JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

4 April 2019 (*)

(Civil service — Officials — ‘Eurostat’ case — National criminal proceedings — No need to adjudicate — Request for assistance — Whistle-blower — Presumption of innocence — Action for damages and annulment)

In Case T‑61/18,

Amador Rodriguez Prieto, former official of the European Commission, residing in Steinsel (Luxembourg), represented by S. Orlandi, T. Martin and R. García-Valdecasas y Fernández, lawyers,

applicant,

v

European Commission, represented by B. Mongin and R. Striani, acting as Agents,

defendant,

APPLICATION based on Article 270 TFEU seeking, primarily, compensation for the material and non-material damage which the applicant alleges to have suffered and, in the alternative, annulment of the decision of the Commission of 28 March 2017 rejecting the applicant’s request for assistance,

THE GENERAL COURT (Eighth Chamber),

composed of A.M. Collins, President, R. Barents and J. Passer (Rapporteur), Judges,

Registrar: R. Ramette, Administrator,

having regard to the written procedure and further to the hearing on 17 January 2019,

gives the following

Judgment

 Background to the dispute

1        The applicant, Mr Amador Rodriguez Prieto, was an official of the European Commission between 1987 and 2003.

2        On 1 March 1998, the applicant was appointed Head of Unit C1 in Directorate C ‘Information and dissemination; transport; technical cooperation with non-member countries; external and intra-Community trade statistics’ of Eurostat (the European Union’s statistical office).

3        Since 1996, Eurostat had disseminated statistics to the public through the Office for Official Publications of the European Communities (OPOCE), which had set up a network of sales outlets (‘datashops’). Tripartite contracts concluded by Eurostat, the OPOCE and the datashops in 1996 involved a complex invoicing mechanism that allowed Eurostat to receive up to 55% of the price invoiced for data placed on the market.

4        The applicant was tasked by his Director, Mr B., with approving expenditure under tripartite contracts concluded with, in particular, Planistat.

5        By note of 27 October 1998, the applicant requested that an internal audit be conducted within Eurostat on the management of such contracts. He also asked that his authority to approve expenditure be withdrawn, which was done by letter dated 27 November 1998.

6        In September 1999, the internal audit found irregularities in the financial management of tripartite contracts with Eurocost, Eurogramme, Datashop, Planistat and CESD Communautaire, which allowed money to be diverted into a budget that was not subject to the Commission’s budgetary rules.

7        On 3 January 2000, the internal audit report was submitted to the Commission’s Directorate-General for Financial Control.

8        The Commission’s Directorate-General for Financial Control referred the matter to the European Anti-Fraud Office (OLAF) on 17 March 2000. OLAF initiated several investigations concerning, in particular, the contracts concluded by Eurostat with Eurocost, Eurogramme, Datashop, Planistat and CESD Communautaire, grants awarded to those companies and the invoicing system.

9        On 19 March 2003, OLAF forwarded the file on the contract with Planistat to the public prosecutor in Paris (France), who initiated a judicial investigation on 4 April 2003 for receipt of misappropriated funds and complicity in misappropriation.

10      On 11 June 2003, the Commission also referred the matter to its Internal Audit Service, which drew up three reports, namely two reports dated 7 July and 24 September 2003 and a final report dated 22 October 2003.

11      On the basis of an OLAF report dated 22 April 2003, the Commission authorised its Legal Service to file a criminal complaint with the Paris public prosecutor against X for receipt of misappropriated funds and complicity in misappropriation, which it did on 10 July 2003. The complaint concerned the possible misappropriation of funds by EU officials or agents that was detrimental to the EU’s financial interests. Following the discovery of new facts, on 4 August 2003 the judicial investigation opened by the Paris public prosecutor was extended by the latter to include the charge of misappropriation.

12      On 11 June 2008, the applicant informed the Commission that he had been summoned by the French police as a witness in those criminal proceedings. He therefore requested that the appointing authority waive his duty of confidentiality under Article 19 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and that his travel expenses from Luxembourg (Luxembourg) to Paris be reimbursed.

13      On 30 June 2008, the appointing authority waived the applicant’s duty of confidentiality but dismissed his claim for his travel expenses to be reimbursed. The internal complaint lodged on 21 July 2008 against that decision was dismissed on 20 November 2008.

14      On 7 October 2008, the applicant was interviewed by the French police.

15      On 22 October 2008, the applicant submitted a first request for assistance (registered under reference D/505/08) pursuant to Article 24 of the Staff Regulations. He stated inter alia that, in requesting an internal audit in October 1998, he had acted as a whistle-blower and the institution concerned was bound to assist him in their common interest. The Commission should therefore bear the legal costs which he had incurred when he was summoned as a witness by the French police.

16      That first request for assistance was dismissed on 17 December 2008. The Commission stated that it had learned that the applicant had been charged at the hearing on 7 October 2008. It considered that the two conditions for the application of Article 24 of the Staff Regulations, namely the existence of threats, insults, etc., against the official’s person or property and the existence of a causal link between those acts and the official or his duties, were not met. The Commission’s decision was not contested.

17      On 9 September 2013, the investigating judge at the Tribunal de grande instance de Paris (Regional Court, Paris, France) issued an order in respect of all the defendants, including the applicant, stating there was no need to adjudicate in the criminal proceedings (‘the order of no need to adjudicate’).

18      On 17 September 2013, the Commission brought an appeal against the order of no need to adjudicate.

19      By judgment of 23 June 2014, the cour d’appel de Paris (Court of Appeal, Paris, France) upheld the order of no need to adjudicate.

20      On 27 June 2014, the Commission brought an application for review of the judgment of the cour d’appel de Paris (Court of Appeal, Paris) of 23 June 2014 upholding the order of no need to adjudicate.

21      By judgment of 15 June 2016, the Cour de cassation (Court of Cassation, France) dismissed the Commission’s application for review of the judgment of the cour d’appel de Paris (Court of Appeal, Paris) of 23 June 2014 upholding the order of no need to adjudicate, thereby ending the criminal proceedings.

22      On 28 November 2016, the applicant, referring in particular to the judgment of 9 September 2016, De Esteban Alonso v Commission (T‑557/15 P, not published, EU:T:2016:456, paragraph 59) and the judgment of the Cour de cassation (Court of Cassation) of 15 June 2016, lodged a second request for assistance pursuant to Article 24 of the Staff Regulations, requesting that the Commission reimburse the costs and legal fees which he had incurred for the purposes of his defence before the French courts. He further requested that a note be placed on his personal file recognising him as a whistle-blower with a view to restoring his professional reputation. In the alternative, he sought compensation for the damage resulting from the breach of administrative duty by the institution, which had disregarded his status as a whistle-blower and refused to protect him.

23      By decision of 28 March 2017 (‘the contested decision’), the appointing authority found the second request for assistance inadmissible mainly on the ground that the applicant had not established any new facts since the decision rejecting his first request for assistance of 17 December 2008. Moreover, it considered both the second request for assistance and the claim for damages unfounded.

24      By letter of the Commission of 10 April 2017 with the reference CMS 16/056, the applicant was informed of the existence and closure of a disciplinary ‘file’ which, according to the Commission, had been opened in his respect in the context of the Eurostat case.

25      On 28 June 2017, the applicant filed a prior administrative complaint against the contested decision.

26      That complaint was dismissed on 30 October 2017.

 Procedure and forms of order sought

27      The applicant brought the present action by document lodged at the Court Registry on 5 February 2018.

28      The applicant stated that he waived his right to lodge a reply by letter lodged at the Court Registry on 4 June 2018.

29      The applicant requests, in essence, that the Court should:

–        principally, order the Commission to pay him EUR 68 831 in respect of material damage and EUR 100 000 in respect of non-material damage;

–        in the alternative, annul the contested decision;

–        order the Commission to pay the costs.

30      The Commission contends that the Court should:

–        dismiss the action as inadmissible and, in any event, unfounded;

–        order the applicant to pay the costs.

 Law

31      In support of the action, the applicant submits, firstly, that his request for assistance under Article 24 of the Staff Regulations was admissible and that his action seeking the annulment of the rejection of that request is therefore likewise admissible. Secondly, and as his principal claim, he seeks to establish the EU’s non-contractual liability for the Commission’s alleged disregard of his status as a whistle-blower and, in the alternative, he requests that the contested decision be annulled.

 Admissibility of the request for assistance and of the action for annulment of the contested decision

32      In the application, the applicant challenges the view taken by the Commission in the contested decision that the second request for assistance was inadmissible.

33      According to the applicant, although it is correct that the appointing authority is not required to assist an official who is suspected of having breached his professional obligations, the fact that the Commission joined the criminal proceedings as a civil party did not irrevocably prevent it from subsequently assisting him. In this case, the appointing authority had evidence establishing that he had acted as a whistle-blower.

34      The applicant maintains that the fact that the damage caused to him resulted from the acts of the French authorities does not preclude the application of Article 24 of the Staff Regulations. He states that he referred to his status as a whistle-blower to establish that the bringing of charges and the continuation of legal proceedings against him were unlawful.

35      Finally, the applicant submits that he always denied having participated knowingly in a management system that breached budgetary rules, as demonstrated by his request that his authority to sign expenditure authorisations be withdrawn.  In his opinion, those factors should have led the appointing authority to conclude that it was not pursuing interests opposed to his, and that his case should be distinguished from that of the other officials involved, in particular in respect of the defrayal of the costs of his defence before the French courts.

36      The Commission submits, in essence, that the application for annulment of the contested decision is inadmissible on the ground that the second request for assistance was itself inadmissible, since, firstly, the applicant had merely reiterated an earlier request for assistance without stating new facts and, secondly, the applicant had submitted that new request for assistance without exhausting national remedies.

37      As regards, firstly, the Commission’s argument that the second request for assistance was inadmissible because the applicant did not state new facts, it must be found that that request for assistance (see paragraph 22 above) contained a new fact as compared with the first request for assistance (see paragraph 15 above), which was submitted shortly after the applicant was charged by the investigating judge at the Tribunal de grande instance de Paris (Regional Court, Paris).

38      That new fact was the order of no need to adjudicate issued on 9 December 2013 by the investigating judge, which, following the Commission’s appeals, was upheld twice, most recently in a final judgment by the Cour de cassation (Court of Cassation) on 15 June 2016.

39      The order of no need to adjudicate followed by its upholding on appeal and the dismissal of the application for review — which refuted the Commission’s belief, reflected its pleadings in the appeal and cassation proceedings, that the applicant had committed a criminal offence — together constitute a new fact.

40      It is true that in the order of no need to adjudicate, the French investigating judge noted ‘that the mechanism resulting from the implementation of tripartite [contracts] concluded under the auspices of Eurostat breached Article 4.1 of the Financial Regulation’ of 21 December 1977 applicable to the general budget of the European Communities (OJ 1977 L 356, p. 1) (‘the Financial Regulation’), and, in its judgement of 23 June 2014, the cour d’appel de Paris (Court of Appeal, Paris) held that ‘the rules on re-use as provided for by the Financial Regulation were infringed’.

41      However, those findings were impersonal and did not name the applicant.

42      At the same time, the French criminal courts found that there had been no fraudulent intent or misappropriation. They made a number of statements, according to which: (1) although the datashop system did not comply with the Financial Regulation, it was, according to the Court of Auditors of the European Union, ‘a necessity given the inadequacy of that regulation’ and merely the ‘re-creation of a system already used completely legally by the OPOCE’; (2) ‘the existing Community procedures did not allow the data produced by Eurostat to be commercialised using a flexible, effective framework, and [, in] the absence of a suitable procedure, it was necessary to find solutions enabling Eurostat to perform its task’; and (3) ‘Financial Control, which had been involved with setting up the datashop network at the outset and had not been in favour of setting up that network using the system of tripartite contracts, in fact completely lost interest in how it was operating, leaving Eurostat officials in a position where they needed and were able to do “as best they could” at a time when the Commission’s strategy was to increase the supply of statistics given the very high levels of demand’ (order of no need to adjudicate; judgment of the cour d’appel de Paris (Court of Appeal of Paris) of 23 June 2014).

43      It follows from the foregoing considerations that by referring to the French criminal court decisions, the applicant correctly relied on a new fact.

44      In respect of, secondly, the inadmissibility of the second request for assistance on the ground of the failure to exhaust domestic remedies, it should be noted that that argument is based on the premise that Article 24 of the Staff Regulations, relating to assistance, is applicable in the present case and that therefore the administration’s strict liability under that provision of the Staff Regulations is conditional on the exhaustion of domestic remedies against the third party who caused the damage.

45      However, as will be explained in paragraphs 46 to 59 below, that premise is incorrect.

46      Article 24 of the Staff Regulations provides:

‘The Union shall assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties.

It shall jointly and severally compensate the official for damage suffered in such cases, in so far as the official did not either intentionally or through grave negligence cause damage and has been unable to obtain compensation from the person who did cause it.’

47      According to the case-law, the purpose of Article 24 of the Staff Regulations is to provide officials and other servants with protection both at the present time and in the future in order to enable them to better carry out their duties in the general interest of the service (judgments of 12 June 1986, Sommerlatte v Commission, 229/84, EU:C:1986:241, paragraph 19; of 27 June 2000; K v Commission, T‑67/99, EU:T:2000:169, paragraph 35; and of 20 July 2011, Gozi v Commission, F‑116/10, EU:F:2011:124, paragraph 12). An institution’s duty to provide assistance is therefore intended both to protect its staff and to safeguard its own interests and is thus based on the premise of shared interests. Thus, it has been held that the administration cannot be required to assist an official who is suspected of having seriously breached his professional obligations and who is thereby liable to disciplinary proceedings (judgment of 23 November 2010, Wenig v Commission, F‑75/09, EU:F:2010:150, paragraph 49).

48      More specifically and according to settled case-law, the duty to provide assistance laid down in Article 24 of the Staff Regulations is concerned with the protection of officials and other members of staff, by their institution, against the acts of third parties, not against acts of the institution itself, the review of which falls under other provisions of the Staff Regulations (judgments of 9 September 2016, De Esteban Alonso v Commission, T‑557/15 P, not published, EU:T:2016:456, paragraph 45, and of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 111; see also, to that effect, judgment of 12 July 2011, Commission v Q, T‑80/09 P, EU:T:2011:347, paragraph 66 and the case-law cited).

49      In the present case, the applicant was charged by the French judicial authorities on 7 October 2008. Those charges were brought further to a judicial investigation which had been opened on 4 April 2003 by those judicial authorities on the basis of information forwarded by OLAF on 19 March 2003 and following a criminal complaint against X lodged on 10 July 2003 by the Commission.

50      Following the order of no need to adjudicate, which was delivered in respect of all the persons charged including the applicant, the French criminal proceedings continued owing to an appeal against that order by the Commission, which was dismissed by judgment of the cour d’appel de Paris (Court of Appeal, Paris) of 23 June 2014 upholding that order, and an application for review submitted by the Commission against that judgment, which was dismissed by judgment of the Cour de cassation (Court of Cassation) of 15 June 2016.

51      It should be noted that, as the Court has already held in respect of Mr De Esteban Alonso in the case which was the subject of the judgment of 9 September 2016, De Esteban Alonso v Commission (T‑557/15 P, not published, EU:T:2016:456, paragraph 49), acts by the French judicial authorities, in particular the charging of the applicant, do not constitute the conduct referred to in Article 24 of the Staff Regulations. Not only are those acts part of the normal conduct of the criminal proceedings in question, but at no point does the applicant contend in earnest that they constituted unlawful attacks against him by the French judicial authorities and thus warranted the Commission’s assistance under Article 24 of the Staff Regulations.

52      However, as is apparent from the case-law, although the duty to provide assistance referred to in the first paragraph of Article 24 of the Staff Regulations constitutes a fundamental guarantee for an official under the Staff Regulations and is not subject to the condition that the unlawfulness of the acts on account of which the official has requested assistance must be established beforehand, he must still provide prima facie evidence to show that those actions have been aimed at him by reason of his position and duties and are unlawful under the national law applicable (judgment of 23 November 2010, Wenig v Commission, F‑75/09, EU:F:2010:150, paragraph 48).

53      That is not the case here since the applicant does not contend in earnest that the French judicial authorities acted illegally towards him and does not adduce any evidence to that effect.

54      In addition, it should be noted that the applicant is in fact seeking the Commission’s assistance not against the acts of third parties but against the Commission’s own acts that gave rise to criminal proceedings against him and, above all, extended the criminal proceedings until the judgment of the Cour de cassation (Court of Cassation) of 15 June 2016.

55      Although it is true that it was the French judicial authorities which charged the applicant, the fact remains that the criminal proceedings originated with the Commission, which forwarded information to those authorities and filed a criminal complaint. Moreover, and above all, the Commission caused the criminal proceedings to continue after the order of no need to adjudicate.

56      In the application, the applicant thus submits that, ‘although it might have seemed necessary for the Commission to appear as a civil party in the criminal proceedings in order to protect the EU’s financial interests, there was, however, no reason for the criminal proceedings to be continued against [him] … inasmuch as the Commission knew that he could not be accused of having knowingly participated in the unauthorised system for managing datashops that was set up by his hierarchical superiors’.

57      It is clear from the above that, under the case-law referred to in paragraph 48 above, Article 24 of the Staff Regulations does not apply in the present case since the acts in respect of which the applicant seeks assistance under Article 24 are not those of the French judicial authorities (the legality of which is moreover not disputed in earnest, see paragraphs 51 to 53 above), but those of the Commission itself.

58      Consequently, the Commission’s argument that the second request for assistance is inadmissible owing to the applicant’s failure to exhaust domestic remedies cannot be accepted.

59      It follows from the foregoing considerations that the Commission’s arguments alleging the inadmissibility of the action for annulment, which are based on the absence of new facts and the failure to comply with a condition for Article 24 of the Staff Regulations to apply, must be rejected.

 Substance

60      In the alternative to his request for assistance and in the event of its rejection, the applicant submitted, in his request and his prior administrative complaint, that the Commission had acted wrongfully in disregarding the fact that he had acted as whistle-blower. In that regard the applicant referred to Article 22a of the Staff Regulations. The Commission had learned of his role in disclosing the facts at the latest when its Internal Audit Service drew up its final report in 2003. He pointed out that if he had been subject to disciplinary proceedings, he would have been eligible to benefit from Article 21 of Annex IX to the Staff Regulations, concerning the defrayal by the institution of the defence costs of an official on whom a penalty is not imposed in disciplinary proceedings.

61      The applicant disputed that he had deliberately participated in the management system at issue. He claimed that he had soon expressed his doubts about that system and had not known that Financial Control was not involved in implementing the datashop network. He had asked for an internal audit and requested that his signing authority be withdrawn. He claimed to have been trapped in the present case. In addition, he did not learn of the disciplinary proceedings against him until 10 April 2017.

62      The applicant therefore considered that the Commission had breached the duty to protect whistle-blowers, which was aggravated by its appearance as a civil party in the criminal proceedings, the appeal against the order of no need to adjudicate, and then the application for review of the judgment of the cour d’appel de Paris (Court of Appeal, Paris) of 23 June 2014 upholding that order, which were tantamount to unfair accusations that he had knowingly participated in a system that breached the Financial Regulation.

63      The applicant thus considered that the damage which he sustained comprised material damage of EUR 68 331 for costs incurred during the French criminal proceedings and non-material damage of EUR 90 000 for the feeling of injustice resulting from having been subject to criminal proceedings for conduct that he had helped to disclose. He further requested that the Commission place a note on his personal file recognising his status as whistle-blower in the Eurostat case with a view to restoring his professional reputation.

64      In the application, the applicant, in essence, maintains his position. In his view, failure to take account of his status as a whistle-blower constitutes a breach of Article 22a of the Staff Regulations and of the duty of care. The fact that Article 22a was not inserted into the Staff Regulations until 2004 did not prevent the Commission from recognising in 2016 the role of whistle-blower that he had played at the material time in compliance with his duties under Articles 11 and 12 of the Staff Regulations. The duty of care and the principle of equal treatment required the Commission to distinguish his case from that of the other defendants in the Eurostat case.

65      However, the applicant states that the Commission, which was advised of the role that he had played by 22 October 2003 at the latest, omitted to inform the French judicial authorities of that role and unfairly extended the criminal proceedings against him even though it must have been aware that he had not knowingly participated in the datashop system. He submits that the Commission committed a breach of administrative duty in not protecting him against harm merely because he was Head of Unit at the time when the Eurostat case came to light. Lastly, concerning the disciplinary proceedings initiated by the Commission against him, he notes that the reasons given by the Commission for discontinuing those proceedings do not restore his professional reputation but continue to cast doubt on the manner in which he had discharged his duties.

66      As regards Article 24 of the Staff Regulations, the applicant maintains that the Commission is wrong to claim that even after the judgment of the Cour de cassation (Court of Cassation) of 15 June 2016 it is pursuing interests that are opposed to his, ruling out any possibility of assistance.

67      The Commission disputes the stance taken by the applicant. Article 22a was not incorporated into the Staff Regulations until 1 May 2004. The applicant cannot criticise the Commission for not having granted him a status which did not exist on the date of the note asking for an audit. In respect of the alleged breach of the duty of care, it is settled case-law that that duty does not allow advantages to be conferred for which there is no provision in the Staff Regulations. In respect of the alleged aggravation of the damage caused by the recourse to remedies, the Commission merely exercised a right.  In respect of the alleged wrongful bringing of disciplinary proceedings, it is established that the disciplinary proceedings would not have resulted in any sanction being imposed on the applicant, which explains why he was not informed of them. The purely formal opening of disciplinary proceedings, which was never made public and which did not result in any investigative measures, could not have injured the applicant.

68      As regards the alleged infringement of Article 24 of the Staff Regulations, the Commission reiterates its position regarding the inadmissibility of the second request for assistance under that provision and submits that, in any event, that request is unfounded because it relates to the reimbursement of costs which the applicant was required to incur with a view to proving his innocence in a situation where the Commission’s interests and those of the applicant were consistently opposed, and not to the reimbursement of costs incurred by the applicant in defending himself against attacks or unlawful acts committed by third parties.

 Claim for damages

69      Article 22a of the Staff Regulations provides:

‘1. Any official who, in the course of or in connection with the performance of his duties, becomes aware of facts which give rise to a presumption of the existence of possible illegal activity, including fraud or corruption, detrimental to the interests of the Union, or of conduct relating to the discharge of professional duties which may constitute a serious failure to comply with the obligations of officials of the Union, shall without delay inform either his immediate superior or his Director-General or, if he considers it useful, the Secretary-General, or the persons in equivalent positions, or the European Anti-Fraud Office (OLAF) direct.

3. An official shall not suffer any prejudicial effects on the part of the institution as a result of having communicated the information referred to in paragraphs 1 and 2, provided that he acted reasonably and honestly.’

70      Article 22 of the Staff Regulations, which established an obligation for all officials to report facts which give rise to a presumption of the existence of a possible illegal activity or serious failure to comply with the obligations of EU officials (see, to that effect, judgment of 8 October 2014, Bermejo Garde v EESC, T‑530/12 P, EU:T:2014:860, paragraphs 103 to 106), entered into force on 1 May 2004.

71      It should also be remarked that any official who, before 1 May 2004, alerted his superiors to unlawful activity or breaches of obligations under the Staff Regulations of which he was aware and which could adversely affect the EU’s financial interests had already been entitled to the protection of the institution for which he worked against any retaliation resulting from such disclosure and against any prejudicial effects on the part of that institution provided that he acted in good faith.

72      It should be added, however, that although that protection safeguards an official against prejudice on the part of the institution, it cannot have the aim of shielding him against investigations seeking to establish whether and to what extent he himself was implicated in the irregularities which he reported. At most, the fact that the official has reported such irregularities may, if those investigations confirm that he was implicated in the acts or omissions reported, be an attenuating circumstance in any ensuing disciplinary proceedings instigated by the institution following those investigations, as is, moreover, indicated in the Communication from Vice-President Šefčovič to the Commission of 6 December 2012, SEC (12012) 679 final, on Guidelines on Whistleblowing (point 3, in fine).

73      It follows from the foregoing considerations that the status of whistle-blower claimed by the applicant was not, in any event, capable of shielding him against procedures aiming to determine whether he was involved in the conduct that he reported.

74      The question that arises here is therefore not so much whether the applicant should have been granted the status of whistle-blower as whether, having regard to the specific facts of the case, the Commission acted unlawfully in causing the criminal proceedings to continue following the order of no need to adjudicate.

75      As regards the continuation of the criminal proceedings after the order of no need to adjudicate by means of lodging the appeal against that order and the application for review against the judgment of the cour d’appel de Paris (Court of Appeal, Paris) of 23 June 2014 upholding that order, it should be recalled that the ability to assert one’s rights through the courts and the judicial control which that entails constitutes the expression of a general principle of law which underlies the constitutional traditions common to the Member States and which is also laid down in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 (judgments of 15 May 1986, Johnston, 222/84, EU:C:1986:206, paragraphs 17 and 18, and of 17 July 1998, ITT Promedia v Commission, T‑111/96, EU:T:1998:183, paragraph 60), and by Article 47 of the Charter of Fundamental Rights of the European Union. As access to the courts is a fundamental right and a general principle ensuring the rule of law, it is only in wholly exceptional circumstances that the fact that legal proceedings are brought by an institution is capable of constituting a breach of administrative duty (see, to that effect, judgment of 28 September 1999, Frederiksen v Parliament, T‑48/97, EU:T:1999:175, paragraph 97).

76      In the present case, it must be held that, irrespective of the terms of the order of no need to adjudicate and the judgment of the cour d’appel de Paris (Court of Appeal, Paris) of 23 June 2014 upholding that order, in which the French criminal courts held, in essence, that the irregularities found were attributable more to the inadequacy of the EU’s regulatory framework than to the officials charged, who had merely sought to find solutions in Eurostat’s interest in that inadequate regulatory context, the circumstances of the present case do not appear sufficiently exceptional as to support a finding that the appeal lodged against that order and the application for review of that judgment constituted a breach of administrative duty on the part of the Commission. It follows that there is nothing to indicate that the applicant would be justified in claiming compensation for the non-material and material damage caused by the fact of having been the subject of criminal proceedings between 2003 and 2016.

 Claim for annulment

77      As regards the Commission’s refusal, once the applicant had been acquitted by the judgment of the Cour de cassation (Court of Cassation) of 15 June 2016, to bear the legal costs incurred by him in national criminal proceedings, it should be noted that the grounds for that refusal, as stated by the Commission in its rejection of the request and then in the rejection of the prior administrative complaint, reflect the real reason why the Commission dismissed the second request for assistance, although they do not respond clearly to some of the concerns raised by the applicant during the administrative proceedings.

78      As regards the applicant’s concerns, his references to Articles 22a and 24 of the Staff Regulations — in respect of which it has been found that Article 24 was not applicable in this case (see paragraph 57 above) and that Article 22a was not capable of shielding the applicant from criminal or disciplinary proceedings (see paragraph 73 above) — make apparent that he is essentially stating that he was not guilty in the Eurostat case.

79      Thus, from the beginning of the administrative proceedings, the applicant claimed that the datashop system had been convincingly presented to him as legitimate and validated, that he had acted in good faith, that he had never knowingly participated in the mechanism at issue, that he had sounded the alert quickly and that, in short, he had been trapped. On the strength of that conviction, supported by judgments in his favour from the French criminal courts, the applicant requested that the Commission pay the legal costs incurred in the national criminal proceedings and non-material damages for the feeling of injustice arising from the Commission’s failure to protect him despite his acting as whistle-blower in the Eurostat case. Similarly, it was for that reason that he had requested that a note recognising his role as a whistle-blower be placed on his file with a view to restoring his professional reputation.

80      After he had been acquitted in the criminal proceedings, the applicant moreover observed in his second request for assistance and in his prior administrative complaint that a comparable outcome in disciplinary proceedings would have warranted payment of his legal costs pursuant to Article 21 of Annex IX to the Staff Regulations.

81      However, the Commission did not respond clearly to those concerns of the applicant in its rejections of the request and the prior administrative complaint. It rejected the applicant’s submissions relating to Articles 22a and 24 of the Staff Regulations for technical reasons.

82      However, the Commission has made statements which show that its refusal in the administrative proceedings to pay the applicant’s costs was ultimately due not so much to a technical inapplicability of those provisions of the Staff Regulations as to, more fundamentally, its opinion that the applicant was guilty of breaching his obligations under those regulations.

83      That is why the Commission emphasised in bold type and on two occasions — in its rejection of the request and then in its rejection of the prior administrative complaint — that in the judgment of the Cour de cassation (Court of Cassation) of 15 June 2016, that court had confirmed that there had been a ‘disregard for European budgetary rules’ and had found that there was not ‘sufficient’ evidence to refer the defendants back to the trial court.

84      Furthermore, in the rejection of the prior administrative complaint, the Commission conducted assessments which led it to find that ‘[it] had pursued, during the criminal proceedings, interests opposed to those of the [applicant], with the result that Article 24 of the Staff Regulations could not, even in the event of a judgment [upholding the order of no need to adjudicate], constitute the basis for a request for assistance in view of obtaining redress for the injury suffered as a result of or during those proceedings’.

85      It must be stated that although it is correct, as well as obvious, that the Commission’s interests opposed those of the applicant during the criminal proceedings, that contradiction of interests could only logically continue after the judgment of the Cour de cassation (Court of Cassation) upholding the order of no need to adjudicate in so far as the Commission remained of the view that the applicant had breached his obligations under the Staff Regulations, regardless of his acquittal of any crime.

86      The defence provides further confirmation that the Commission continued to hold the view that the applicant was guilty of misconduct, even after the judgment of the Cour de cassation (Court of Cassation) of 15 June 2016.

87      In the defence, the Commission submits that ‘the circumstances in which the order of no need to adjudicate was issued (that order maintains financial manipulation as a possibility) and the discontinuation of disciplinary proceedings for reasons of expediency did not remove the adversity of interests between the parties and provided justification for [it] not to change its decision not to provide assistance’.

88      Ultimately, it therefore appears that the Commission’s decision not to pay the applicant’s legal costs during national proceedings was not due so much to a technical inapplicability of Article 24 of the Staff Regulations — which the Commission furthermore suggests was not an insurmountable obstacle to its reimbursement of those costs — as to the continued ‘adversity of interests’ and hence to the Commission’s unwavering opinion that the applicant had breached his obligations under the Staff Regulations.

89      However, given that the applicant was no longer a defendant in national criminal proceedings — the French courts, moreover, never having named him personally as having violated the financial rules — and given that, furthermore, on the date when the contested decision was adopted he had not been the subject of any disciplinary decision finding a breach of obligations under the Staff Regulations, not only had he been acquitted in the French criminal proceedings but he was also necessarily entitled to be presumed innocent in respect of his discharge of obligations under the Staff Regulations.

90      Admittedly, the applicant does not explicitly plead that the presumption of innocence was breached. That is because he is convinced of his innocence and relies on it directly to challenge the contested decision. However, that position necessarily entails, a majore ad minus, and as the applicant indeed confirmed during the hearing, an allegation of a breach of the principle of the presumption of innocence, in particular given that, having maintained that he was not guilty (see paragraph 79 above), he argues that by its conduct, ‘the Commission casts doubt on the manner in which he performed his duties [and] on his professional integrity’.

91      It should be recalled that the principle of the presumption of innocence, which constitutes a fundamental right set out in Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 48(1) of the Charter of Fundamental Rights, confers rights on individuals which are enforced by the EU judicature (judgments of 4 October 2006, Tillack v Commission, T‑193/04, EU:T:2006:292, paragraph 121; of 8 July 2008, Franchet and Byk v Commission, T‑48/05, EU:T:2008:257, paragraph 209; and of 12 July 2012, Commission v Nanopoulos, T‑308/10 P, EU:T:2012:370, paragraph 90).

92      That principle — which is one of the fundamental rights (judgments of 8 July 1999, Montecatini v Commission, C‑235/92 P, EU:C:1999:362, paragraph 175, and of 4 October 2006, Tillack v Commission, T‑193/04, EU:T:2006:292, paragraph 121) that are themselves, according to the case-law, general principles of EU law (judgment of 27 September 2006, Dresdner Bank and Others v Commission, T‑44/02 OP, T‑54/05 OP, T‑56/02 OP, T‑60/02 OP and T‑61/02 OP, EU:T:2006:271, paragraph 61) — is applicable to administrative proceedings having regard to the nature of the infringements in question and the nature and degree of severity of the ensuing penalties (see, in competition matters, judgments of 8 July 2004, JFE Engineering v Commission, T‑67/00, T‑68/00, T‑71/00 and T‑78/00, EU:T:2004:221, paragraph 178; of 27 September 2006, Dresdner Bank and Others v Commission, T‑44/02 OP, T‑54/05 OP, T‑56/02 OP, T‑60/02 OP and T‑61/02 OP, EU:T:2006:271, paragraph 61; and of 5 October 2011, Romana Tabacchi v Commission, T‑11/06, EU:T:2011:560, paragraph 129). It follows that the right to the presumption of innocence applies, even in the absence of a criminal prosecution, to an official accused of a breach of obligations under the Staff Regulations which is sufficiently serious to warrant an investigation by OLAF, in the light of which the administration may adopt any measure it deems necessary, however severe (judgments of 28 March 2012, BD v Commission, F‑36/11, EU:F:2012:49, paragraph 51 and of 29 April 2015, CJ v ECDC, F‑159/12 and F‑161/12, EU:F:2015:38, paragraph 154).

93      In the present case, in rejecting the applicant’s request for the payment of the legal costs he incurred in the national criminal proceedings, for the reason, essentially, that its interests continued to oppose those of the applicant, the Commission breached his right to be presumed innocent.

94      The argument put forward by the Commission at the hearing that, at the time when the contested decision was adopted, the Commission’s interests legitimately continued to oppose those of the applicant because the decision to close the disciplinary ‘file’ was not taken until a few days later, on 10 April 2017, must be dismissed for the following reasons.

95      Firstly, the existence, in the Commission’s vague phrasing, of a disciplinary ‘file’ that had been opened in respect of the applicant at the date of the contested decision has not only failed to be established, it is contradicted by the facts. It does not appear that the opening of the file CMS 04/002 in January 2004 following a request for the applicant’s immunity from prosecution to be lifted marked the start of disciplinary proceedings nor even of an administrative investigation in his respect. Furthermore, and in any event, file CMS 04/002 was removed from the CMS (Case Management System) list in 2010 and destroyed in 2012 at the end of the retention period for records.

96      Secondly, and in any event, even assuming that proceedings were ongoing in respect of the applicant on the date of the contested decision, the Commission could not, without fault on its part, dismiss the second request for assistance on the basis of its opinion that the applicant was guilty of misconduct then discontinue those alleged proceedings a few days later since the very purpose of those proceedings was to validate or invalidate that opinion.

97      Lastly, and in so far as the Commission’s argument suggests that the applicant became entitled to the presumption of innocence only when those alleged proceedings were discontinued, it must be observed in passing, firstly, that an official is entitled to be presumed innocent at every stage prior to the adoption of a decision finding him guilty and, secondly, that during proceedings before the Court, the Commission in fact continued to breach the applicant’s right to be presumed innocent, submitting in the defence that ‘the discontinuation of the disciplinary proceedings for reasons of expediency [has] not remove[d] the adversity of interests between the parties’.

98      In the light of all the foregoing considerations, from which it is apparent that the contested decision was based on a breach of the presumption of innocence, it is appropriate to annul that decision, bearing in mind that it is for the Commission to take the necessary measures to comply with the judgment.

 Costs

99      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. Under Article 134(2) of those rules, where there is more than one unsuccessful party, the Court is to decide how the costs are to be shared.

100    Since the Commission has been largely unsuccessful, it must be ordered to pay the costs.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1.      Dismisses the claims for damages;

2.      Annuls the decision of the European Commission of 28 March 2017 rejecting Mr Amador Rodriguez Prieto’s request for assistance;

3.      Declares that the Commission is to bear its own costs and orders it to pay those incurred by Mr Rodriguez Prieto.

Collins

Barents

Passer

Delivered in open court in Luxembourg on 4 April 2019.

[Signatures]


*      Language of the case: French.