JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

16 May 2012

Case F‑42/10

Carina Skareby

v

European Commission

(Civil service — Duty to provide assistance — Articles 12a and 24 of the Staff Regulations — Psychological harassment by a hierarchical superior)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Ms Skareby seeks annulment of the decision of the Commission of 23 July 2009 rejecting her request for assistance in respect of a complaint of psychological harassment and, if necessary, annulment of the decision of the appointing authority of 19 February 2010 rejecting her complaint.

Held: The action is dismissed. The applicant is ordered to pay, in addition to her own costs, three quarters of the costs of the Commission. The Commission is to pay one quarter of its costs.

Summary

1.      Officials — Actions — Interest in bringing proceedings — Action by an official who is the supposed victim of psychological harassment against a refusal to grant a request for assistance — Interest in bringing proceedings retained even though facts date far back in time and there is no risk of their being repeated or of a claim for compensation

(Staff Regulations, Art. 91)

2.      Officials — Disciplinary measures — Investigation prior to the initiation of disciplinary proceedings — Administration’s discretion — Scope

(Staff Regulations, Annex IX)

3.      Officials — Psychological harassment — Definition — Conduct aimed at discrediting the person concerned or at impairing his working conditions — Requirement that the conduct be repetitive in character — Requirement that the conduct be intentional — Scope — No requirement that the harasser had malicious intent

(Staff Regulations, Art. 12(3))

4.      Officials — Decision adversely affecting an official — Obligation to state reasons — Scope — Inadequate statement of reasons — Rectification during the proceedings before the Court — Conditions

(Staff Regulations, Art. 25, second para.)

1.      In so serious a matter as psychological harassment it must be accepted that an official who is the supposed victim of such harassment, who brings an action against the institution’s refusal to consider the merits of a request for assistance, retains as a rule a legitimate interest as required by case-law as a condition for the admissibility of an application, even if he is not seeking compensation for any damage resulting from the alleged harassment, or initiation of disciplinary proceedings against the alleged perpetrator of the harassment, and even if the harassment is deemed to have ceased a number of years previously.

That approach is called for because of the very seriousness of psychological harassment, conduct which may have extremely destructive effects on a person’s state of health. A staff member who allegedly suffers psychological harassment retains an interest in bringing proceedings, irrespective of whether such harassment persists or whether the official or agent in question makes, intends to make or is merely entitled to make other claims, in particular for compensation, in respect of the psychological harassment. A finding by the administration that psychological harassment has occurred is, in itself, likely to have a beneficial effect in the therapeutic process of recovery of an individual who has been harassed.

(see paras 29, 31-32)

See:

30 November 2009, F‑80/08 Wenig v Commission, para. 35

2.      The administration has broad discretionary power with regard to the conduct of the administrative inquiries conferred on it. In particular, as the administration’s resources are limited, it is required to investigate the files that are submitted to it in a proportionate manner, that is, in particular, in a manner that allows it to allocate to each case a fair share of the time available. Furthermore, the administration also has a wide margin of discretion to assess the quality and usefulness of the cooperation provided by the witnesses.

(see para. 38)

See:

13 January 2010, F‑124/05 and F‑96/06 A and G v Commission, para. 173

3.      Article 12a(3) of the Staff Regulations does not in any way make the malicious intent of the alleged harasser a necessary criterion for classification as 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. Firstly, the physical behaviour, spoken or written language, gestures or other acts referred to by 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. Secondly, 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.

To be classified as harassment, the reprehensible conduct must have led objectively to consequences that discredit the victim or impair his working conditions. As the conduct in question must, under Article 12a(3) of the Staff Regulations, be improper, it follows that the classification of harassment is subject to the condition of its being objectively sufficiently real, in the sense that an impartial and reasonable observer, of normal sensitivity and in the same situation, would consider it to be excessive and open to criticism.

(see paras 63, 65)

See:

9 March 2010, F‑26/09 N v Parliament, para. 72

4.      It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons for a measure meets the requirements of the second subparagraph of Article 25 of the Treaty must be assessed with regard not only to its wording, but also to its context and to all the legal rules governing the matter in question.

Moreover, an inadequate statement of grounds may be remedied by additional information provided even during the proceedings if the official concerned already had at his disposal before bringing his action information constituting the beginnings of a statement of grounds.

(see paras 74-75)

See:

15 September 2005, T‑132/03 Casini v Commission, para. 36; 11 December 2007, T‑66/05 Sack v Commission, para. 65

1 December 2010, F‑89/09 Gagalis v Council, para. 67; 13 September 2011, F‑4/10 Nastvogel v Council, para. 66