T-214/25

ORDER OF THE GENERAL COURT (Third Chamber) 10 February 2026 (*) ( Civil service – Officials – Disciplinary proceedings – Disciplinary penalty – Downgrading in the same function group – Unauthorised engagement in outside activities – Article 10 of Annex IX to the Staff Regulations – Manifest error of assessment – Proportionality – Action manifestly lacking any foundation in law ) In Case T‑214/25, IR, represented by S. Rodrigues and A. Champetier, lawyers, applicant, v Council of the European Union, represented by M. Bauer and M. Alver, acting as Agents, defendant, THE GENERAL COURT (Third Chamber), composed of K. Kowalik-Bańczyk, President, I. Reine (Rapporteur) and H. Cassagnabère, Judges, Registrar: V. Di Bucci, having regard to the written part of the procedure, makes the following Order 1        By his action under Article 270 TFEU, the applicant, IR, seeks annulment of the decision of the Council of the European Union of 18 July 2024, by which it imposed a disciplinary penalty on him (‘the contested decision’) and, in so far as necessary, of the decision of the appointing authority of 20 December 2024 rejecting his complaint against the contested decision (‘the decision rejecting the complaint’).  Background to the dispute 2        The applicant has been an official in grade AST 4 in a translation unit within the General Secretariat of the Council since 1 February 2008. 3        On 9 December 2020, the appointing authority entrusted the legal advisers of the ‘Administration’ unit with carrying out an administrative investigation with the aim of establishing whether the applicant had engaged in outside activities without having sought permission to do so, in breach of Article 12 and Article 12b of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and of provisions of Decision No 61/2015 of the Secretary-General of the Council on outside activities and assignments. 4        On 8 October 2021, the European Anti-Fraud Office (OLAF) decided to open an investigation concerning the applicant. 5        In the final report from OLAF of 16 February 2024, it was recommended that the Secretary-General of the Council initiate disciplinary proceedings in relation to the applicant. 6        The appointing authority decided, on 21 March 2024, to initiate disciplinary proceedings before the Disciplinary Board concerning the applicant. 7        On 10 July 2024, the Disciplinary Board issued a reasoned opinion in which it considered the facts alleged against the applicant to be established and recommended a downgrading by two grades in the same function group. 8        On 15 July 2024, the applicant was heard by the appointing authority on the opinion of the Disciplinary Board. 9        On 18 July 2024, the appointing authority adopted the contested decision, in which it decided to impose on the applicant the disciplinary penalty of downgrading by two grades in the same function group. 10      In the contested decision, in the first place, the appointing authority found that the applicant’s behaviour had infringed Articles 11, 12 and 12b of the Staff Regulations and Article 4(1) and Article 9(1) of Decision No 61/2015. First, the appointing authority found that, between 2013 and 2021, the applicant had provided translation services for remuneration of an overall value of more than EUR 100 000 without requesting or obtaining permission from the appointing authority. Secondly, between 2007 and 2021, the applicant was the sole owner of a company registered in Sofia (Bulgaria) and has been one of its co-owners since June 2021. Thirdly, between 2016 and 2018, the applicant was actively involved in two EU-funded projects on behalf of two organisations, for which he was remunerated. Furthermore, between 2014 and 2017, the applicant’s name was proposed for various roles in non-selected proposals under EU programmes. Fourthly, in 2016, he gave a presentation during an EU-funded information day in circumstances at least letting the audience believe that he was representing the Council. 11      In the second place, in order to determine the disciplinary penalty to be imposed, the appointing authority assessed the seriousness of the applicant’s misconduct by taking into account the circumstances of the case in the light of the criteria set out in Article 10 of Annex IX to the Staff Regulations. In that connection, the appointing authority noted that outside activities, some of which would not have been allowed even following a request to that effect by the applicant, were for a long duration, voluntary, carried out for significant remuneration, and exercised in circumstances at least letting the audience believe that the applicant was representing the Council. According to the appointing authority, those outside activities had a negative impact on the applicant’s work in his translation unit, as was noted in 2018 in an email by his head of unit and in his evaluation report, and, taken together, constituted a serious infringement, which undermined the reputation and interests of the General Secretariat of the Council. Furthermore, the appointing authority observed that the applicant’s misconduct was intentional, since it had reoccurred after the relevant rules had been explained to him and after the initiation of the procedure in relation to him, and had been repeated on several occasions. Moreover, the appointing authority, while taking note of the personal situation of the applicant which motivated the conduct in question and of his regrets, added that, throughout the procedure, he had changed his version of the events on multiple occasions. 12      On 17 October 2024, the applicant lodged a complaint pursuant to Article 90(2) of the Staff Regulations against the contested decision. 13      On 20 December 2024, the decision rejecting the complaint was adopted.  Forms of order sought 14      The applicant claims that the Court should: –        annul the contested decision; –        annul, in so far as necessary, the decision rejecting the complaint; –        order the Council to pay the costs. 15      The Council contends that the Court should: –        dismiss the action; –        order the applicant to pay the costs.  Law 16      Under Article 126 of the Rules of Procedure of the General Court, where an action is manifestly lacking any foundation in law, the General Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings. 17      In the present case, the Court, considering that it has sufficient information available to it from the material in the file, has decided to give a decision without taking further steps in the proceedings.  Subject matter of the action 18      By his second head of claim, the applicant seeks annulment, in so far as necessary, of the decision rejecting the complaint. 19      According to settled case-law, where a decision rejecting a complaint lacks any independent content, claims formally directed against that decision have the effect of bringing before the Court the act against which the complaint was submitted (see judgment of 14 December 2017, RL v Court of Justice of the European Union, T‑21/17, EU:T:2017:907, paragraph 26 and the case-law cited). 20      In the present case, the decision rejecting the complaint lacks any independent content, since it merely confirms the contested decision and clarifies the reasoning of the Council by responding to the criticisms that the applicant set out in his complaint. 21      Consequently, the action must be considered as being directed against the contested decision, the legality of which must be examined by also taking into consideration the reasoning in the decision rejecting the complaint (see, to that effect, judgment of 9 November 2022, QM v Europol, T‑164/21, EU:T:2022:695, paragraph 40 (not published) and the case-law cited).  Substance 22      In support of his action, the applicant relies, in essence, on a single plea in law, alleging infringement of the principle of proportionality, as enshrined in Article 10 of Annex IX to the Staff Regulations, and a manifest error of assessment. 23      In that connection, in the first place, as regards the aggravating circumstances relied on in the contested decision, the applicant submits that, in the light of the criterion laid down in Article 10(a) of Annex IX to the Staff Regulations, concerning the nature of the misconduct and the circumstances in which it occurred, there is no tangible evidence that his conduct at work was inconsistent, as stated in a note from the appointing authority of 15 April 2024, or that the criticisms of his professional performance resulted from his outside activities. The same is true in relation to the claims that the applicant carried out private translation work during his working hours. 24      In the second place, as regards the mitigating circumstances that the appointing authority should have taken into account in the contested decision, first, the applicant asserts that it was necessary to take into account the reasons for his misconduct. Even though he regrets his conduct, the applicant notes that that conduct was explained by his financial situation, his wife’s illness and the need to look after his children, which led him to lack discernment and to present various successive versions of the facts out of fear of a financial penalty. In that connection, the applicant submits that the duty of care is a relevant factor to be considered in determining the appropriate penalty. 25      Secondly, it is necessary to take into account the fact that, since 2018, as observed inter alia in the contested decision, his conduct at work has improved substantially and has been fully in line with what is expected of him. It is disproportionate to rely in the contested decision solely on the conduct of the applicant before 2018. 26      The applicant adds that he expressed his sincere regrets and pledged never to repeat the acts of which he had been accused. 27      In the third place, as regards the balance to be sought between aggravating and mitigating circumstances, the applicant argues that no causal link was established between his misconduct and any impact on his work. He reiterates his contention that he expressed his regrets. In addition, the penalty imposed on him further impacts his complicated financial situation. 28      The Council disputes the applicant’s arguments. 29      As a preliminary point, it should be recalled that the lawfulness of every disciplinary penalty requires that the truth of the facts alleged against the person concerned be established (see judgment of 5 June 2019, Bernaldo de Quirós v Commission, T‑273/18, not published, EU:T:2019:371, paragraph 122 and the case-law cited). 30      In the present case, it should be noted that the applicant does not dispute the truth of the facts alleged against him. In particular, he does not call into question the truth of the outside activities alleged against him in the contested decision nor the fact that he had not sought any permission in that connection despite his obligation to make a request to that effect. Moreover, it is apparent from the contested decision that the applicant acknowledged the facts. 31      The applicants contests, however, the proportionality of the disciplinary penalty imposed on him. 32      In that context, it should be recalled that, once the facts have been established, in view of the broad discretion enjoyed by the appointing authority in disciplinary matters, judicial review must be limited to ascertaining that there has been no manifest error of assessment and that there has been no misuse of powers (see judgment of 5 June 2019, Bernaldo de Quirós v Commission, T‑273/18, not published, EU:T:2019:371, paragraph 125 and the case-law cited). 33      Article 10 of Annex IX to the Staff Regulations provides: ‘The severity of the disciplinary penalties imposed shall be commensurate with the seriousness of the misconduct. To determine the seriousness of the misconduct and to decide upon the disciplinary penalty to be imposed, account shall be taken in particular of: (a)      the nature of the misconduct and the circumstances in which it occurred, (b)      the extent to which the misconduct adversely affects the integrity, reputation or interests of the institutions, (c)      the extent to which the misconduct involves intentional actions or negligence, (d)      the motives for the official’s misconduct, (e)      the official’s grade and seniority, (f)      the degree of the official’s personal responsibility, (g)      the level of the official’s duties and responsibilities, (h)      whether the misconduct involves repeated action or behaviour, (i)      the conduct of the official throughout the course of his career.’ 34      Article 10 of Annex IX to the Staff Regulations expressly requires the disciplinary penalties imposed to be commensurate with the seriousness of the misconduct, in accordance with the general requirement of proportionality governing actions of the EU institutions, as provided by Article 5(4) TEU and the general principle recognised on that point by the case-law (judgment of 1 June 2022, Cristescu v Commission, T‑754/20, not published, EU:T:2022:316, paragraph 217). 35      It is for the appointing authority to choose the appropriate penalty where the truth of the matters alleged against the official is established, and it is not open to the Courts of the European Union to criticise that choice unless the penalty imposed is disproportionate to the matters alleged against the person concerned (judgments of 1 April 2004, N v Commission, T‑198/02, EU:T:2004:101, paragraph 52 and the case-law cited, and of 21 February 2006, V v Commission, T‑200/03 and T‑313/03, EU:T:2006:57, paragraph 118). 36      To assess the proportionality of a disciplinary penalty in relation to the seriousness of the facts held against the official, the General Court must take into consideration the fact that the penalty to be imposed is to be determined on the basis of an overall assessment by the appointing authority of all the concrete facts and all the matters appertaining to each individual case, bearing in mind that the Staff Regulations do not specify any fixed relationship between the disciplinary penalties listed by them and the various types of misconduct on the part of officials, and do not state the extent to which aggravating or mitigating circumstances are to be taken into account in the choice of penalty. Consequently, the examination by the court of first instance is limited to a consideration of the question whether the weight attached by the appointing authority to such aggravating or mitigating circumstances is proportionate, given that during that examination it cannot substitute its own assessment for that of the appointing authority as regards that authority’s value judgments in this matter (judgment of 5 June 2019, Bernaldo de Quirós v Commission, T‑273/18, not published, EU:T:2019:371, paragraph 126). 37      Although the Staff Regulations do not specify any fixed relationship between the disciplinary penalties listed therein and the various types of misconduct on the part of officials, and do not state the extent to which aggravating or mitigating circumstances are to be taken into account in the choice of penalty, compliance with Article 47 of the Charter of Fundamental Rights of the European Union presupposes that a ‘penalty’ imposed by an administrative authority which does not itself satisfy the conditions laid down in that article must be subject to the subsequent review of a judicial body which has the power to assess fully the proportionality between the misconduct and the penalty (see, to that effect, judgment of 23 March 2022, OT v Parliament, T‑757/20, EU:T:2022:156, paragraph 173; see also, by analogy, judgment of 9 June 2021, DI v ECB, T‑514/19, EU:T:2021:332, paragraph 197 and the case-law cited). 38      It is in the light of those considerations that the single plea in law relied on by the applicant must be examined. 39      At the outset, it should be stated that, for the purpose of determining the disciplinary penalty imposed on the applicant, the appointing authority took into account in the contested decision all of the nine non-exhaustive criteria set out in Article 10 of Annex IX to the Staff Regulations and two other additional considerations, namely the regrets that had been expressed by the applicant and the fact that the applicant had on several occasions during the procedure changed his version of the facts. Of those aspects considered in the contested decision, the applicant disputes only the issue of the impact of his outside activities on his conduct and his performance at work and the taking into account of the mitigating circumstances in the present case. 40      In the first place, as regards the impact of the outside activities in question on the conduct of the applicant at work and on his professional performance, first, it should be noted that, as the appointing authority submitted in the decision rejecting the complaint, that element constituted only one of the elements in the light of which the nature of the misconduct and the circumstances in which it occurred – as laid down in Article 10(a) of Annex IX to the Staff Regulations – were examined in the contested decision. Therefore, even if that aspect had to be disregarded, that would not affect the global assessment undertaken by the appointing authority of the nature of the misconduct and the circumstances in which it occurred in relation to the determination of the penalty. Similarly, in the light of all the factors taken into account in the determination of the penalty, as summarised in paragraph 11 above, the applicant’s argument, even if it were to be proved, would also not in itself be capable of demonstrating that the penalty was disproportionate. 41      Thus, it should be noted that, as regards the criterion laid down in Article 10(a) of Annex IX to the Staff Regulations, concerning the nature of the misconduct and the circumstances in which it occurred, the contested decision is based on the repeated nature of the numerous outside activities of the applicant spanning several years, in which he engaged without permission, and which generated a significant income for him. Moreover, the applicant exploited his status as Council official to carry out those outside activities, some of which would not have been authorised even if he had requested permission to provide them. Those findings are confirmed by the report from OLAF, referred to in paragraph 5 above, and by the opinion of the Disciplinary Board, referred to in paragraph 7 above, from which it is apparent that the applicant changed his version of the facts on several occasions. Moreover, in the opinion of the Disciplinary Board, it is considered that the applicant’s conduct harmed the reputation and interests of the General Secretariat of the Council. 42      Secondly, the contested decision states that the nature of the applicant’s misconduct was such that it interfered with the tasks entrusted to him, contrary to the applicant’s arguments. It should be stated that that finding is a conclusion drawn from the consideration of the circumstances referred to in paragraph 41 above. 43      In that connection, in the decision rejecting the complaint, the appointing authority clarified inter alia that the applicant’s engagements, namely his outside activities, which consisted in particular in providing remunerated translation services without permission, and his activities within the Council, were closely connected to translation work. They were therefore of a similar nature. Accordingly, that resulted in a conflict of interest. The applicant does not dispute that analysis. 44      In the second place, as regards the taking into account of the two mitigating circumstances relied on by the applicant, first, concerning the motives of his misconduct, as he himself observes in the contested decision, the appointing authority took note of the motives which led to him committing the misconduct, namely financial and personal difficulties. However, the appointing authority concluded that a breach of duties as an EU official could not be justified by such difficulties. 45      In that context, it should be noted that that assessment complies with the case-law according to which, although the appointing authority must take into account the motive that led the applicant to commit the misconduct for the purposes of Article 10(d) of Annex IX of the Staff Regulations, the well-being of his or her family cannot, in itself, excuse the applicant’s behaviour (see, to that effect, judgment of 10 April 2024, AL v Council, T‑22/22, not published, under appeal, EU:T:2024:219, paragraph 142). 46      Furthermore, it should be noted that the applicant’s behaviour was deliberate and aimed at obtaining financial gain. The appointing authority also took into account the behaviour that was repeated over a long duration by the applicant who, as is apparent from the contested decision, produced various versions of the facts in order to justify his actions and expressed his regrets only at a very late stage of the procedure. In addition, the applicant does not call into question the fact that his performance before 2018 did not align with the standard of performance expected from him, which is also apparent from the severe warning given by his line manager in 2018. Furthermore, it is apparent from the contested decision that the applicant continued his outside activities even after he had received a warning. 47      Thus, the financial and personal difficulties relied on are not capable of mitigating the personal responsibility of the applicant, whose conduct – it is not disputed – infringed several provisions of the Staff Regulations and of Decision No 61/2015. 48      In addition, as regards the argument alleging an infringement of the duty of care, it should be recalled that, according to case-law, the duty of care reflects the balance of reciprocal rights and obligations in the relationship between the official authority and the civil servants. That balance implies, in particular, that when the relevant authority takes a decision concerning the position of an official, it should take into consideration all the factors capable of affecting its decision and that, when doing so, it should take into account not only the interests of the service but also, in particular, those of the official concerned. This latter obligation is also imposed on the administration by the principle of good administration enshrined in Article 41 of the Charter of Fundamental Rights (see judgment of 13 October 2021, IB v EUIPO, T‑22/20, EU:T:2021:689, paragraph 66 and the case-law cited). 49      It is also apparent from the case-law that the requirements of the administration’s duty of care cannot prevent the appointing authority from adopting the measures it deems necessary in the interests of the service (see judgment of 7 February 2019, RK v Council, T‑11/17, EU:T:2019:65, paragraph 190 and the case-law cited). 50      Although it is conceivable that the duty of care might, in certain circumstances, lead the appointing authority to reduce, or even cancel, the penalty envisaged, taking the official’s interests, including his or her state of health or the state of health of a member of his or her family or financial difficulties, into account nevertheless may not go as far as to deprive it of the possibility of imposing a penalty, even one so serious as removal from post (see, to that effect, judgment of 13 October 2021, IB v EUIPO, T‑22/20, EU:T:2021:689, paragraph 68 and the case-law cited). 51      In the present case, the penalty imposed is a downgrading by two grades in the same function group. In doing so, the appointing authority took into account the seriousness of the applicant’s misconduct. The penalty imposed was decided in view of the matters of fact set out in the contested decision, in particular the repeated and intentional nature of the applicant’s conduct, the activities spanning numerous years without permission, generating significant income and continuing even after having received a severe warning from his line manager. Furthermore, that penalty was imposed after taking into consideration, even if to disregard them, the mitigating circumstances relied on by the applicant, as is apparent from the summary of the contested decision in paragraph 11 above. The appointing authority therefore did not decide to impose the penalty in question without also taking into account the interests of the applicant. 52      It follows that the argument concerning the infringement of the duty of care must be rejected without there being any need to rule on its admissibility, raised by the Council. 53      Secondly, as regards the applicant’s conduct throughout the course of his career, it should be noted that the contested decision states that the conduct and performance of the applicant during his career were not beyond criticism and that, in 2018, he received a severe warning from his line manager in relation to his unexplained absences, to his failures to comply with his security and discipline obligations and to his personal translation activities, which is also reflected in his evaluation report for 2018. By contrast, the appointing authority took into consideration that, from 2018, the applicant’s conduct at work improved considerably and was in line with what is expected of an EU official. 54      Furthermore, in the decision rejecting the complaint, the appointing authority stated that, in accordance with Article 10 of Annex IX to the Staff Regulations, it was not necessary to establish a link between the outside activities and the conduct of the applicant at work during his career. The appointing authority adds that, notwithstanding the improvement of the applicant’s conduct at work from 2018 to a level in line with what was expected of an EU official, the fact remains that the applicant was still engaged in outside activities from 2018 to 2021, which prevents that aspect from being taken into account as a mitigating circumstance. 55      In that connection, in a case where there has been serious misconduct over a long period of time, such as here, it is not necessary to take account of the good conduct of the official being sanctioned by way of mitigating factor, with the result that any good conduct by the person concerned does not preclude the imposition of a severe penalty, such as downgrading by two grades, or even removal from post (see, to that effect, judgments of 6 October 2021, AV and AW v Parliament, T‑43/20, not published, EU:T:2021:666, paragraph 143 and the case-law cited, and of 19 April 2023, OQ v Commission, T‑162/22, not published, EU:T:2023:205, paragraph 55 and the case-law cited). Furthermore, in the present case, it is not disputed that the applicant’s performance improved only from 2018 onwards. 56      In addition, as regards the regrets expressed by the applicant, it suffices to note that the contested decision states that the appointing authority took note of them. Nevertheless, first, the appointing authority indicated that, throughout the procedure, the applicant had changed his version of the facts on several occasions and, secondly, as noted in paragraph 46 above, his apologies were presented at a very late stage of the procedure, namely 15 July 2024, only three days before the contested decision was adopted. 57      In the third place, as regards the balance between aggravating and mitigating circumstances, for the reasons set out in paragraphs 40, 41, 43, 55 and 56 above, the arguments concerning the alleged lack of a causal link between the applicant’s misconduct and the impact on his work and the regrets that he had expressed should be rejected. 58      As regards the additional impact of the imposed penalty on the applicant’s complicated financial situation, it should be noted that the appointing authority could have decided on a penalty with even more severe financial consequences, as permitted by Article 9 of Annex IX to the Staff Regulations. As is apparent from paragraph 51 above, the appointing authority nevertheless sought to impose a balanced penalty, in the light of all the facts in question. It should also be recalled that it is necessary to ensure the deterrent effect of the penalty (see, to that effect, judgment of 16 June 2021, KT v EIB, T‑415/20, not published, EU:T:2021:368, paragraph 137). 59      In the light of all the above considerations, it must be held, first, that the applicant has failed to demonstrate that the appointing authority committed a manifest error of assessment in the contested decision and, secondly, that there is nothing to suggest that the penalty imposed is disproportionate with regard to the misconduct alleged against him. 60      Consequently, the single plea in law must be rejected as manifestly unfounded and, accordingly, the action must be dismissed as manifestly lacking any foundation in law.  Costs 61      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 62      Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Council. On those grounds, THE GENERAL COURT (Third Chamber) hereby orders: 1.      The action is dismissed as manifestly lacking any foundation in law. 2.      IR is ordered to pay the costs. Luxembourg, 10 February 2026. V. Di Bucci   K. Kowalik-Bańczyk Registrar   President *      Language of the case: English.