ORDER OF THE PRESIDENT OF THE GENERAL COURT
31 March 2022 (*)
(Interim relief – Civil service – Officials – Disciplinary proceedings – Removal from post – Application for interim measures – Urgency – Prima facie case – Weighing of interests)
In Case T‑22/22 R,
AL, represented by R. Rata, lawyer,
applicant,
v
Council of the European Union, represented by M. Bauer and M. Alver, acting as Agents,
defendant,
APPLICATION under Articles 278 and 279 TFEU for, first, suspension of operation of the decision of the Council of 27 September 2021 imposing on the applicant the disciplinary penalty of removal from post with effect from 1 October 2021 and, second, reinstatement of the applicant as an official in his previous post and position,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Background to the dispute, procedure and forms of order of the parties
1 The applicant, AL, became an official of the Council of the European Union on 1 September 2008. He was assigned to the ‘Quality of Legislation’ directorate within the Council’s Legal Service.
2 Between 2009 and 2019, the applicant made several declarations to the appointing authority with a view to obtaining the allowances and financial benefits provided for by the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) for a number of persons who were integrated into his family during his period of service.
3 By letter of 7 September 2016, the appointing authority informed the European Anti-Fraud Office (OLAF) of its concerns regarding the applicant’s requests for family allowances.
4 On 8 November 2016, OLAF opened an investigation into suspected fraud on the part of the applicant concerning the composition of his family and the conditions required for obtaining family allowances.
5 On 23 December 2020, the applicant was informed about the closure of OLAF’s investigation. In its report, OLAF, inter alia, sent recommendations to the Council that it take all the appropriate measures for recovery of the sum of EUR 93 166.52 unduly paid to the applicant and initiate disciplinary proceedings against him.
6 On 27 September 2021, following the disciplinary proceedings, the applicant was removed from office with effect from 1 October 2021 by decision of the Secretary-General of the Council (‘the contested decision’).
7 On 22 October 2021, the appointing authority decided to uphold in part a complaint filed by the applicant against certain financial recovery decisions and ordered the European Commission’s Office for the ‘Administration and Payment of Individual Entitlements’ (PMO) to restore the allowances in question.
8 On 22 December 2021, the applicant submitted a complaint under Article 90(2) of the Staff Regulations against the contested decision.
9 By application lodged at the Court Registry on 13 January 2022, the applicant brought an action for, inter alia, annulment of the contested decision.
10 By separate document lodged at the Court Registry on the same day, the applicant brought the present application for interim measures, in which he claims, in essence, that the President of the General Court should:
– order the suspension of operation of the contested decision;
– reinstate the applicant as a Council official in his previous post and position as an interim measure until the end of the proceedings before the Court for annulment of the contested decision;
– order the Council to pay the costs.
11 In its observations on the application for interim measures, lodged at the Court Registry on 28 January 2022, the Council contends that the President of the General Court should:
– dismiss the application for interim measures;
– order the applicant to pay the costs.
12 On 10 February 2022, the applicant lodged his observations in response to the Council’s observations.
13 On 25 February 2022, the Council lodged its observations in response to the applicant’s observations of 10 February 2022.
Law
General considerations
14 It is apparent from a reading of Articles 278 and 279 TFEU, together with Article 256(1) TFEU, that the judge hearing an application for interim measures may, if he or she considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure of the General Court. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).
15 The first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures must state ‘the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’.
16 The judge hearing an application for interim relief may thus order suspension of operation of an act, and other interim measures, if it is established that such an order is justified, prima facie, in fact and in law, and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim relief is also to undertake, when necessary, a weighing of the competing interests (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P‑R, EU:C:2016:142, paragraph 21 and the case-law cited).
17 In the context of that overall examination, the judge hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).
18 Having regard to the material in the case file, the President of the General Court considers that he has all the information needed to rule on the present application for interim measures, without there being any need to hear oral argument from the parties first.
19 In the circumstances of the present case, it is appropriate to examine first whether the condition relating to urgency is satisfied.
The condition relating to urgency
20 In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the EU Courts (order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P‑R, EU:C:2016:21, paragraph 27).
21 To attain that objective, urgency must, in general terms, be assessed in the light of the need for an interlocutory order to avoid serious and irreparable damage to the party requesting the interim measure. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P‑R, EU:C:2016:21, paragraph 27 and the case-law cited).
22 It is in the light of those criteria that it is necessary to examine whether the applicant has succeeded in demonstrating urgency.
23 In the present case, in order to demonstrate the serious and irreparable nature of the damage, the applicant submits in particular that suspension of operation of the contested decision and his reinstatement as an official of the Council in his previous post and position, as an interim measure, are necessary in order to preserve the health, or even the life, of his disabled adopted son. His adopted son, who currently studies at the Katholieke Universiteit Leuven (Catholic University of Louvain, Belgium), is a permanent wheelchair user and suffers from a severe disability and associated illnesses which present a threat to his life. The applicant argues that, in taking the contested decision, the appointing authority completely disregarded the welfare of his adopted son and, in particular, his medical interests. As a result of his removal from post, the applicant has lost the financial benefits which he received for his son, namely a child allowance, a double allowance owing to his disability, supplementary health insurance for the full reimbursement of medical expenses, and the reimbursement of home care. For his university studies, his son received an education allowance and a reimbursement of 90% in respect of his disability-adapted student accommodation. Following the applicant’s removal from post, his son currently has special cover under the Joint Sickness Insurance Scheme of the Institutions of the European Communities (JSIS) for the period from 1 October 2021 to 31 March 2022. That cover is not renewable. As from 31 March 2022, his son will lose that financial support and will be deprived of the medical and educational support which he has received over the previous 12 years, which is vital for a disabled young person in his condition.
24 The Council argues that the applicant has not shown that the condition relating to urgency is satisfied in the present case.
25 The Council contends in particular that the alleged serious and irreparable damage will arise not for the applicant personally but for his son. In accordance with the case-law, that factor can therefore potentially be taken into consideration only in the context of weighing the competing interests. In addition, the Council adds that the applicant remains silent as to his own and his son’s current personal and financial situation, particularly as regards his employment status, the question of social security and sickness insurance for his son under the Belgian or any other insurance scheme, and possible financial support for him from other sources. Accordingly, it argues, the applicant does not provide a true and complete picture of his and his son’s financial situation, as required by the case-law.
26 In that regard, in the first place, so far as concerns the applicant’s argument that suspension of operation of the contested decision is necessary in order to preserve the health, or even life, of his disabled adopted son, it follows from the case-law that the serious and irreparable damage alleged, which suspension of operation of the contested decision is intended to avoid, can be taken into account by the judge hearing an application for interim measures, in his or her consideration of the criterion of urgency, only in so far as it may be caused to the interests of the party seeking the interim relief. It follows that the damage which the operation of the contested decision may cause to a party other than the party seeking the interim relief can be taken into consideration by the judge hearing the application for interim measures only when balancing the interests at stake (see order of 22 July 2021, Aloe Vera of Europe v Commission, T‑189/21 R, not published, EU:T:2021:487, paragraph 55).
27 In those circumstances, the damage to the health and life of the applicant’s disabled adopted son and the damage connected with the loss of the financial benefits that he received for his son, as pleaded by the applicant, can be taken into account by the judge hearing the application for interim measures only in so far as that damage may be caused to the applicant.
28 It cannot be disputed that a son’s health is at the centre of a father’s worries and concerns, whether the son is adopted or not. The serious and irreparable damage alleged by the applicant in respect of the health and life of his son is therefore capable of directly affecting the applicant as an adoptive father.
29 As a single parent who has assumed and continues to assume responsibility for the treatment and education of his adopted son, who is affected by congenital cerebral palsy/spastic tetra paresis and associated illnesses, the applicant would necessarily suffer serious and irreparable personal damage if, owing to the lack of the current wide-ranging medical support, his adopted son’s health could no longer be ensured until a possible favourable judgment in the main action.
30 Since that medical support depends on the financial allowances and benefits to which the applicant and his son were entitled by virtue of the applicant’s status as an official, their loss would cause the latter direct damage. As a single parent who has financial responsibility for the medical support and education of his disabled adopted son, the applicant will personally suffer serious and irreparable damage if, from 31 March 2022, his son is deprived of that medical and educational support, thus exposing him to the risks to his health which are alleged.
31 The Council’s argument that the applicant remains completely silent as to his and his son’s current personal and financial situation, in particular as regards his employment status, the social security and sickness insurance for his son under the Belgian or some other insurance scheme and as to possible financial support for him from other sources, cannot call that finding into question.
32 It is true that it is for the party seeking interim relief from the judge hearing applications for interim measures to provide the essential evidence enabling that judge to establish a true overall picture of that party’s financial situation. That information must, on the one hand, be specific and precise and, on the other, be supported by detailed and certified documentary evidence (see, to that effect and by analogy, order of 20 April 2012, Fapricela v Commission, C‑507/11 P(R), not published, EU:C:2012:231, paragraph 35 and the case-law cited).
33 However, as is apparent from the file, on pages 216 and 217 of Annex A.32 to the application for interim measures, the applicant informed the Council, by email of 15 January 2022, that he was currently not in gainful employment. By email of 18 January 2022, the Council confirmed to him that the repayment of his debt had been deferred for two months specifically on the ground that the applicant was not in gainful employment.
34 In that regard, it should be stated that financial damage which is objectively considerable or even not insignificant may be considered ‘serious’, without it being necessary in every case to relate that damage systematically to the income of the person who fears suffering that damage (see, to that effect and by analogy, order of 25 July 2014, Deza v ECHA, T‑189/14 R, not published, EU:T:2014:686, paragraph 83 and the case‑law cited).
35 In addition, in a statement by Dr DE, on page 171 of Annex A.21 to the application for interim measures, that doctor confirms that it is of the utmost importance for the applicant’s adopted son to continue to benefit from urgent measures to allow him effectively to retain the same strong disability-related support and that any interruption or reduction of that support could pose a vital risk or produce a serious and irreversible deterioration of his medical and mental condition.
36 It follows from the foregoing that the contested decision manifestly entails damage of a serious and irreparable nature to the applicant.
37 It must therefore be concluded that the condition relating to urgency is satisfied, without it being necessary to rule on the other damage relied on by the applicant.
The condition relating to a prima facie case
38 According to settled case-law, the prima facie case requirement is satisfied where at least one of the pleas in law put forward by the party seeking interim measures in support of the main action appears, at first sight, not unfounded. That is the case where one of the pleas relied on reveals the existence of a major legal or factual disagreement the solution to which is not immediately obvious and therefore calls for a detailed examination that cannot be carried out by the judge hearing the application for interim measures but must be the subject of the main proceedings (see, to that effect, orders of 3 December 2014, Greece v Commission, C‑431/14 P‑R, EU:C:2014:2418, paragraph 20 and the case-law cited, and of 1 March 2017, EMA v MSD Animal Health Innovation and Intervet international, C‑512/16 P(R), not published, EU:C:2017:149, paragraph 59 and the case-law cited).
39 In order to determine whether the condition of establishing a prima facie case is satisfied in the present case, it is necessary to carry out a prima facie examination of the substance of the complaints raised by the applicant in support of the action in the main proceedings and therefore to ascertain whether at least one of them is sufficiently weighty to justify it not being ruled out in the proceedings for interim measures (see order of 4 May 2020, Csordas and Others v Commission, T‑146/20 R, not published, EU:T:2020:172, paragraph 26 and the case-law cited).
40 In the present case, in order to show that the contested decision is, on the face of it, vitiated by unlawfulness, the applicant relies on 2 pleas in law in his application for interim measures and on 13 pleas in law in support of the main action.
41 It is appropriate to examine the first plea in the application for interim measures, by which the applicant pleads the need for suspension of operation of the contested decision in order to preserve the health, or even the life, of his disabled son.
42 In the first place, the applicant argues, inter alia, by the first complaint of the first plea, that, by annulling on 22 October 2021 its own decision to recover the allowances received for his sons in respect of the period from 1 August 2010 to 29 January 2013, the appointing authority had conceded, three weeks after his removal from post, that he had not been guilty of any irregularity in relation to those allowances. That decision decreased the balance of the recovery order in December 2021 to EUR 77 610.87 instead of the EUR 166 835.74 initially calculated. According to the applicant, the reduction by more than half of the sums that it was allegedly necessary to recover should logically have a direct impact on the disciplinary penalty previously adopted in his regard on 27 September 2021. Indeed, he submits, the appointing authority might have taken a less severe disciplinary decision on 27 September 2021 if it had possessed the new facts that the appointing authority later established in his favour in its decision of 22 October 2021.
43 In the second place, the applicant submits, by the second complaint of the first plea, that neither the Belgian nor the Romanian authorities have begun criminal actions or proceedings in respect of the misconduct of which he was accused. In particular, he states that the case in Belgium relating to suspicions of a sham marriage was closed on 24 November 2016, without any further action being taken owing to insufficient evidence. As regards the information provided by the applicant to the Romanian authorities for obtaining adoption or placement in foster care, the applicant claims that the competent Romanian authorities alone have to decide whether that information was accurate, complete or sufficient and that those authorities never initiated any proceedings against him. Accordingly, the EU institutions are required by the Staff Regulations to limit themselves to checking that the supporting documents required for the granting of the family allowances are present.
44 Consequently, the applicant concludes that, where there has been no misconduct as regards the decision of the Romanian authorities to place his sons in a foster family and the subsequent allowances granted for the period from 1 August 2010 to 29 January 2013, removal from post is a manifestly disproportionate penalty in relation to the conduct complained of.
45 In the third place, by the third complaint of the first plea, the applicant states that, in taking the contested decision, the appointing authority disregarded the welfare and, in particular, the medical interests of his adopted son. According to the applicant, the welfare and medical interests of the members of his family ought to be examined in the light of point (d) of the second sentence of Article 10 of Annex IX to the Staff Regulations, as the Disciplinary Board had done. The applicant adds that the Disciplinary Board had taken due account of the special situation of his adopted son and had proposed the classification of the applicant in a lower function group, with downgrading, as a penalty. However, by the contested decision, the appointing authority took the ultimate disciplinary measure against the applicant, namely removal from post, which is a measure that is totally disproportionate to the conduct complained of and, above all, one that is prejudicial to the fragile health of his disabled adopted son.
46 The Council disputes the applicant’s arguments.
47 In the first place, the Council states that, according to settled case-law, the appointing authority has the power to proceed to an assessment of the official’s responsibility which is different from that of the Disciplinary Board and to choose, as a consequence, the disciplinary penalty which it considers to be adequate to sanction the misconduct found.
48 In the second place, the Council observes that points (a) to (i) of the second sentence of Article 10 of Annex IX to the Staff Regulations set out, in a non-exhaustive manner, a number of factors which, ‘in particular’, are to be taken into account in order to determine the seriousness of the misconduct and to decide upon the disciplinary penalty to be imposed. Those factors to be taken into account in the decision upon the disciplinary penalty do not include the welfare and medical interests of the members of the family of the official concerned. In any event, the appointing authority addresses that issue in paragraphs 40 to 42 of the contested decision.
49 In the third place, the Council also notes that the question whether a failure by an official to comply with his or her obligations under the Staff Regulations has resulted in an overpayment to be recovered and, if so, the amount of that overpayment, are issues that are irrelevant for determining whether the official is liable to face a disciplinary penalty under Article 86(1) of the Staff Regulations. Furthermore, the criteria for the recovery of overpayments under Article 85 of the Staff Regulations are different from those for determining the seriousness of the misconduct and deciding upon the disciplinary penalty under Article 10 of Annex IX to the Staff Regulations. According to the Council, the file does not contain the slightest indication that the overpaid sum to be recovered was taken into account by the appointing authority in the decision on the disciplinary penalty. The subject matter of the disciplinary proceedings was not the amount of the sums overpaid or the validity of decisions by a Romanian State authority or by Romanian judicial authorities that were taken on the basis of information that the applicant had provided to them, but the conduct of the applicant, as an EU official, toward the appointing authority and the Romanian State or judicial authorities as regards the accuracy of the information which he provided to those authorities concerning his personal situation.
50 In that regard, it should be borne in mind that, according to the case-law, a decision imposing a penalty of removal necessarily entails a careful consideration on the part of the institution, having regard to the particularly serious consequences arising from it. The institution has broad discretion in that respect and the Court cannot substitute its own assessment for that of the appointing authority. The judicial review is limited to ascertaining whether the facts relied on are materially accurate, and whether there has been any manifest error of assessment of the facts and any misuse of powers (see, to that effect, judgment of 12 July 2012, Commission v Nanopoulos, T‑308/10 P, EU:T:2012:370, paragraph 150 and the case-law cited). In addition, the lawfulness of any disciplinary measure assumes that the truth of the facts alleged against the person concerned has been established (see judgment of 17 May 2000, Tzikis v Commission, T‑203/98, EU:T:2000:130, paragraph 51 and the case-law cited).
51 Moreover, an error may be classified as manifest only where it can be readily detected, in the light of the criteria to which the legislature intended the administration’s exercise of its discretion to be subject. Consequently, in order to establish that the administration committed a manifest error in assessing the facts such as to justify annulment of the decision taken as a consequence, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, the plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the disputed assessment may still be accepted as justified and consistent (see judgment of 2 April 2019, Fleig v EEAS, T‑492/17, not published, EU:T:2019:211, paragraph 55 and the case-law cited).
52 In accordance with that case-law, it is therefore for the applicant to adduce evidence which makes the findings of the administration implausible. Consequently, it is necessary to ascertain whether the arguments put forward by the applicant are capable of demonstrating a prima facie manifest error of assessment on the part of the appointing authority.
53 In addition, it should be borne in mind that the principle of proportionality requires that the acts of the EU institutions must not exceed what is appropriate and necessary for attaining the objective pursued, on the understanding that, where there is a choice between several appropriate measures, the least onerous must be used. Given the broad discretion that the institutions have in organising their services and deploying the staff which they have at their disposal, the Court must limit itself to ascertaining whether the act decided on is not manifestly inappropriate in relation to the objective pursued (see, to that effect, judgment of 5 March 2019, Pethke v EUIPO, T‑169/17, not published, EU:T:2019:135, paragraph 122 and the case-law cited).
54 In the present case, in the first place, the applicant submits that, by annulling on 22 October 2021 its own decision to recover the allowances received for his sons in respect of the period from 1 August 2010 to 29 January 2013, the appointing authority had acknowledged, three weeks after his removal from post, that he was not guilty of any irregularity in relation to those allowances and that that fact should have a direct impact on the disciplinary penalty previously imposed on him. Although the file does not contain any indications that the overpaid sum giving rise to recovery was taken into account by the appointing authority in the decision on the disciplinary penalty, it is a fact that all the wrongful acts of which the applicant is accused are directly linked to the nature of the family allowances requested by the applicant as payments that were not due.
55 Consequently, it is not possible to rule out the direct effect of the reduction by more than half of the sums allegedly to be recovered on the cause of action which led the appointing authority to initiate disciplinary proceedings against the applicant and, therefore, on the disciplinary penalty imposed on him.
56 Furthermore, as regards the applicant’s argument that no action or criminal proceedings were brought by the competent national authorities concerning the misconduct of which he was accused, it should be noted that, in that context, the competent Romanian anti-fraud and anti-corruption authorities have confirmed on several occasions that the applicant was not known to their services, that there was no ongoing case linked to his name and that he was neither a suspect nor an indicted person.
57 In addition, it should be noted, as the Council itself acknowledged, that the appointing authority’s decision on the family allowances for the applicant’s sons was taken on the basis of two decisions by the competent Romanian authorities, which are judicial decisions based on Member States’ legislation on the protection of minors, within the meaning of Article 2(2) of Annex VII to the Staff Regulations, and which, as long as they are not annulled or declared void ex tunc by the competent national authorities, are to be considered valid and thus constitute the basis for treating the applicant’s two sons as dependent children under that provision.
58 Consequently, it follows, prima facie, from those factors, without prejudging the future decision of the Court in the main proceedings, that the reduction of the sums to be recovered should have a direct impact on the disciplinary penalty adopted in respect of the applicant and that, in order to determine the seriousness of the misconduct and to decide on the disciplinary penalty to be imposed on the applicant, the appointing authority, in its analysis of the nature of the misconduct and the circumstances in which it occurred, in accordance with point (a) of the second sentence of Article 10 of Annex IX to the Staff Regulations, should have taken into account the fact that no action or criminal proceedings had been initiated by the Romanian authorities in respect of the misconduct alleged against him.
59 It follows from the foregoing that, without prejudice to the decision of the Court on the main action, it must be concluded that the first and second complaints put forward by the applicant in the first plea appear, prima facie, not unfounded. They therefore deserve a thorough examination which cannot be carried out by the judge hearing an application for interim measures but must be undertaken within the main proceedings.
60 In the second place, as regards the applicant’s argument that the appointing authority did not take into account, in the contested decision, the welfare of his adopted son and, in particular, his medical interests, in the light of point (d) of the second sentence of Article 10 of Annex IX to the Staff Regulations, it should be noted that the appointing authority stated, in paragraph 40 of the contested decision, that the Disciplinary Board had taken note of the applicant’s insistence on the fact that his actions were motivated by his children’s welfare and that he dedicated the bulk of his resources to them. However, it is indeed true that the Disciplinary Board also took the view in that regard that the means employed by the applicant to achieve those ends had given rise to the applicant’s misconduct. Given those considerations, the appointing authority observed that the children’s welfare could not under any circumstances excuse the applicant’s behaviour.
61 In that regard, it must be acknowledged that, although the children’s welfare cannot under any circumstances excuse the applicant’s behaviour, it seems, prima facie, that the appointing authority should nevertheless have taken that factor into account as a motive which had led the applicant to commit the misconduct, in terms of point (d) of the second sentence of Article 10 of Annex IX to the Staff Regulations, in particular since, as the appointing authority itself recognises in paragraph 42 of the contested decision, the applicant did not have any malicious intent or a wish to enrich himself personally.
62 Moreover, that factor was taken into account by the Disciplinary Board, which unanimously proposed that the applicant be classified in a lower function group, with downgrading.
63 It follows from the foregoing that, without prejudging the decision of the Court on the main action, it must be concluded that this complaint also appears, prima facie, not unfounded and therefore calls for an in-depth examination which cannot be carried out by the judge hearing the application for interim measures, but must be undertaken in the main proceedings.
64 It must therefore be held that there is a prima facie case, in so far as the first, second and third complaints of the first plea appear, prima facie, not unfounded.
The weighing of interests
65 According to the case-law, the risks associated with each of the possible disposals of the case must be weighed in the proceedings for interim measures. In practical terms, this means examining, inter alia, whether or not the interest of the party seeking interim measures in obtaining suspension of the operation of the contested act outweighs the interest in its immediate implementation. In that examination, it must be determined whether the possible annulment of that act by the judgment on the substance would make it possible to reverse the situation that would have been brought about by its immediate implementation and, conversely, whether suspension of its operation would be such as to impede the objectives pursued by the contested act in the event of the main action being dismissed (see order of 1 March 2017, EMA v MSD Animal Health Innovation and Intervet international, C‑512/16 P(R), not published, EU:C:2017:149, paragraph 127 and the case-law cited).
66 In the present case, as regards the applicant’s interest, he submits that, in order to avoid serious and irreparable consequences which, in the case of his disabled adopted son, might even result in his death, the interim measures sought are necessary until the end of the proceedings before the Court. According to the applicant, if the contested decision is immediately implemented, his adopted son will no longer receive the allowances that enable him to receive the medical care necessary for his survival.
67 As regards the Council’s interest, it submits that, by his misconduct, the applicant has severely and irreparably damaged one of the essential foundations of the relationship between an official and his or her institution, namely confidence in the loyalty and integrity of the official. The reinstatement of the applicant in his previous post, even as an interim measure, would therefore raise serious difficulties. As a serving official, the applicant would continue to pose a real and significant threat to the interests of the institution and of the European Union, since there is no guarantee that he will not repeat that same behaviour.
68 In that regard, it should be noted that the duty of loyalty does indeed have an impact on the preservation of a personal relationship of trust between an institution and its officials which affects the maintenance of an employment relationship. That duty requires not only that officials refrain from conduct detrimental to the dignity of the role and the respect due to the institution and its authorities, but also that they conduct themselves in a manner that is beyond suspicion, in order that the relationship of trust between that institution and themselves may at all times be maintained (judgment of 19 May 1999, Connolly v Commission, T‑34/96 and T‑163/96, EU:T:1999:102, paragraph 128). However, it does not follow that all breaches of the duty of loyalty systematically lead to loss of that trust, and therefore to dismissal as the inevitable result (judgment of 9 June 2021, DI v ECB, T‑514/19, under appeal, EU:T:2021:332, paragraph 211).
69 By contrast, if the interim measures sought by the applicant are not ordered, the applicant’s adopted son will no longer receive the allowances that enable him to receive the medical care that is indispensable for his survival.
70 In the light of the foregoing, it must be concluded that the balance of interests weighs in favour of the applicant.
71 It follows from all the foregoing that the application for interim measures must be granted.
72 Since the suspension of operation of the contested decision leads to the immediate reappointment of the applicant, it is not necessary to rule separately on the head of claim referring specifically to that reappointment.
73 Pursuant to Article 158(5) of the Rules of Procedure, it is appropriate to reserve the costs.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The operation of the decision of the Council of the European Union of 27 September 2021 imposing on the applicant the disciplinary penalty of removal from post is suspended with effect from 1 October 2021.
2. The costs are reserved.
Luxembourg, 31 March 2022.
E. Coulon | | M. van der Woude |