29 May 2024 (*1)

(Civil service – Officials – Disciplinary proceedings – Disciplinary penalty – Reprimand – Acts contrary to the dignity of the civil service – Articles 12 and 21 of the Staff Regulations – Competence of the author of the act – Obligation to state reasons – Principle of good administration – Impartiality – Article 41 of the Charter of Fundamental Rights)

In Case T‑766/22,

Maria Canel Ferreiro, residing in Overijse (Belgium), represented by N. Maes, lawyer,

applicant,

Council of the European Union, represented by M. Bauer and I. Demoulin, acting as Agents,

defendant,

THE GENERAL COURT (Tenth Chamber, Extended Composition),

composed of O. Porchia, President, M. Jaeger, L. Madise (Rapporteur), P. Nihoul and S. Verschuur, Judges,

Registrar: V. Di Bucci,

having regard to the written part of the procedure,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

By her action based on Article 270 TFEU, the applicant, Ms Maria Canel Ferreiro, seeks the annulment (i) of ‘administrative investigation EN-2101’ (‘the administrative investigation’) and the report of that administrative investigation of the Council of the European Union of 28 May 2021 (‘the investigation report’), (ii) of the Council’s Decision of 25 November 2021 imposing on her a disciplinary penalty in the form of a reprimand (‘the contested decision’) and (iii) of the decision of 1 September 2022 rejecting her complaint (‘the decision rejecting the complaint’).

Background to the dispute

The applicant was recruited as an official at the European Commission in 2006. On 1 September 2013, she was transferred to the Council, where she was assigned to the Registry of the Legal Service.

3.3

From 1 April 2019 until 15 June 2021, the applicant held an assistant post, namely that of verifying agent in the ‘Budget and Finance’ Unit of the Council’s Healthcare and Social Services.

On 19 February 2021, A, the applicant’s immediate superior, sent C, the Director-General for Organisational Development and Services at the General Secretariat of the Council, a draft management note highlighting, in particular, the applicant’s communication difficulties and the resulting tensions in her working relationships with her colleagues and superiors. On the same day, the draft note was sent to the applicant for comment.

5.5

On 23 February 2021, the applicant sent an email to A which called into question the accuracy of A’s comments in the draft management note, claiming that the draft note constituted evidence of A’s alleged harassment of the applicant. C and B, the Director of the ‘Human Resources’ Unit of DG ‘Organisational Development and Services’, were copied in on that email.

On 3 March 2021, the applicant sent her comments on the draft management note to A.

On 13 March 2021, after A had asked the applicant to withdraw the accusations of harassment contained in the email of 23 February 2021, the applicant sent A a further email, challenging the truth of the comments A had made in her management note and calling into question her managerial abilities.

8.8

On 23 March 2021, in his capacity as the appointing authority (‘the appointing authority’), C instructed the ‘Legal Advisers to the Administration’ Unit to conduct an administrative investigation concerning the applicant, with a view to establishing whether:

in organising her annual leave in 2020, she had failed to fulfil her obligations under the Staff Regulations, in particular those set out in Articles 12 and 60 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), and her obligations under Decision No 1/2014 of the Secretary-General of the Council of 1 January 2014 laying down rules for the application of the provisions of the Staff Regulations in relation to leave for officials in active employment at the General Secretariat of the Council;

in her conduct towards A, by way of email communications in 2021, she had failed to fulfil her obligations under the Staff Regulations, in particular those set out in Article 12 thereof.

On 24 March 2021, the applicant was informed of the initiation of the administrative investigation.

10.10

On 8 April 2021, the applicant was heard orally by the investigators.

11.11

On 26 April 2021, the investigators sent the applicant two written questions, asking her to comment on two sentences taken, respectively, from her email of 23 February 2021 and from her email of 13 March 2021, both addressed to A, which contained accusations of harassment. By email of the same day, the applicant stated that she had already presented her position in that connection and added nothing to her previous explanations.

Having received the comments of the witnesses, the investigators sent the applicant the ‘Facts and circumstances’ section of the draft investigation report on 5 May 2021. Having received no comments from the applicant within the prescribed period, the investigators informed her, by note of 25 May 2021, that the final report would be sent to the appointing authority for a decision.

13.13

By internal note of 28 May 2021, the investigators sent C the investigation report, in which they concluded, first, that the applicant had not infringed any provision of the Staff Regulations in organising her annual leave in 2020 and, secondly, that, ‘in the light of the acts in question, and in particular [the applicant’s] communications to [A] by email in 2021, [the applicant] ha[d] infringed – at the very least – Articles 12 and 21 of the Staff Regulations’.

14.14

On 10 June 2021, the applicant was informed of the possibility of viewing the findings of the administrative investigation set out in the investigation report and the annexes thereto at C’s secretariat. The applicant consulted those documents and acquainted herself with all the material in the file on 21 June 2021.

15.15

On 19 October 2021, the appointing authority initiated disciplinary proceedings against the applicant, without consulting the Disciplinary Board.

16.16

On 25 November 2021, the appointing authority adopted the contested decision, which was notified to the applicant on 8 February 2022.

17.17

On 2 May 2022, the applicant submitted a complaint under Article 90(2) of the Staff Regulations against the contested decision.

18.18

On 1 September 2022, the appointing authority adopted the decision rejecting the complaint.

Forms of order sought

19

The applicant claims that the Court should:

–annul the contested decision;

–annul the decision rejecting the complaint;

–‘annul the administrative investigation and the investigation report’;

–order the Council to pay the costs.

The Council contends that the Court should:

–dismiss the action as partly inadmissible and partly unfounded;

–order the applicant to pay the costs.

Law

Admissibility of the third head of claim, directed against the administrative investigation and the investigation report

The Council argues that the claims for annulment are inadmissible in so far as they are directed against the administrative investigation and the investigation report.

It should be recalled that only acts producing binding legal effects likely directly and immediately to affect the interests of an applicant by bringing about a distinct change in his or her legal position constitute acts adversely affecting him or her. In the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, an act is open to review only if it definitively lays down the position of the administration upon the conclusion of that procedure and not if it is an intermediate measure intended to pave the way for the final decision. Acts preparatory to a decision do not adversely affect a person and it is only when an action is brought against a decision adopted upon the conclusion of a procedure that an applicant may challenge the legality of earlier acts that are closely linked to that decision (see, to that effect, judgment of 2 February 2022, LU v EIB, T‑536/20, not published, EU:T:2022:40, paragraphs 37 to 39 and the case-law cited).

23

In the present case, the purpose of the administrative investigation was to verify whether there had been a failure to fulfil the obligations incumbent on officials under the Staff Regulations. In that regard, the report closing the investigation contains only a recommendation to the appointing authority concerning the conclusions to be drawn from the investigation. Accordingly, both the administrative investigation and the investigation report constitute interim measures which do not prejudge the final position adopted by the appointing authority, as is clear, moreover, from Article 6(1) of Decision No 73/2006 on the conduct of and procedure for administrative investigations and the Disciplinary Board within the General Secretariat of the Council, adopted in accordance with the disciplinary measures provided for in Article 86 of the Staff Regulations and the rules and procedures laid down in Annex IX to the Staff Regulations. Consequently, neither the administrative investigation nor the investigation report can be regarded as acts adversely affecting the applicant.

In the light of the foregoing, the third head of claim, directed against the administrative investigation and the investigation report, must be dismissed as inadmissible.

The first and second heads of claim, seeking annulment of the contested decision and of the decision rejecting the complaint

Preliminary considerations

25

In support of her claims for annulment, the applicant relies on four pleas in law.

26

In the first plea, which is in two parts, the applicant claims (i) that the investigators exceeded the powers conferred on them by the appointing authority and (ii) that they lacked objectivity and impartiality with regard to her.

27

The second plea alleges illegalities in the adoption of the decision rejecting the complaint.

28

By her third plea, the applicant claims infringement of her rights of defence.

The applicant also raises a fourth plea, alleging a lack of evidence of an infringement of Articles 12 and 21 of the Staff Regulations. The arguments raised by the applicant in the fourth plea can be grouped, in essence, into four parts. Accordingly, the applicant argues:

–first, that the contested decision contains no statement of reasons relating to the facts constituting an infringement of Article 21 of the Staff Regulations;

–secondly, in any event, that the infringement of Article 21 of the Staff Regulations has not been established;

–thirdly, that the contested decision contains no statement of reasons as to what constituted the ‘derogatory communication’ contrary to Article 12 of the Staff Regulations;

–fourthly, in any event, that the infringement of Article 12 of the Staff Regulations has not been established.

30

In the present case, it should be pointed out that the second plea raised by the applicant relates specifically to illegalities vitiating the complaint procedure, such as the lack of competence on the part of the author of the decision rejecting the complaint to adopt such a decision and infringement of the principle of impartiality in that the decision rejecting the complaint was adopted by the author of the contested decision.

It is clear from the case-law that an applicant must be able to seek a review by the EU Courts of the legality of the decision rejecting his or her complaint, where he or she raises a plea relating specifically to the complaint procedure. If the applicant were, in such a situation, entitled to challenge only the original decision, any possibility of a challenge concerning the pre-litigation procedure would be excluded, thus depriving him or her of the benefit of a procedure which seeks to permit and encourage an amicable settlement to the dispute which has arisen between the servant and the administration and to require the authority to which that servant reports to reconsider its decision, in compliance with the rules, in the light of any objections which that servant may make (see, to that effect, judgment of 19 June 2015, Z v Court of Justice, T‑88/13 P, EU:T:2015:393, paragraphs 143 to 146).

In those circumstances, the Court considers that it is appropriate to examine, first of all, the second plea, before ruling on the pleas directed against the contested decision. If that plea proves to be well founded and the Court annuls the decision rejecting the complaint, it will be for the administration to re-examine the complaint while ensuring the proper conduct of the pre-litigation procedure. In such circumstances, the claims directed against the contested decision should be dismissed as inadmissible, because they are premature, since that decision cannot be subject to review by the Court unless it has first been re-examined in the context of a properly conducted pre-litigation procedure (see, to that effect, judgment of 16 May 2017, CW v Parliament, T‑742/16 RENV, not published, EU:T:2017:338, paragraphs 59 to 61).

The first, third and fourth pleas are directed against both the contested decision and the decision rejecting the complaint. In examining the claims for annulment in so far as they are based on those pleas, it is appropriate to proceed on the basis of the principle that an action, even if formally directed against the rejection of the complaint, has the effect of bringing before the court the act adversely affecting the applicant against which the complaint was lodged, except where the rejection of the complaint has a different scope from that of the measure against which the complaint was lodged (see, to that effect, judgment of 8 July 2020, WH v EUIPO, T‑138/19, EU:T:2020:316, paragraph 33 and the case-law cited). Having regard to its content, the rejection of the complaint need not be purely confirmatory of the measure challenged by the applicant, in particular where the administration re-examines his or her situation in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such circumstances, the rejection of the complaint constitutes a measure subject to review by the judicature, which will take it into consideration when assessing the legality of the contested measure or will even regard it as an act adversely affecting the applicant replacing the contested measure (see judgments of 10 October 2019, Colombani v EEAS, T‑372/18, not published, EU:T:2019:734, paragraph 19 and the case-law cited, and of 8 July 2020, WH v EUIPO, T‑138/19, not published, EU:T:2020:316, paragraph 35 and the case-law cited).

In the present case, the decision rejecting the complaint confirms the substance of the contested decision, without altering its meaning or scope or re-examining the applicant’s situation in the light of new elements of law or of fact.

Accordingly, the legality of the contested decision must be examined, taking into account the reasons given for the decision rejecting the complaint (see, to that effect, judgment of 6 July 2022, MZ v Commission, T‑631/20, EU:T:2022:426, paragraph 21 and the case-law cited).

The second plea in law, alleging illegalities in the adoption of the decision rejecting the complaint

The second plea is divided into two parts. The first part alleges lack of competence on the part of the author of the decision rejecting the complaint and the second alleges infringement of Article 41(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

– The first part of the second plea in law, alleging lack of competence on the part of the author of the decision rejecting the complaint

The applicant argues that C, the Director-General for Organisational Development and Services of the General Secretariat of the Council, did not have the competence to adopt the decision rejecting her complaint. In that regard, she submits, first, that it is apparent from Article 1(f) of Decision No 16/2017 of the Secretary-General of the Council delegating decision-making and signatory powers concerning the application of the Staff Regulations of Officials and the Conditions of Employment of Other Servants that decisions taken pursuant to Article 90(2) of the Staff Regulations were excluded from the delegation of decision-making powers granted to the Director-General for Administration, now known as the Director-General for Organisational Development and Services of the Council, by the Secretary-General.

Secondly, the applicant submits that it has not been established that, on the date on which her complaint was made, namely 2 May 2022, Decision No 23/22 of the Secretary-General of the Council amending Decision No 16/2017, so as to ensure continuity in the event that the post of Secretary-General is vacant, delegating to the Director-General for Organisational Development and Services of the Council the competence to adopt, inter alia, decisions pursuant to Article 90(2) of the Staff Regulations, was in force.

The Council disputes the applicant’s arguments.

It should be recalled that, under Article 2(1) of the Staff Regulations, each institution is to determine who within it is to exercise the powers conferred by the Staff Regulations on the appointing authority.

Pursuant to that provision, the Council adopted Decision (EU) 2017/262 of 6 February 2017 determining, for the General Secretariat of the Council, the appointing authority and the authority empowered to conclude contracts of employment, and repealing Decision 2013/811/EU (OJ 2017 L 39, p. 4). According to Article 1(c) of Decision 2017/262, the powers conferred by the Staff Regulations on the appointing authority are to be exercised by the Secretary-General, who, in accordance with Article 1(2) of that decision, is authorised to delegate them, in whole or in part, to the Director for Organisational Development and Services.

42

Accordingly, by Decision No 16/2017, the Secretary-General delegated the decision-making powers which had been conferred on him by Decision No 2017/262 to the Director for Organisational Development and Services, save, inter alia, so far as concerned the application of Article 90(2) of the Staff Regulations (Article 1(f) of Decision No 16/2017).

43

However, with a view to leaving the service, the Secretary-General of the Council, D, adopted Decision No 23/22, which amended Decision No 16/2017 by inserting into it Article 1a, which provides as follows: ‘in the event that the post of Secretary-General is vacant, until such time as the Secretary-General appointed in accordance with Article 240(2) [TFEU] takes up his or her duties following a vacancy, all the powers conferred on the Secretary-General by Decision [No] 2017/262 … shall be delegated to the Director-General for Organisational Development and Services, with the exception of the powers provided for in Article 1(1)(g) …’. It should be stated that the powers provided for in Article 1(1)(g) of Decision No 16/2017, which are excluded from the scope of the powers delegated to the Director-General for Organisational Development and Services, concerned the taking of decisions relating to the ‘reassignments and transfers in the interests of the service referred to in Article 2, within Directorates-General other than the Directorate-General of Administration’.

44

Decision No 23/22 thus modified the scope of the decision-making powers delegated by the Secretary-General to the Director for Organisational Development and Services, by delegating to the latter, in the exceptional situation that the post of Secretary-General is vacant, almost all the Secretary-General’s powers, including the adoption of decisions under Article 90(2) of the Staff Regulations.

45

In accordance with Article 2 thereof, Decision No 23/22 was to enter into force on the date of its signature.

46

The applicant submits that the date of signature of Decision No 23/22, on which its entry into force in accordance with Article 2 thereof depends, has not been established. Nor, in her view, has it been established that the condition for its application, that is to say the post of Secretary-General being vacant, was fulfilled.

47

With regard to the date on which Decision No 23/22 was signed, it should be noted that, in the rejoinder, the Council submitted a signed version of Decision No 23/22, together with the roadmap demonstrating that the decision had indeed been signed by the Secretary-General of the Council on 29 April 2022.

48

With regard to the post of Secretary-General of the Council being vacant, it is clear from the second paragraph of the note to the Committee of Permanent Representatives (Coreper) of 5 April 2022 that the resignation of the Secretary-General of the Council, D, took effect on 30 April 2022. Moreover, the new Secretary-General of the Council did not take up her duties until 1 November 2022.

49

It should be recalled that the applicant lodged her complaint on 2 May 2022 and that the appointing authority rejected it on 1 September 2022.

50

It follows that, when the decision rejecting the complaint was adopted, Decision No 23/22 was in force and, therefore, the decision rejecting the complaint fell within C’s competence in his capacity as Director-General for Organisational Development and Services.

51

The first part of the second plea must therefore be rejected as unfounded.

– The second part of the second plea in law, alleging infringement of Article 41(1) of the Charter

52

The applicant argues that, even if C was competent to adopt the decision rejecting the complaint in accordance with the formal sub-delegation, he should have taken the steps necessary to fulfil the requirements of good administration and impartiality arising from Article 41(1) of the Charter, in particular by subdelegating the examination of her complaint to another Director-General. The fact that C did not refrain from deciding on the complaint against his own disciplinary decision deprived the applicant of her right to an impartial reconsideration of the decision taken against her, guaranteed by Article 90(2) of the Staff Regulations.

53

The Council disputes the applicant’s arguments.

54

It should be borne in mind that the right to have one’s affairs handled impartially by the institutions of the European Union, guaranteed by Article 41(1) of the Charter, is a general principle of EU law, and that, according to the case-law, the principle of good administration entails inter alia the obligation on the competent institution to examine all the relevant particulars of the case concerned with care and impartiality (see judgment of 19 October 2022, JS v SRB, T‑270/20, not published, EU:T:2022:651, paragraph 145 and the case-law cited).

55

Article 90(2) of the Staff Regulations provides that any person to whom those Staff Regulations apply may submit to the appointing authority a complaint against an act affecting him or her adversely, either where that authority has taken a decision or where it has failed to adopt a measure prescribed by the Staff Regulations.

56

First, it should be observed, as does the Council, that Article 90(2) of the Staff Regulations in no way requires that an authority other than the appointing authority which adopted the act adversely affecting an official should hear and determine the complaint lodged against that act. On the contrary, it is clear that the EU legislature envisaged a situation in which that authority takes a decision adversely affecting the official and then decides on the complaint lodged against it.

57

Secondly, as regards the actual nature of the complaint procedure, the Court of Justice has held, inter alia, that it does not constitute an appeal procedure, but rather is intended to compel the authority having control over the official to reconsider its decision in the light of any objections which that official may make (see, to that effect, judgment of 21 October 1980, Vecchioli v Commission, 101/79, EU:C:1980:243, paragraph 31). The Court of Justice thus considered that the author of the decision adversely affecting the applicant could take part in the deliberations of the collegiate body deciding on the complaint against that decision. Moreover, in his Opinion in the case which gave rise to the judgment of 21 October 1980, Vecchioli v Commission, Advocate General Warner emphasised that the complaint was not in the nature of an appeal to an authority higher than that which issued the contested act. According to the Advocate General, Article 90(2) of the Staff Regulations is intended to allow an official an opportunity to require that a decision affecting him or her should be reconsidered in the light of his or her representations. The Advocate General also stated that it is neither here nor there whether, as a result of what the competent authority has determined under Article 2 of the Staff Regulations, the authority that is to reconsider the decision is or is not the same as the authority that took it (see, to that effect, Opinion of Advocate General Warner in Vecchioli v Commission, 101/79, EU:C:1980:212).

58

Moreover, in the judgment of 8 July 2020, WH v EUIPO (T‑138/19, not published, EU:T:2020:316, paragraph 63), the Court held that the person who, as appointing authority, adopted a decision adversely affecting an official was not required to refrain from participating in the decision-making process relating to the complaint lodged by that official against the decision in question.

59

It follows from the foregoing that, even though the examination of the complaint was not, in the present case, submitted to a collegiate body, in the light of the nature of the complaint procedure, it cannot be concluded that there has been an infringement of Article 41(1) of the Charter by reason only of the fact that the decision rejecting the complaint was taken, in accordance with the Council’s internal organisational rules, by the same person who had adopted the decision which was the subject of that complaint. Moreover, the applicant did not allege the existence of any other circumstances capable of calling into question the impartiality of the person who had decided on her complaint.

60

It follows that it is necessary to reject the second part of the second plea and, consequently, the second plea as a whole, as well as the claims for annulment which, on the basis of that plea, are directed against the decision rejecting the complaint.

The fourth plea in law, in its first and third parts, alleging an infringement of the obligation to state reasons

61

In the fourth plea, in its first and third parts, the applicant argues, in the first place, that, apart from a reference to the conclusions set out in the investigation report, the contested decision contains no statement of reasons relating to the infringement of Article 21 of the Staff Regulations and, in the second place, that that decision also fails to identify the derogatory communication capable of constituting an infringement of Article 12 of the Staff Regulations.

62

Without responding directly to the applicant’s arguments alleging infringement of the obligation to state reasons, the Council contends that it is apparent from paragraphs 36 to 38 of the investigation report that, in the emails of 23 February and 13 March 2021, the applicant used abusive and aggressive language against A. That conduct constituted, first, an infringement of Article 21 of the Staff Regulations and, secondly, an infringement of Article 12 of the Staff Regulations, since the applicant’s accusations of harassment against her immediate superior, which were unsupported by prima facie evidence, expressed a high level of aggressiveness such as to damage A’s honour and professional reputation.

63

It should be noted that the obligation to state reasons is intended, first, to provide the persons concerned with sufficient information to enable them to assess whether the decision was well founded and whether it would be expedient to bring legal proceedings before the EU Courts and, secondly, to enable the EU Courts to review the legality of the decision (see judgment of 10 September 2019, DK v EEAS, T‑217/18, not published, EU:T:2019:571, paragraph 146 and the case-law cited). The sufficiency of the statement of reasons must be assessed in the light not just of its wording, but also of the factual and legal context in which the contested act was adopted (see judgment of 10 September 2019, DK v EEAS, T‑217/18, not published, EU:T:2019:571, paragraph 147 and the case-law cited).

64

In the present case, the appointing authority found, in the first recital of the contested decision, that, ‘according to [the] conclusions [of the administrative investigation], [the applicant], by her actions, and in particular by her communications to [A] by email in 2021, infringed, at the very least, Articles 12 and 21 of the Staff Regulations’.

65

In that regard, it must be noted that the account of the facts alleged by the appointing authority against the applicant merely reproduces, in part, paragraph 105 of the investigation report, contained in the ‘Final conclusions’ part of that report. However, that paragraph is merely a brief summary of the investigators’ reasoning in the earlier parts of the investigation report. Cited out of context, the abovementioned passage is not capable of precisely identifying the allegations made against the applicant.

First, a general reference to ‘communications … by email in 2021’, which is not accompanied by any explanation as to the content of those communications, does not make it possible to understand which remarks made by the applicant concerning A were considered by the appointing authority to constitute an infringement of Article 12 or Article 21 of the Staff Regulations. Moreover, the use of the words ‘in particular’ suggests that the contested decision penalises the applicant for conduct other than solely the electronic communications to A in 2021, without providing any further information in that regard.

67

Nor did the appointing authority provide the applicant with any explanations concerning the allegations against her in the decision rejecting the complaint, even though, in her complaint, the applicant maintained that she was unaware of what specific conduct might constitute an infringement of Article 21 of the Staff Regulations, in so far as the quality of her work had never been called into question by A, and, furthermore, that her queries regarding the emails allegedly sent in breach of Article 12 of the Staff Regulations had remained unanswered. Apart from the fact that the decision rejecting the complaint does not address the applicant’s arguments in the complaint relating to the infringement of the obligation to state reasons concerning the failure to comply with Articles 12 and 21 of the Staff Regulations, as regards acts attributable to the applicant, that decision, in paragraph 7 thereof, also merely reproduces, in part, the wording of paragraph 105 of the investigation report.

68

As is clear from paragraph 23 above, the investigation report sets out a recommendation to the appointing authority on the conclusions to be drawn from the administrative investigation and does not prejudge the final position adopted by the appointing authority. The appointing authority is required to examine the investigation report and to take the measures it considers appropriate, giving reasons for its decision. However, since the contested decision refers to that investigation report, to which the applicant had access, it is necessary to ascertain whether the contested decision, read in conjunction with that investigation report, contains a statement of reasons which fulfils the requirements of the case-law referred to in paragraph 63 above.

69

In that regard, it should be noted that, as regards the email communications in 2021, the Council submits in its defence that it is apparent from paragraphs 36 to 38 of the investigation report that the acts attributed to the applicant consisted in the sending of the emails of 23 February and 13 March 2021, in which she used abusive and aggressive language against A, accusing the latter of harassment.

70

It should be noted that, in paragraph 36 of the investigation report, the investigators explain that ‘the tone, content, form and nature of [the applicant’s] communication with [A] were often inappropriate’ and cite a passage from the email of 23 February 2021 (sent at 2.31 p.m.) and a passage from the email of 13 March 2021 (sent at 11.49 a.m.).

71

Moreover, in paragraphs 37 and 38 of the investigation report, the investigators explain that they consider that the applicant made serious accusations of harassment against A and that such accusations, if improper, would be likely to lead to disciplinary penalties, in accordance with Article 3(4) of Decision 15/2015 of the Secretary-General concerning psychological and sexual harassment at work within the General Secretariat of the Council.

72

As regards the infringement of Article 12 of the Staff Regulations, it is apparent from paragraph 91 of the investigation report that the manner in which the applicant communicated with her immediate superior in 2021 was considered to be ‘impolite, vexatious and humiliating’ and to have ‘bordered on insubordination’ and, therefore, to constitute an infringement of Article 12 of the Staff Regulations.

73

As regards the infringement of Article 21 of the Staff Regulations, it is apparent from a combined reading of paragraphs 59 and 97 of the investigation report that, in so far as that provision imposes on officials an obligation to assist and tender advice to their superiors, it was considered ‘unacceptable for [the applicant] to accuse [A], lightly, of harassment – without providing real prima facie evidence having the slightest support; and [that] it [was] also unacceptable for [the applicant] to make such accusations a bargaining chip, by offering to withdraw them if [A] withdrew her management note’.

However, notwithstanding those various comments concerning the applicant’s inappropriate communication throughout her collaboration with A, it is not apparent from the investigation report which elements, specifically contained in the emails of 23 February and 13 March 2021, formed the basis of the investigators’ conclusions concerning the infringement of Articles 12 and 21 of the Staff Regulations. Consequently, even though the applicant was not entirely unaware of the context in which the contested decision was adopted, she rightly submits that the contested decision, read in conjunction with that investigation report, does not contain an adequate statement of reasons, within the meaning of the case-law cited in paragraph 63 above, concerning her electronic communications to A in 2021.

Moreover, as is apparent from paragraph 66 above, the use in the contested decision of the words ‘in particular’ suggests that that decision also penalises the applicant for conduct other than solely the electronic communications to A in 2021, without providing any further information in that regard.

It should be noted that it is apparent from paragraph 105 of the investigation report, contained in the section entitled ‘Final conclusions’, that, ‘in the light of the acts in question, and in particular [the applicant’s] communications to [A] by email in 2021, the investigators conclude that [the applicant] has infringed – at the very least – Articles 12 and 21 of the Staff Regulations’. Accordingly, like the contested decision, the final conclusions of the investigation report suggest that the applicant’s conduct alleged to infringe those provisions of the Staff Regulations comprises far more acts than solely the applicant’s email communications to A in 2021. At the same time, a reading of the investigation report as a whole does not make it possible to understand what comprised the ‘acts in question’, other than the email communications referred to in paragraph 105 of that report, which, according to the final conclusions of the investigation report, are alleged to constitute a failure by the applicant to fulfil her obligations under the Staff Regulations.

It should be noted that, according to the actual wording of the investigation report, the investigators were instructed by their terms of reference to conduct an administrative investigation with the intention of establishing ‘whether, in her conduct towards [A], by means of email communications in 2021, [the applicant] had failed to fulfil her obligations under the Staff Regulations’ (paragraphs 1, 8 and 75 of the investigation report). In that regard, paragraph 36 of the investigation report emphasises that ‘the terms of reference concern [A] alone and only: [i] in 2021 (not in 2020); and [ii] through email communications’. At the same time, the report refers on several occasions to the applicant’s aggressive attitudes and actions towards other colleagues and to the applicant’s conduct towards A other than the emails in 2021.

For example, in paragraphs 40 and 57 of the investigation report, the investigators refer to the applicant’s criticisms concerning A’s management of her unit and the way in which the applicant communicated with her in person. They argue, first, that the applicant’s attitude ‘very quickly turned to aggressive criticism of [A]’s management of her unit and to scorn for her decisions, instructions, requests and advice’ and, secondly, that ‘[the applicant] raised her voice very loudly against [A] and, on numerous occasions, did not give her the opportunity to express her points of view in a calm and composed manner’, but, ‘on the contrary, she prejudged her as being a manager who fails to get to the heart of a problem and tends to disregard the real reason for the dysfunction which characterises her unit’.

Moreover, in paragraph 59 thereof, the investigation report refers to the appraisals for 2019 and 2020 and concludes that it is ‘intolerable that [the applicant] should react to the appraisals for 2019 and 2020 with contempt and give herself licence to stop working on certain files (because they w[ould] be more suited to other colleagues) or to refuse to collaborate (because the instructions are not clear)’.

Finally, in paragraph 62 of the investigation report, the investigators find that the applicant ‘makes the work of her colleagues extremely difficult’ and that the file ‘contains abundant documentation showing that, from 2020 onwards, [the applicant] flooded the email inboxes of her superiors with (sometimes long) messages which unnecessarily complicate[d] file management; or messages in which she quarrelled with contacts in various departments’.

It is clear from paragraphs 59 and 60 of the investigation report that the investigators considered that, ‘on the strength of their terms of reference’, they were able to assess the conduct referred to, in particular, in paragraph 79 above. It is true that the findings made in various paragraphs of the investigation report as to the scope of the terms of reference may, as such, in the light of paragraphs 39 and 88 of that report, be explained as expressing the view that the fact that the terms of reference were limited to the applicant’s email communications with A in 2021 did not prevent the investigators from addressing other actions and communications by the applicant in order properly to assess the content of the emails in question. However, the contradiction between, on the one hand, the limits of the terms of reference thus defined and, on the other hand, the final conclusions of the report, as set out in paragraph 76 above, leaves room for uncertainty as to the determination of the acts covered in the final conclusions of that report and subsequently penalised by the contested decision. Accordingly, the contested decision does not allow a clear distinction to be drawn between the conduct penalised and the facts taken into account as contextual elements.

As regards the infringement of Article 21 of the Staff Regulations, it is true that paragraph 97 of the investigation report, read in conjunction with paragraphs 59 and 64 of that report, refers to the applicant’s conduct towards ‘others in the chain of command’ or to the fact that she ‘allow[ed] herself to disrupt normal working conditions’ by refusing, inter alia, ‘to carry out certain tasks’, that she took on the role of ‘sheriff’ and even that she reacted with ‘scorn’ to the appraisals for 2019 and 2020. However, those brief and general comments do not make it possible to identify with precision which conduct was capable of constituting an infringement of Article 21 of the Staff Regulations and for what reasons.

In the light of all the foregoing considerations, it must be held that, since the Court’s review of the merits of the contested decision can be carried out only if the facts alleged against an official to constitute a failure to fulfil his or her obligations under the Staff Regulations are identified, the absence of information concerning the facts alleged against the applicant prevents the Court from reviewing the merits of the contested decision.

The first and third parts of the fourth plea must therefore be upheld and the contested decision annulled, without there being any need to examine other pleas relied on by the applicant against that decision.

Costs

Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has been largely unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

On those grounds,

hereby:

Annuls the Decision of the Council of the European Union of 25 November 2021 imposing a reprimand on Ms Maria Canel Ferreiro;

Dismisses the action as to the remainder;

Orders the Council to pay the costs.

Porchia

Jaeger

Madise

Nihoul

Verschuur

Delivered in open court in Luxembourg on 29 May 2024.

[Signatures]

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*1 Language of the case: French.