JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Second Chamber)
11 July 2013
Case F‑46/11
Marie Tzirani
v
European Commission
(Civil service — Psychological harassment — Concept of harassment — Request for assistance — Administrative investigation into the alleged facts of harassment — Decision to close the administrative investigation without taking further action — Reasonable time for completion of an administrative investigation — Obligation to state reasons for the decision closing the administrative investigation — Scope)
Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby the applicant seeks, first, annulment of the decision of the European Commission to take no action on her request for assistance and, secondly, an order that the Commission pay compensation for the damage allegedly sustained.
Held: The decision of the European Commission of 7 June 2010 is annulled in that it takes no further action on Ms Tzirani’s request for assistance for psychological harassment alleged to have been suffered from 1 October 2004. The European Commission is ordered to pay Ms Tzirani the sum of EUR 6 000. The action is dismissed for the remainder. The European Commission is ordered to bear its own costs and to pay the costs incurred by Ms Tzirani.
Summary
1. Officials — Rights and obligations — Internal investigation relating to alleged psychological harassment — Complainant’s right of access to the file relating to the investigation — Limits — Obligation for the administration to maintain confidentiality
2. Officials — Psychological harassment — Concept — Conduct intended to discredit the person concerned or to impair his working conditions — Requirement that the conduct be intentional — Scope — No requirement of malicious intent on the part of the harasser
(Staff Regulations, Art. 12a(3))
3. Officials — Psychological harassment — Concept — Administrative decisions and disagreements with the administration on questions concerning the organisation of departments — Not included
(Staff Regulations, Art. 12a)
4. Officials — Psychological harassment — Concept — Conduct of a hierarchical superior aimed at several persons — Included
5. Officials — Psychological harassment — Concept — Conduct of a hierarchical superior consisting in giving direct instructions to the staff under the responsibility of the head of unit without warning him and in sending messages containing overt criticisms of him — Included
(Staff Regulations, Art. 12a)
6. Officials — Obligation of administration to provide assistance — Scope
(Staff Regulations, Art. 24)
7. Officials — Obligation of administration to provide assistance — Scope — Administration’s duty to examine complaints relating to harassment — Requirements for solicitude and rapidity — Absence — Consequences
(Charter of Fundamental Rights of the European Union, Art. 41(1); (Staff Regulations, Art. 24)
8. Officials — Disciplinary measures — Investigation preparatory to the initiation of disciplinary proceedings — Administration’s discretion — Scope
(Staff Regulations, Annex IX)
9. Officials — Obligation of administration to provide assistance — Implementation in relation to psychological harassment — Decision to close without further action an administrative investigation opened in response to a request for assistance — Obligation to communicate to the complainant the final investigation report or the minutes of hearings held in that connection — No obligation
(Staff Regulations, Arts 24 and 25, second para.)
10. Officials — Decision to close without further action an administrative investigation opened in response to a request for assistance in respect of psychological harassment — Obligation to state reasons — Scope
(Staff Regulations, Arts 24 and 25, second para.)
1. In the context of a complaint of psychological harassment, it is necessary, except in special circumstances, to guarantee the confidentiality of witness statements collected, including during the contentious proceedings, since the prospect of a possible removal of that confidentiality at the stage of contentious proceedings may impede the holding of neutral and objective inquiries with the unreserved cooperation of the members of staff called as witnesses.
(see para. 41)
See:
12 December 2012, F‑43/10 Cerafogli v ECB, para. 222, under appeal before the General Court of the European Union, Case T‑114/13 P
2. Article 12a(3) of the Staff Regulations does not make malicious intent on the part of the alleged harasser a necessary criterion for classification as psychological harassment.
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 conduct, to discredit the victim or deliberately impair the latter’s working conditions. It is sufficient that such conduct, provided that it was committed intentionally, led objectively to such consequences. 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.
In that regard, the fact that an official has a difficult, or even conflictual, relationship with colleagues or hierarchical superiors does not by itself constitute proof of psychological harassment. Even negative comments made to an official do not undermine his personality, dignity or physical or psychological integrity, where they are made in measured terms and are not based on unfair accusations devoid of any link with objective facts.
(see paras 52, 54, 56, 71, 74)
See:
16 April 2008, T‑486/04 Michail v Commission, para. 61
9 December 2008, F‑52/05 Q v Commission, paras 133 and 135; 10 November 2009, F‑93/08 N v Parliament, para. 93; 24 February 2010, F‑2/09 Menghi v ENISA, para. 110; 16 May 2012, F‑42/10 Skareby v Commission, para. 65; 26 February 2013, F‑124/10 Labiri v EESC, paras 65 and 67
12 July 2011, T‑80/09 P Commission v Q
3. In view of the wide discretion enjoyed by the institutions in the organisation of their services, neither administrative decisions, even if they are difficult to accept, nor disagreements with the administration over questions relating to the organisation of the services can by themselves prove the existence of psychological harassment. The mere fact that the administration did not follow the official’s suggestions or act on his requests for more staff does not in itself demonstrate a failure to listen, let alone psychological harassment, on the part of his superiors, but at the most the existence of differences of opinion.
(see para. 82)
4. In the context of a complaint alleging psychological harassment, it cannot be maintained that certain conduct of a superior does not constitute psychological harassment on the ground that it is not specifically directed at one person, but at an indefinite number of other persons. Such conduct can only aggravate the infringement of Article 12a of the Staff Regulations, the first paragraph of which prohibits officials from engaging in any form of psychological harassment.
(see para. 89)
5. Conduct on the part of a superior consisting in giving direct and repeated instructions to staff for whom a head of unit had responsibility without notifying the latter, where it is not justified by particular circumstances, is likely to cause a head of unit to lose credibility in the eyes of his staff and may therefore be classified as psychological harassment. The same applies where a hierarchical superior sends messages containing over criticism of an official, copying in several colleagues without there being any reason dictated by the interests of the service which might justify such a practice. Although criticism of a subordinate’s work must be allowed, only messages which do not contain any defamatory or malicious wording and which are sent to the person concerned alone or are copied to others where the interest of the service so justifies come within the normal context of a hierarchical relationship.
(see paras 94-95, 97-98)
See:
25 October 2007, T‑154/05 Lo Giudice v Commission, paras. 104 and 105
Skareby v Commission, para. 80
6. Under the duty to provide assistance imposed upon it by Article 24 of the Staff Regulations, the administration, when faced with an incident which is incompatible with the good order and tranquillity of the service, must intervene with all the necessary vigour and respond with the rapidity and solicitude required by the circumstances of the case with a view to establishing the facts and taking the appropriate action in full knowledge of the facts. To that end, it is sufficient that an official who is seeking the protection of his institution provide at least some evidence of the reality of attacks of which he claims to have been the victim. When such evidence is provided, the institution concerned is under an obligation to take the necessary measures, in particular to carrying out an administrative investigation in order to establish the facts which gave rise to the complaint and, where appropriate, by adopting provisional distancing measures in order to protect, as a precautionary measure the health and safety of the official presumed to be the victim of one of the acts referred to in that provision.
However, a plea alleging breach of the duty to provide assistance owing to the failure to take precautionary measures cannot usefully be relied upon in support of a claim for the annulment of a decision to close without further action an investigation into harassment to which a member of staff considers he has been subjected, since such an infringement of Article 24 of the Staff Regulations would not have any effect on the legality of that decision.
(see paras 108-110)
See:
17 July 2012, F‑54/11 BG v Ombudsman, para. 83, under appeal before the General Court of the European Union, Case T‑406/12 P; Cerafogli v ECB, para., 210
Commission v Q, paras 84 and 92 and the case-law cited
7. The obligation to conduct administrative procedures within a reasonable time is a general principle of European Union law which is enforced by the European Union Courts and which is set forth, as an element of the right to good administration, in Article 41(1) of the Charter of Fundamental Rights of the European Union. Where the institutions have to deal with an issue as serious as psychological harassment, they have an obligation to respond to an official who makes a request under Article 24 of the Staff Regulations with rapidity and solicitude.
However, the fact that, in breach of its duty to have regard for the welfare of officials, the appointing authority did not respond with the necessary rapidity to a request for assistance under Article 24 of the Staff Regulations does not, in itself, affect the lawfulness of the decision to close without further action an investigation into harassment initiated on the basis of that request for assistance. If such a decision were to be annulled solely on the ground that it was late, the fresh decision that would be required to replace it could not in any case be less late than the annulled decision.
(see paras 116-117, 119)
See:
11 April 2006, T‑394/03 Angeletti v Commission, para. 162
18 May 2009, F‑138/06 and F‑37/08 Meister v OHIM, para. 76; 11 May 2011, F‑53/09, J v Commission, para. 113
6 December 2012, T‑390/10 P Füller-Tomlinson v Parliament, para. 115
8. The authority responsible for an administrative investigation, which is required to investigate the files submitted to it in a proportionate manner, has a wide discretion as to the conduct of the investigation and in particular as regards the assessment of the quality and the usefulness of the cooperation provided by witnesses.
(see para. 124)
See:
Skareby v Commission, para. 38
9. As regards a decision closing without further action an administrative investigation relating to alleged psychological harassment initiated in response to a request for assistance submitted under Article 24 of the Staff Regulations, the second paragraph of Article 25 does not impose any express obligation to send to the complainant either the final report of the administrative investigation or the records of the interviews conducted during that investigation.
However, provided the interests of the persons against whom proceedings have been brought and of persons who have been witnesses in the investigations are protected, no provision of the Staff Regulations prevents the final investigation report being sent to a third party who has a legitimate interest in knowing details of it, as is the case of a person who submitted a request under Article 24 of the Staff Regulations.
(see paras 132-133)
See:
Lo Giudice v Commission, para. 163
Cerafogli v ECB, para. 108
10. A narrow interpretation of the obligation imposed by the second paragraph of Article 25 of the Staff Regulations is necessary where the decision adversely affecting the official is a decision of the appointing authority to close, without taking any action, an investigation originating from a request for assistance concerning allegations of psychological harassment.
Unlike most of administrative measures which may adversely affect an official, a decision concerning a request for assistance is adopted in a specific factual context. First, such a context may already have lasted for a number of months, or indeed years. In addition, acts of psychological harassment may have extremely destructive effects on the victim’s state of health. Also, a situation of harassment, if it is established, does not mainly affect the financial interests or career of the official, cases which the institution can rapidly rectify by the adoption of a measure or the payment of a sum of money to the official concerned, but damages the personality, dignity or physical or psychological integrity of the victim, damage which cannot be made up for entirely by financial compensation. Lastly, whether or not the allegations are well founded, they are perceived as such by the complainant and, under the duty to have regard for the welfare of officials, the institution is required to state its reasons for its rejection of a request for assistance as fully as possible, without the complainant also having to wait for the response to a complaint in order to ascertain those reasons, a response which the institution might even decide not to give.
A decision which in itself does not provide the applicant with at least some of the reasons does not meet the requirements imposed by the second paragraph of Article 25 of the Staff Regulations. A contrary solution would have the effect of requiring an official who has made a request for assistance under Article 24 of the Staff Regulations in respect of acts of psychological harassment to lodge a complaint in order to ascertain the grounds for the decision to close the administrative investigation without taking action in accordance with the requirements of the second paragraph of Article 25 of the Staff Regulations. It follows that, in the case of a decision closing an administrative investigation initiated in response to a request for assistance under Article 24 of the Staff Regulations in respect of acts of psychological harassment, institutions cannot validly provide the person concerned with all the grounds for the first time in the decision rejecting a complaint without infringing their obligation to state reasons under the second paragraph of Article 25 of the Staff Regulations. However, such a solution must not prejudice the possibility that the institutions may, at the time of the decision rejecting the complaint, make significant clarifications concerning the reasons given by the administration, or that the Tribunal may take into consideration those clarifications when examining a plea challenging the legality of the decision.
Furthermore, although a statement of reasons in the forms of a reference to a report or opinion, which itself states reasons and is communicated, is permissible, it is necessary for such a report or opinion to actually be communicated to the person concerned together with the act adversely affecting him.
(see paras 141-142, 152, 165-167)
See:
Lo Giudice v Commission, paras 163 and 164
Skareby v Commission, paras 32 and 53; Cerafogli v ECB, para. 108 and the case-law cited