JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(First Chamber)

26 February 2013

Case F‑124/10

Vassilliki Labiri

v

European Economic and Social Committee (EESC)

(Civil service — Duty to provide assistance — Article 12a of the Staff Regulations — Psychological harassment — Administrative inquiry)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Ms Labiri seeks annulment of the decision of 18 January 2010 of the Secretary-General of the European Economic and Social Committee (EESC) not to lay any charge against her head of unit and to terminate without further action the administrative inquiry initiated jointly by the EESC and the Committee of the Regions of the European Union following her complaint of psychological harassment.

Held: The decision of 18 January 2010 is annulled. The EESC is to bear its own costs and is ordered to pay the costs incurred by the applicant.

Summary

1.      Actions brought by officials — Act adversely affecting an official — Concept — Decision closing without taking any further action an administrative inquiry opened jointly by two separate bodies of the European Union following a complaint of psychological harassment — Decision adopted by the appointing authority not competent vis-à-vis the applicant — Included

(Staff Regulations, Arts 90 and 91; Annex IX)

2.      Actions brought by officials — Interest in bringing proceedings — Action brought by an official claiming to be the victim of psychological harassment against the refusal of a request for assistance — Maintenance of the interest in bringing proceedings

(Staff Regulations, Art. 91)

3.      Officials — Psychological harassment — Concept — Conduct designed to discredit the person concerned or to impair his working conditions — Requirement that the conduct be repetitive — Requirement that the conduct be intentional — Scope — No requirement of malicious intent on the part of the harasser

(Staff Regulations, Art. 12a(3))

1.      Only acts or decisions producing binding legal consequences likely directly and immediately to affect the applicant’s interests by significantly changing his legal situation may be the subject of an action for annulment. As regards an administrative inquiry procedure initiated jointly by two separate bodies of the European Union following a complaint of psychological harassment, the decision of the appointing authority of the institution to which the presumed harasser belongs, which is not competent vis-à-vis the applicant personally and in particular as regards situations of harassment, to terminate that procedure without further action is an act adversely affecting the applicant.

It follows from Article 3 of Annex IX to the Staff Regulations that the appointing authority competent to decide on any disciplinary measures is the appointing authority of the official concerned, that is to say, the official referred to in the inquiry report, and not the appointing authority of the applicant.

Furthermore, the appointing authorities of two separate bodies of the European Union may jointly initiate and carry out an administrative inquiry as provided for in Annex IX to the Staff Regulations. As from the time when those two authorities do not adopt a final joint decision but each takes an independent and separate decision, it is to the appointing authority that first notified to the official, the alleged victim of psychological harassment, the act adversely affecting him that the official concerned, who is in the service of both bodies, must submit his complaint and it is against the body to which that appointing authority belongs that he must, where appropriate, bring an action before the Tribunal.

(see paras 42, 51-53)

See:

21 January 1987, 204/85 Stroghili v Court of Auditors, para. 6

13 December 2006, F‑47/06 Aimi and Others v Commission, para. 58; 29 November 2007, F‑52/06 Pimlott v Europol, para. 48

2.      An action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in the annulment of the contested measure. In order for such an interest to be present, the annulment of the measure must of itself be capable of having legal consequences or, to put it differently, the action must be liable, if successful, to procure an advantage for the party who has brought it.

As regards an issue as serious as psychological harassment, it must be accepted that an official or other staff member who claims to be the victim of such harassment and brings judicial proceedings against the institution’s refusal to examine the substance of a request for help, which the institution must do in order to decide to initiate an inquiry or take another appropriate measure, retains, in principle, the legitimate interest required by the case-law as a condition of the admissibility of an application. That also applies where the contested decision did not give satisfaction to the official who complained of harassment.

(see paras 56-57)

See:

24 June 1986, 53/85 AKZO Chemie and AZKO Chemie UK v Commission, para. 21

14 September 1995, T‑480/93 and T‑483/93 Antillean Rice Mills and Others v Commission, paras 59 and 60 and the case-law cited; 20 June 2001, T‑188/99 Euroalliages v Commission, para. 26; 28 September 2004, T‑310/00 MCI v Commission, para. 44

30 September 2010, F‑43/09 van Heuckelom v Europol, para. 31; 8 February 2011, F‑95/09 Skareby v Commission, para. 25; 16 May 2012, Skareby v Commission, para. 31

3.      Article 12a(3) of the Staff Regulations does not make the malicious intent of the alleged harasser a necessary element of the characterisation of psychological harassment. That provision defines psychological harassment as ‘improper conduct’ which requires, in order to be established, that two cumulative conditions be satisfied. The first condition relates to the existence of physical behaviour, spoken or written language, gestures or other acts which take place ‘over a period’ and are ‘repetitive or systematic’ and which are ‘intentional’. The second condition, separated from the first by the preposition ‘and’, requires that such physical behaviour, spoken or written language, gestures or other acts have the effect of ‘undermin[ing] the personality, dignity or physical or psychological integrity of any person’.

By virtue of the fact that the adjective ‘intentional’ applies to the first condition, and not to the second, it is possible to draw a twofold conclusion. First, the physical behaviour, spoken or written language, gestures or other acts referred to in Article 12a(3) of the Staff Regulations must be intentional in character, which excludes from the scope of that provision reprehensible conduct which arises accidentally. Second, it is not, on the other hand, a requirement that such physical behaviour, spoken or written language, gestures or other acts were committed with the intention of undermining the personality, dignity or physical or psychological integrity of a person. In other words, there can be psychological harassment within the meaning of Article 12a(3) of the Staff Regulations without the harasser’s having intended, by his reprehensible conduct, to discredit the victim or deliberately impair the latter’s working conditions. It is sufficient that such reprehensible conduct, provided that it was committed intentionally, led objectively to such consequences. In that regard, the characterisation of harassment is subject to the condition that it assumes sufficient objective reality, in the sense that an impartial and reasonable observer, with normal sensitivity and placed in the same conditions, would regard it as excessive and open to criticism.

A contrary interpretation of Article 12a(3) of the Staff Regulations would result in that provision being deprived of any useful effect, on account of the difficulty of proving the malicious intent of the perpetrator of an act of psychological harassment. While there are cases where such intent can be inferred naturally from the reprehensible conduct of the person responsible for it, the fact is that such cases are rare and that, in the majority of situations, the alleged harasser is careful to avoid any conduct that could indicate his intention to discredit his victim or to impair the latter’s working conditions.

(see paras 65-68)

See:

9 December 2008, F‑52/05 Q v Commission, paras 133 to 136; Skareby v Commission, para. 65