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

13 December 2012

Case F‑63/09

Paola Donati

v

European Central Bank (ECB)

(Civil service — Staff of the ECB — Complaint of psychological harassment — Administrative inquiry — Access to the inquiry file — Communication of the file to the persons implicated in the complaint — Duty of confidentiality — Observance of the rights of the defence)

Application: Action brought under Article 36.2 of the Protocol on the Statute of the European System of Central Banks and the European Central Bank annexed to the EU Treaty and the FEU Treaty, whereby Ms Donati seeks, in essence, first, annulment of the decision of the Executive Board of the European Central Bank (ECB) not to uphold her complaint of psychological harassment and, second, an order that the ECB pay her damages.

Held: The action is dismissed. The applicant is to bear her own costs and is ordered to pay the costs incurred by the European Central Bank.

Summary

1.      Officials — Staff of the European Central Bank — Administration’s duty to have regard for the welfare of officials — Principle of sound administration — Scope

(Staff Regulations, Art. 24)

2.      Officials — Staff of the European Central Bank — Disciplinary measures — Report of an internal inquiry into alleged psychological harassment concluding that the allegations should be rejected — Decision of the Executive Board to conclude the inquiry and to take no further action on the complaint — Consequence — Failure to initiate disciplinary proceedings

(European Central Bank Staff Rules, Art. 8.3.2; European Central Bank, Circular No 1/2006)

3.      European Central Bank — Powers of the Executive Board — Implicit adoption of decisions — Lawfulness

(Protocol on the Statute of the European System of Central Banks and of the European Central Bank, Article 11(5))

4.      Officials — Staff of the European Central Bank — Internal administrative inquiries — Time-limit for the submission of observations — None — Duty to act within a reasonable time — Criteria for assessment

(European Central Bank, Circular No 1/2006)

5.      Actions brought by officials — Staff of the European Central Bank — Act adversely affecting an official — Concept — Preparatory act — Report drawn up following an internal administrative inquiry — Not included

(Staff Regulations, Art. 90(2); European Central Bank Staff Rules, Art. 8.3.2)

6.      Officials — Staff of the European Central Bank — Principles — Rights of the defence — Right to be assisted by a lawyer — Scope — Obligation to allow the complainant to be assisted in the context of an internal inquiry — None

7.      Officials — Staff of the European Central Bank — Rights and obligations — Internal inquiry in relation to alleged psychological harassment — Complainant’s right of access to the inquiry file — Limits — Administration’s obligation of confidentiality

(European Central Bank, Circular No 1/2006)

8.      Officials — Staff of the European Central Bank — Internal administrative inquiries — Obligation of the panel responsible for conducting the inquiry to call all witnesses proposed by the complainant — None

(European Central Bank, Circular No 1/2006)

9.      Officials — Staff of the European Central Bank — Internal administrative inquiries — Appointment of the members of the panel responsible for conducting the inquiry — Administration’s discretion — Scope — Judicial review — Limits

(European Central Bank, Circular No 1/2006)

10.    Officials — Officials — Psychological harassment — Concept — Application ratione temporis

(Staff Regulations, Art. 12a(3))

1.      The duty of the administration to have regard for the welfare of its officials, laid down in Article 24 of the Staff Regulations, reflects the balance of the reciprocal rights and obligations established by the Staff Regulations in the relationship between a public authority and civil servants. That duty and the principle of sound administration imply, in particular, that when the competent authority takes a decision concerning the situation of an official or a member of the staff, it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the official or member of staff concerned. That duty to have regard for the welfare of officials, and also observance of the principle of sound administration, are also imposed on the European Central Bank with respect to its staff.

(see para. 94)

See:

27 November 2008, F‑35/07 Klug v EMEA, para. 67; 11 July 2012, F‑85/10 AI v Court of Justice, para. 166

2.      It follows from Articles 2 and 6(14) of Administrative Circular No 1/2006 on internal administrative inquiries, adopted by the European Central Bank, read with Article 8.3.2 of the Staff Rules of the Bank, that where an internal administrative inquiry relating to alleged psychological harassment concludes that the complainant’s allegations of a breach of professional duties on the part of a member of the staff of the Bank are unfounded, the only course of action open to the competent authority is to conclude the internal administrative inquiry and take no further action on the complaint lodged.

Consequently, by adopting a formal decision whereby it takes note of the final inquiry report and decides to request the competent services to inform the persons concerned of its outcome, the Executive Board does in fact approve the content of the final inquiry report and also the consequences entailed by that content, namely the decision to conclude the administrative inquiry and to take no further action on the complaint. Such a decision necessarily means that the Executive Board has not adopted a decision for the purposes of initiating disciplinary proceedings. Accordingly, the complainant cannot take issue with the Executive Board for having implicitly adopted the decision not to initiate disciplinary proceedings, in so far as the non-initiation of such proceedings is the automatic consequence of any decision to take no further action on a complaint following an administrative inquiry.

In any event, in so far as the final inquiry report concludes that the complainant’s allegations are unfounded, the Executive Board’s approval of that report would be incompatible with the initiation of disciplinary proceedings against the person who was the subject of the administrative inquiry. Although Article 8.3.2 of the Staff Rules provides that the Executive Board may decide not to impose a disciplinary measure on the person who has been the subject of the administrative inquiry and therefore not to initiate disciplinary proceedings against him, even where he has been in breach of his professional duties, conversely, where no charge can be found against that person according to the final inquiry report, the Executive Board can only inform that person and take no further action.

(see paras 105-06, 111-12)

3.      Article 11.5 of the Protocol on the Statute of the European System of Central Banks and the European Central Bank does not lay down a specific procedure for the adoption of decisions of the Executive Board, but merely determines the number of votes held by each member of the Executive Board and the majority of votes required for the adoption of decisions. It cannot therefore be concluded from that provision that the Executive Board is precluded from adopting decisions implicitly.

(see para. 113)

4.      As regards the time-limit within which a member of the staff of the European Central Bank may submit observations on a draft inquiry report relating to alleged psychological harassment of which he claims to have been the victim, since Administrative Circular No 1/2006 on internal administrative inquiries, adopted by the Bank, does not fix a time-limit, the ‘reasonable time’ principle must be applied.

In that regard, whether or not the duration of an administrative procedure is reasonable must be determined by reference to the particular circumstances of the case and, in particular, its context, the various procedural stages which have been followed, the complexity of the case and its importance for the various parties involved. On the other hand, the reasonableness of that time-limit for submitting observations cannot be determined by reference to the professional availability of a third party.

(see paras 129, 131)

See:

22 October 1997, T‑213/95 and T‑18/96 SCK and FNK v Commission, para. 57; 17 September 2003, T‑137/01 Stadtsportverband Neuss v Commission, para. 125

5.      An act adversely affecting an official is one which produces binding legal effects which are capable of affecting, directly and immediately, the interests of the applicant by bringing about a distinct change in his legal position. Thus in staff cases measures whose purpose is to prepare a decision are not acts adversely affecting officials within the meaning of Article 90(2) of the Staff Regulations.

That applies to a report drawn up following an internal administrative inquiry of the European Central Bank, which makes findings of facts and circumstances relating to breach of professional duties by a member of staff of the Bank and which constitutes, at most, a measure whose purpose is to prepare the final decision as to whether or not to initiate a disciplinary inquiry.

(see paras 137-38)

See:

10 November 2009, F‑71/08 N v Parliament, para. 28 and the case-law cited; 15 September 2011, F‑6/10 Munch v OHIM, para. 32 and the case-law cited

6.      Since the inquiry procedure followed during an internal administrative inquiry of the European Central Bank is of an administrative and not a judicial nature, as the sole purpose of such in inquiry is to ascertain the facts, a member of the staff of the Bank with the status of complainant in the context of that inquiry cannot validly maintain that he has a right, forming part of his rights of defence, to be assisted by counsel during the inquiry proceedings. The fact that the staff member concerned could not be assisted by his counsel during an inquiry does not therefore mean that the inquiry or, consequently, the decision of the Executive Board of the Bank to conclude the inquiry is irregular.

(see paras 137, 139)

7.      In the administrative inquiry procedure carried out following a complaint of psychological harassment, the administration is required to balance two rights which may be inconsistent, namely the right of the person who is the subject of the complaint to exercise his rights of defence and the right of the complainant to have his complaint examined properly. This right of the complainant is reflected in a duty of confidentiality imposed on the administration, pursuant to which it is required to refrain from taking any step likely to jeopardise the results of the administrative inquiry.

In that regard, it follows from the wording of Article 7(3) of Administrative Circular No 1/2006 on internal administrative inquiries, adopted by the European Central Bank, that persons who are the subject of an administrative inquiry have a limited right of access to the documents submitted by the complainant in support of his complaint, this right of access being restricted to documents disclosing important facts. In limiting the right of access of persons subject to an administrative inquiry, that provision seeks to protect the rights of defence of those persons while ensuring that the administration complies with its obligation of confidentiality.

(see paras 171, 174)

8.      A panel responsible for conducting an internal administrative inquiry of the European Central Bank is not required to call all the witnesses proposed by a complainant in the context of the inquiry.

(see para. 187)

9.      In the context of the internal administrative inquiry procedure of the European Central Bank, the person leading the inquiry and the panel have a wide discretion in assessing the need to call persons external to the Bank in order to appoint them members of a panel or to consult them for their opinions. Review by the Courts of the European Union is limited to ascertaining whether the person leading the inquiry and the panel acted within reasonable limits and did not use their discretion in a manifestly incorrect manner.

(see para. 194)

See:

2 May 2007, F‑23/05 Giraudy v Commission, para. 136

10.    The interpretation of the concept of psychological harassment in Article 12a(3) of the Staff Regulations applies to conduct that took place on or after the date of entry into force of the provision, namely 1 May 2004.

(see para. 212)

See:

9 December 2008, F‑52/05 Q v Commission, paras 132 to 133 and 135