Language of document : ECLI:EU:F:2014:243

JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

11 November 2014

Case F‑52/11

Carlo De Nicola

v

European Investment Bank (EIB)

(Civil service — EIB staff — Psychological harassment — Inquiry procedure — Report of the Committee of Inquiry — Incorrect definition of psychological harassment — Decision of the President of the EIB not to follow up the complaint — Annulment — Action for damages)

Application:      under Article 270 TFEU, in which Mr De Nicola essentially seeks, first, annulment of the decision of 1 September 2010 by which the President of the European Investment Bank (EIB) rejected his complaint alleging psychological and ‘organisational’ harassment, and, second, an order that the EIB compensate for the harm he considers he has suffered as a result of that harassment.

Held:      The decision of 1 September 2010 by which the President of the European Investment Bank rejected Mr De Nicola’s complaint alleging psychological harassment is annulled. The European Investment Bank is ordered to pay Mr De Nicola the sum of EUR 3 000. The remainder of the action is dismissed. The European Investment Bank is to bear its own costs and is ordered to pay the costs incurred by Mr De Nicola.

Summary

1.      Actions brought by officials — Staff of the European Investment Bank — Act adversely affecting an official — Definition — Preparatory act — Opinion of the Committee of Inquiry on harassment

(Staff Code of Conduct of the European Investment Bank, Art. 3.6; Policy on Dignity at Work of the European Investment Bank, para. 5.5)

2.      Officials — Staff of the European Investment Bank — Psychological harassment — Definition — Demeaning of self-respect and confidence — No requirement that harasser should have malicious intent

(Staff Code of Conduct of the European Investment Bank, Art. 3.6.1; Policy on Dignity at Work of the European Investment Bank, Art. 2.1)

3.      Judicial proceedings — Application initiating proceedings — Formal requirements — Clear and precise statement of the pleas in law relied on

(Rules of Procedure of the Civil Service Tribunal, Art. 35(1)(e))

1.      Only measures which give rise to binding legal effects capable of directly and immediately affecting the applicant’s interests by significantly altering his legal position constitute acts adversely affecting him. In the case of acts or decisions adopted by a procedure involving several stages, and particularly where they are the culmination of an internal procedure, it is in principle only those measures which definitively determine the position of the administration upon the conclusion of that procedure which are open to challenge and not intermediate measures whose purpose is to prepare the final decision. Acts preparatory to a decision do not adversely affect officials and an applicant may rely on defects in acts prior to the decision and closely linked to it only in the context of an action challenging the decision adopted at the end of the procedure.

The opinion of the Committee of Inquiry of the European Investment Bank which is competent under the Policy on Dignity at Work constitutes an act preparatory to the final decision adopted by the President of the EIB. Since the Committee’s opinion is consequently not open to challenge as such, claims for its annulment must be rejected as inadmissible.

However, the unlawfulness of the opinion of the Committee of Inquiry may be relied on in support of claims for annulment of the final decision adopted by the President of the EIB. It follows from the internal rules entitled ‘Policy on Dignity at Work’, adopted by the European Investment Bank and referred to in Article 3.6 of the EIB’s Staff Code of Conduct, that the opinion of the Committee of Inquiry is a substantive procedural requirement and that, consequently, failure to comply with that requirement as a result of factual or procedural irregularities is a defect which renders the decision of the President of the EIB adopted on the basis of that opinion unlawful.

(see paras 142, 144, 145)

See:

judgment in D v EIB, T‑275/02, EU:T:2005:81, paras 43 to 46 and the case-law cited therein

judgment in Donati v ECB, F‑63/09, EU:F:2012:193, para. 139

2.      Under Article 3.6.1 of the European Investment Bank’s Code of Conduct, psychological harassment is defined as repeatedly hostile or tasteless remarks, acts or behaviour over a fairly long period by one or more members of staff towards another member of staff. The EIB’s Policy on Dignity at Work states that whether or not the conduct in question is intentional is irrelevant. The decisive principle is that harassment and bullying is unwelcome and unacceptable behaviour which demeans the self-respect and confidence of the recipient.

It follows that, according to the EIB’s internal rules, there is psychological harassment giving rise to an obligation for the EIB to provide assistance where the harasser’s remarks, acts or behaviour have resulted, on an objective view, and thus through their content, in demeaning the self-respect and confidence of the recipient within the EIB.

An opinion of the Committee of Inquiry on psychological harassment which requires that conduct must be intentional in order to constitute psychological harassment is not consistent with those binding internal rules.

(see paras 143, 149, 150, 154)

See:

judgment in CG v EIB, F‑103/11, EU:F:2014:185, para. 69

3.      Under Article 35(1)(e) of the Rules of Procedure of the Civil Service Tribunal the application must contain a statement of the pleas and arguments of fact and law on which it is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Civil Service Tribunal to rule on the application, if necessary without any further information. In order to guarantee legal certainty and the sound administration of justice it is necessary, in order for a plea to be admissible, that the essential matters of law and fact relied on are stated coherently and intelligibly in the application itself.

It is important to add that the main role of the lawyer, as a legal representative, is to ensure that the heads of claim of the application are based on sufficiently intelligible and coherent legal arguments, specifically in view of the fact that the written stage of the procedure before the Civil Service Tribunal comprises, in principle, only one exchange of written pleadings.

(see paras 161, 162)

See:

judgment in AH v Commission, F‑76/09, EU:F:2011:12, paras 29 and 31 and the case-law cited therein