessive restriction on freedom of expression, are vitiated by an error of law, in so far as, according to the case-law of the European Court of Human Rights, a breach of freedom of expression could also arise from the fact that formalities, conditions, restrictions or penalties are imposed or inflicted on the person concerned. A requirement to disclose the sources is a formality or condition for the exercise of freedom of expression and information. Thus, the General Court failed to fulfil the obligation, under Article 52(3) of the Charter, for the Courts of the European Union to take into account the case-law of the European Court of Human Rights when interpreting the Charter.
45Nor did the General Court take into consideration the judgment of the European Court of Human Rights of 25 November 1999, Hashman and Harrup v. the United Kingdom (CE:ECHR:1999:1125JUD002559494), as regards the interpretation of the requirement, laid down in Article 52(1) of the Charter, that any limitation on the exercise of the rights and freedoms recognised by the Charter must be ‘provided for by law’. The General Court ignored that argument of the appellant and therefore failed to respond adequately to it, with the result that the judgment under appeal was not reasoned to the requisite legal standard.
46According to the applicant, when he drafted and shared the brief at issue, he was covered by freedom of expression and information guaranteed by Article 11 of the Charter. It follows from the case-law of the European Court of Human Rights that a dismissal on disciplinary grounds may breach such a freedom and, moreover, the conditions for a valid limitation of that freedom, in accordance with Article 52(1) of the Charter, are not satisfied in the present case. The General Court therefore failed to interpret Article 11 of the Charter in the light of the case-law of the European Court of Human Rights, in accordance with the obligation under Article 52(3) of the Charter, by failing to explain how the conduct of which the appellant is accused, which should be protected by Article 11 of the Charter and which is not subject to any valid legal limitation, should be regarded as inappropriate and punishable.
47Thirdly, as regards the absence of a valid legal limitation, throughout the judgment under appeal, and more specifically in paragraphs 67 to 69 and 95 to 98 thereof, the General Court misinterpreted Articles 11, 12 and 21 of the Staff Regulations. The appellant submits, in that regard, that the General Court ignored the context of the 2004 reform of the Staff Regulations, which took into account freedom of expression established in Article 11 of the Charter and the case-law of the European Court of Human Rights relating to Article 52 of the Charter. Article 11 of the Charter was the reason for the reform of Article 17 of the Staff Regulations and the insertion of Article 17a therein, in so far as the general provisions of Articles 11, 12 and 21 of the Staff Regulations were not sufficiently clear and precise as regards the limitations placed on the freedom of expression of an EU official or other servant.
48Fourthly, the General Court erred in law, distorted the evidence and provided insufficient reasoning in paragraphs 72 and 218 of the judgment under appeal. In that regard, the appellant submits that it is true that FRA has internal rules on publishing and producing research results. However, those rules ensure proper referencing at a stage subsequent to the first draft of research work, as was the case with the brief at issue. The appellant submits that, contrary to what is apparent, in essence, from paragraphs 73, 74 and 95 of the judgment under appeal, the failure to include references and footnotes in that ‘first tentative draft’ constituted by the brief at issue, provided as an outline-contents structure for the research work which he was asked to carry out, cannot be portrayed as being inappropriate behaviour or as an act of disloyalty on his part. The appellant complied with FRA’s internal rules and cannot, therefore, be penalised in that respect.
49FRA contends, in essence, that the arguments raised by the applicant in the context of the second plea are inadmissible and, in any event, it considers them to be manifestly unfounded.
Assessment of the Court
50In the first place, as regards the appellant’s arguments relating to the General Court’s interpretation of the concept of ‘plagiarism’, referring, in essence, to the considerations set out in paragraphs 58 to 61, 70, 72, 79 and 81 of the judgment under appeal, it should be noted that such an argument cannot succeed.
51It is true, as the applicant rightly submits, that the concept of ‘plagiarism’ is not a concept of EU law and questions relating to copyright, in principle, fall within the scope of the law of the Member States.
52However, in the present case, as is apparent in particular from paragraphs 55 and 56 of the judgment under appeal, which have not been challenged by the appellant in the present appeal, the General Court considered that, in order to respond to the first part of the first plea in the action at first instance, alleging that plagiarism did not constitute an infringement of the Staff Regulations, it was necessary to take account of the fact that the principle of legal certainty requires that rules of law be clear, precise and predictable in their effects, in particular where they may have unfavourable consequences for individuals. In those circumstances, the General Court rightly held that, in order to determine whether the conduct alleged against the appellant could be properly penalised as an infringement of Articles 11, 12 and 21 of the Staff Regulations, applicable to members of the temporary staff pursuant to the first paragraph of Article 11 of the CEOS, and whether the applicant had been in a position to know precisely the extent of the obligations imposed on him by the Staff Regulations with regard to the conduct complained of, it was necessary to define the nature of that conduct.
53The same is true of the appellant’s criticism of paragraph 57 of the judgment under appeal, since the General Court merely stated in that paragraph that there was a difference in the wording, on the one hand, of the decision to remove from post, in which FRA had found that the appellant had committed plagiarism, and, on the other hand, of the Disciplinary Board’s opinion, according to which the conduct alleged against the appellant, which was incompatible with Articles 11, 12 and 21 of the Staff Regulations, consisted, in essence, in a deliberate presentation of a document, which resulted from copying, as being the result of his own work. Having thus identified the objective of its examination, the General Court, in paragraphs 58 to 76 of the judgment under appeal, assessed whether the conduct alleged against the appellant, namely the deliberate presentation of a document resulting largely from copying as being the product of his own work, was covered by the concept of ‘plagiarism’ to which the decision to remove from post referred and, therefore, was capable of constituting an infringement of the obligations arising from Articles 11, 12 and 21 of the Staff Regulations.
54Furthermore, the General Court rightly held, in paragraph 80 of the judgment under appeal, that, where an official does not comply with the obligations arising from the Staff Regulations, the fact of acting in accordance with national law does not confer on the person concerned immunity from the application of the provisions of the Staff Regulations. The General Court was therefore fully entitled, without distorting the facts, to consider, in paragraph 81 of the judgment under appeal, that, from the point of view of the provisions of the Staff Regulations, the references to Austrian law were not relevant in the present case, with the result that there was no need to examine the scope of that law.
55In the second place, the complaint alleging that the General Court wrongly rejected, in paragraphs 90 and 91 of the judgment under appeal, the appellant’s argument that FRA prevented him from exercising, absolutely, his right to freedom of expression guaranteed by Article 11 of the Charter and failed to analyse, in paragraphs 86 to 98 of that judgment, the arguments alleging infringement of Article 52(1) and (3) of the Charter, is also based on a misreading of the judgment under appeal.
56Contrary to what the appellant claims, the General Court did not, in any paragraph of the judgment under appeal, find that the content of the brief at issue was not covered by freedom of expression, with the result that it would have been necessary to disapply Article 11 of the Charter, nor, a fortiori, did it hold that a disciplinary penalty for plagiarism could not be regarded, where appropriate, as a restriction of that freedom and, therefore, should not be provided for by law, in accordance with the condition laid down in Article 52(1) of the Charter.
57On the contrary, as is apparent, in particular, from paragraphs 86 to 94 of the judgment under appeal, the General Court held that, according to Article 11(1) of the Charter, the right to freedom of expression includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. It also held that, as follows from Article 52(1) of the Charter, in order to be regarded as complying with EU law, a limitation on that right must be ‘provided for by law’, must be aimed at an objective of general interest, recognised as such by the European Union, and must not be excessive. In that regard, the General Court rightly held that Articles 11, 12 and 21 of the Staff Regulations constitute legitimate restrictions on the exercise of that right, for the purposes of Article 52(1) of the Charter, and that that limitation cannot be regarded as excessive.
58Moreover, in so far as the appellant claims that the General Court failed to examine the consequences of the judgment of the European Court of Human Rights of 25 November 1999, Hashman and Harrup v. the United Kingdom (CE:ECHR:1999:1125JUD002559494), it must be recalled that a plea alleging that the General Court failed to respond to arguments relied on at first instance amounts essentially to pleading a breach of the obligation to state reasons which derives from Article 36 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that statute, and from Article 117 of the Rules of Procedure of the General Court (judgment of 9 November 2023, XC v Commission, C‑527/21 P, EU:C:2023:850, paragraph 98 and the case-law cited).
59The obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case, since the General Court’s reasoning may be implicit on condition that it enables the persons concerned to know why it has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (judgment of 9 November 2023, XC v Commission, C‑527/21 P, EU:C:2023:850, paragraph 99 and the case-law cited).
60In the present case, in his application at first instance, the appellant argued that a restriction of the fundamental right of freedom of expression ‘provided for by law’, within the meaning of Article 52(1) of the Charter, requires a certain degree of clarity and foreseeability of the law in question. He submitted, in that regard, that it followed from the judgment of the European Court of Human Rights of 25 November 1999, Hashman and Harrup v. the United Kingdom (CE:ECHR:1999:1125JUD002559494), that a particularly imprecise provision that does not give any indication to the person concerned as to the type of conduct which amounts to a breach cannot be regarded as a ‘law’ within the meaning of that provision of the Charter.
61After recalling the case-law of the European Court of Human Rights according to which a rule cannot validly impose restrictions on freedom of expression if it is not set out with sufficient precision to enable the citizen to regulate his or her conduct, which, moreover, is also required by the principle of legal certainty, the General Court held, in paragraphs 94 to 98 of the judgment under appeal, that Articles 11, 12 and 21 of the Staff Regulations constituted sufficiently precise legal limitations on the right to freedom of expression. Accordingly, it cannot be maintained that the General Court infringed the obligation to state reasons in that regard.
62Thus, in so far as the appellant complains that the General Court infringed its obligation to state reasons, the arguments which it puts forward in that respect must be held to be unfounded.
63In the third place, as regards the line of argument that the General Court misinterpreted, in paragraphs 67 to 69 and 95 to 98 of the judgment under appeal, Articles 11, 12 and 21 of the Staff Regulations as provisions imposing a limitation on the right to freedom of expression, it should be recalled that Article 17a(1) of the Staff Regulations expressly confers that right on officials or servants of the European Union, subject to strict observance of the principles of loyalty and impartiality.
64In that regard, it follows from the case-law of the Court of Justice that it must be borne in mind that, whenever officials’ right to freedom of expression is in issue, their duties and responsibilities assume a special significance which justifies leaving the EU institution or body concerned a certain margin of appreciation in determining whether the interference in the exercise of that freedom is proportionate (judgment of 6 March 2001, Connolly v Commission, C‑274/99 P, EU:C:2001:127, paragraph 49).
65More particularly, the duty of loyalty, laid down in Article 12 of the Staff Regulations, means not only that the officials concerned must refrain from conduct which might reflect adversely upon their position and is detrimental to the respect due to the institution and its authorities, but also that they must conduct themselves, particularly if they are of senior grade, in a manner that is beyond any suspicion in order that the relationship of trust between that institution and themselves may at all times be maintained (judgment of 12 November 2020, Fleig v EEAS, C‑446/19 P, EU:C:2020:918, paragraph 100).
66In the present case, the General Court found, in paragraphs 27, 33 and 60 to 62 of the judgment under appeal, relying on the grounds of the decision to remove from post and the Disciplinary Board’s opinion, that the conduct of which the appellant was accused consisted of a deliberate presentation of a document as being the result of his own work, when it was largely the result of copying, in so far as, unlike a quotation, first, there had been no interaction between the brief at issue and the documents copied and, secondly, the passages copied did not appear clearly in that brief as all being extraneous to it.
67Those findings of the General Court clearly show that the appellant was not penalised because he had expressed a personal or dissenting opinion in the brief at issue, but because he had presented the writings of others as being the result of his own work, without mentioning his sources. On the basis of such findings of fact, which the appellant does not dispute, the General Court was entitled to infer, in paragraphs 95 and 96 of the judgment under appeal, that that conduct on the part of the appellant was likely to breach the duty of loyalty, the legal basis of which is Articles 11, 12 and 21 of the Staff Regulations, which form part of the legitimate restrictions on the exercise of the right to freedom of expression by pursuing, in particular, the aim of maintaining the relationship of trust which must exist between an institution and its officials.
68Accordingly, the General Court was fully entitled to hold, in paragraph 96 of the judgment under appeal, that that limitation on the right to freedom of expression cannot be regarded as excessive in the present case, since the appellant remained in a position to express his views freely in the brief at issue, without, however, having the right to present the work of others as being the result of his own work by not mentioning his sources.
69In so ruling, contrary to what the appellant claims, the General Court did not err in law.
70In the light of the foregoing, the second ground of appeal must be rejected as unfounded.
Third ground of appeal
Arguments of the parties
71By his third ground of appeal, the appellant alleges, in essence, that, in its description of the dispute in paragraph 9 of the judgment under appeal, the General Court distorted the facts and evidence which he had submitted to it, in particular a message sent to the appellant by the head of the department in which the latter asked him to send to one of his colleagues the link giving access to the brief at issue stored in the DMS. The appellant submits that, contrary to what the General Court stated in that paragraph of the judgment under appeal, he was not merely ‘invited’ to send the link, but was thereby instructed to do so by the head of department. In so doing, the General Court wrongly classified an instruction from a line manager as a mere ‘invitation’, which the appellant was not in a position to ignore. According to Article 21a of the Staff Regulations, the appellant cannot be held legally responsible for the consequences of following the instruction in question, if that instruction was not manifestly illegal or constituted a breach of the relevant safety standards.
72FRA contends that the third ground of appeal is inadmissible, arguing that the appellant merely challenges the findings of fact made by the General Court.
Assessment of the Court
73It must be held that, by his third ground of appeal, the appellant merely challenges the description of the facts, as set out by the General Court in paragraph 9 of the judgment under appeal, in the part of that judgment which sets out the background to the dispute, without indicating how the alleged incorrect legal characterisation of the message sent to the appellant by the head of his department is such as to vitiate the findings of law made by the General Court in that judgment. It follows that, under the guise of such an incorrect legal characterisation of the facts, the appellant is in reality challenging factual assessments made by the General Court, without, moreover, explaining how those assessments are manifestly incorrect or contrary to their wording.
74Consequently, in accordance with the case-law referred to in paragraphs 31 and 32 above, the third ground of appeal is inadmissible.
Fourth ground of appeal
Arguments of the parties
75In his fourth ground of appeal, the appellant claims in essence that, in paragraphs 101, 106, 107, 111 to 113 and 122 of the judgment under appeal, the General Court committed a number of errors of law, distorted the evidence and committed manifest errors of assessment in its examination of the lawfulness of the initiation of the administrative investigation, and that it failed to provide sufficient reasoning in that connection.
76The appellant contends, first, that the General Court distorted the evidence and committed a manifest error of assessment in paragraph 107 of the judgment under appeal, in so far as the OLAF consultation was only attached to the report of the Director of FRA and that the appellant did not receive it until after 27 February 2019. Consequently, the appellant was not informed of the content of the OLAF consultation when the investigation was initiated on 23 March 2018 or, moreover, when the disciplinary proceedings were initiated on 23 October 2018. The General Court therefore erred in law in holding that the appellant had been sufficiently informed when the investigation was initiated and in applying by analogy the case-law established in the judgment of 5 October 2005, Rasmussen v Commission (T‑203/03, EU:T:2005:346).
77The appellant argues, secondly, that the General Court failed to assess the legal context in which the initiation of an administrative investigation takes place. In his view, in order to ensure that the ‘prima facie evidence’ criterion, referred to in Article 86(1) and (2) of the Staff Regulations, is verified when an administrative investigation is initiated, the wording of that provision must be taken into consideration. In that regard, the only legitimate aim of an administrative investigation is to establish, on the basis of prima facie evidence, that it may reasonably be suspected that an EU official or servant has failed to fulfil his or her obligations under the Staff Regulations.
78Moreover, the appellant considers that an administrative investigation is in itself, by definition, a data processing operation which, according to Article 4 of Regulation No 45/2001, requires a ‘specified, explicit and legitimate purpose’. The appellant adds that the General Court erred in law in stating that Articles 1 and 2 of Annex IX to the Staff Regulations do not require the Appointing Authority to indicate the specific provisions of the Staff Regulations which have been infringed, since that question falls within the scope of Article 86(2) of the Staff Regulations and Regulation No 45/2001 instead. Lastly, the appellant submits that Article 86(2) of the Staff Regulations provides that an administrative investigation may be initiated only in order to verify a breach, by the EU official or servant concerned, not of intellectual property law, but only of the Staff Regulations.
79The appellant contends, thirdly, that the General Court erred in law, in paragraph 111 of the judgment under appeal, by not applying the case-law established in the judgment of 8 July 2008, Franchet and Byk v Commission (T‑48/05, EU:T:2008:257), confirmed by the judgment of 12 July 2012, Commission v Nanopoulos (T‑308/10 P, EU:T:2012:370), which requires there to be sufficiently precise and relevant evidence available before disciplinary proceedings are initiated.
80FRA contends that the fourth ground of appeal is inadmissible and adds that it is, in any event, manifestly unfounded.
Assessment of the Court
81At the outset, it must be observed that, under Article 86(2) of the Staff Regulations, where the Appointing Authority becomes aware of evidence of failure within the meaning of paragraph 1 of that article, it may launch administrative investigations to verify whether such failure has occurred. It is apparent, moreover, from a combined reading of paragraphs 1 and 2 of Article 86 of the Staff Regulations that the Staff Regulations confer on the administration the power to initiate an investigation based on an alleged failure to fulfil obligations under the Staff Regulations.
82Although, as the General Court pointed out in paragraph 103 of the judgment under appeal, the administration has a wide discretion as regards the initiation of an administrative investigation, it must nevertheless be in a position, as the General Court held in essence in paragraph 104 of that judgment, to rely, for those purposes, on the existence of a reasonable suspicion that a disciplinary offence has been committed. It follows that, in order to protect the rights of the EU official or servant concerned, the administration must satisfy itself, before initiating an investigation, that it has evidence to suspect that that official or servant has breached his or her obligations under the Staff Regulations and, before initiating disciplinary proceedings against that person, that it has information and evidence which is sufficiently precise and relevant to support its suspicions.
83Having correctly set out those principles, the General Court rejected, in paragraph 106 of the judgment under appeal, the appellant’s argument that the decision to initiate the administrative investigation did not mention Article 21 of the Staff Regulations and the AECC had not known, at the time of initiating that investigation, exactly which provisions of the Staff Regulations the appellant might have infringed.
84In that regard, the General Court rightly held, also in paragraph 106, that Article 1 of Annex IX to the Staff Regulations, to which Article 2 refers as regards administrative investigations carried out by the Appointing Authority, does not require that authority, or where appropriate the AECC, to specify the specific provisions of the Staff Regulations alleged to have been infringed, to the extent that, as the General Court held in paragraph 107 of the judgment under appeal, in the context of its definitive assessment of the facts, the appellant had sufficient information to understand that he was accused of having infringed the provisions of the Staff Regulations requiring loyal conduct on the part of officials, particularly in the light of the content of the decision to initiate the investigation, which stated, in particular, that the conduct of which the applicant was accused had consisted of including in the brief at issue parts purely and simply copied from other sources, without mentioning references or informing his head of department, giving the impression that that brief was the result of his own work.
85In those circumstances, the General Court was entitled, without committing any error of law or distortion and on the basis of an adequate statement of reasons, to find, in paragraphs 108 and 111 of the judgment under appeal, that the procedure concerning the appellant had been properly initiated, given that, when the administrative investigation was initiated, the Appointing Authority had sufficient evidence to suspect the existence of a breach by the appellant of his obligations under the Staff Regulations and, at the time of the initiation of the disciplinary proceedings, sufficiently precise and consistent evidence confirming the suspicions which had justified the initiation of that investigation.
86It follows that the fourth ground of appeal must be rejected as, in part, inadmissible and, in part, unfounded.
The fifth ground of appeal
Arguments of the parties
87By his fifth ground of appeal, the appellant submits, in essence, that the General Court, in paragraphs 16, 114, 119 to 131, 135 and 136 of the judgment under appeal, made a number of errors of law, distorted the evidence, provided an inadequate statement of reasons and carried out an incomplete examination of his action at first instance, in the context of its assessment of the ‘legal significance’ of the decision to initiate the investigation.
88According to the appellant, FRA did not transfer its disciplinary powers to the investigator, contrary to the General Court’s assertions, but entrusted that investigator with a specific investigation with a specific purpose and scope. The General Court also failed to assess correctly the legal context of that decision. The appellant recalls in that regard that Regulation No 45/2001 provides that a data processing operation such as an administrative investigation needs to serve a ‘specified, explicit and legitimate purpose’ and that the data processed need to be ‘adequate, relevant and not excessive’ in relation to the purpose for which they are processed.
89FRA contends that the fifth ground of appeal is unfounded.
Assessment of the Court
90By his fifth ground of appeal, the appellant complains, in essence, that the General Court incorrectly classified the ‘legal significance’ of the decision to initiate the investigation. However, under the guise of a plea alleging errors of law, in particular an alleged infringement of the rules governing data processing during the administrative procedure, distortion of the evidence, an inadequate statement of reasons and an incomplete examination of his action, the appellant is in fact asking the Court of Justice to substitute its own assessment of the evidence for that carried out by the General Court in paragraphs 16, 114, 119 to 131, 135 and 136 of the judgment under appeal, which, as is apparent from the case-law referred to in paragraphs 31 and 32 above, falls outside its jurisdiction in an appeal.
91In addition, in so far as the appellant claims that the General Court distorted the wording of the decision to initiate the administrative investigation, he merely repeats the arguments already submitted to the General Court, as is apparent from paragraphs 122 to 135 of the judgment under appeal, without explaining how those arguments are vitiated by an error of law.
92It follows that the fifth ground of appeal must be rejected as inadmissible.
The sixth, seventh and eighth grounds of appeal
Arguments of the parties
93By his sixth ground of appeal, the appellant claims that the General Court carried out an incomplete examination of his action at first instance, in so far as it did not respond to the appellant’s argument that the Disciplinary Board had not confined itself to the facts mentioned in the report of the Director of FRA and that it had therefore infringed the Staff Regulations.
94By his seventh ground of appeal, the appellant submits that, in paragraphs 194 and 200 to 205 of the judgment under appeal, the General Court did not have regard to the fact that he had adduced evidence capable of establishing that the Appointing Authority had already decided to impose the sanction of removal from post before the hearing of 11 July 2019. Having failed to examine that evidence, the General Court distorted the evidence, committed a manifest error of assessment, carried out an incomplete examination of the plea relied on at first instance and infringed its obligation to state reasons.
95By his eighth ground of appeal, the appellant claims that it is apparent from the appeal as a whole that the General Court infringed Article 47 of the Charter by failing to grant him an effective judicial remedy.
96FRA contends that the appellant’s position on the sixth ground of appeal remains vague and does not identify the paragraphs of the judgment under appeal to which it relates.
97As regards the seventh ground of appeal, FRA maintains that, contrary to what the appellant claims, the General Court referred to his line of argument at the end of paragraph 202 of the judgment under appeal and responded to it in paragraphs 203 and 204 thereof.
98Lastly, according to FRA, the eighth ground of appeal is manifestly inadmissible.
Assessment of the Court
99It follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested paragraphs of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal concerned is to be inadmissible (judgment of 18 January 2024, Jenkinson v Council and Others, C‑46/22 P, EU:C:2024:50, paragraph 60 and the case-law cited).
100In particular, a ground of appeal supported by an argument that is not sufficiently clear and precise to enable the Court to exercise its powers of judicial review, in particular because essential elements on which the ground of appeal relies are not indicated sufficiently coherently and intelligibly in the text of the appeal, which is worded in a vague and ambiguous manner in that regard, does not satisfy those requirements and must be declared inadmissible (judgment of 18 January 2024, Jenkinson v Council and Others, C‑46/22 P, EU:C:2024:50, paragraph 61 and the case-law cited). The Court of Justice has also held that an appeal lacking any coherent structure which simply makes general statements and contains no specific indications as to the points of the decision under appeal which may be vitiated by an error of law must be dismissed as clearly inadmissible (judgment of 15 December 2022, Picard v Commission, C‑366/21 P, EU:C:2022:984, paragraph 53 and the case-law cited).
101In the present case, as regards the sixth and eighth grounds of appeal, it is sufficient to note that they do not identify precisely the paragraphs in the grounds of the judgment under appeal against which they are directed or the errors of law by which they are allegedly vitiated. Moreover, those grounds of appeal are formulated in very general terms, without providing sufficient arguments to enable the Court to assess their merits.
102Similarly, as regards the seventh ground of appeal, although the appellant states that that ground of appeal relates to paragraphs 194 and 200 to 205 of the judgment under appeal, alleging that the General Court failed to mention and examine the evidence that the Appointing Authority had already decided to impose the sanction of removal from post before the hearing of 11 July 2019, the fact remains that the appeal does not contain any legal arguments supporting an alleged failure to state reasons.
103Consequently, the sixth, seventh and eighth grounds of appeal must be rejected as manifestly inadmissible.
104Since none of the grounds of appeal has been upheld, the action must be dismissed in its entirety.
Costs
105Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs. Under Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
106Since the appellant has been unsuccessful, he must, in accordance with the form of order sought by FRA, be ordered to bear his own costs and to pay those incurred by FRA.
Operative part
On those grounds, the Court (Fifth Chamber) hereby:
1.Dismisses the appeal;
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 12 December 2024.
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