JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(Third Chamber)

13 September 2011


Case F‑100/09


Christos Michail

v

European Commission

(Civil service – Official – Res judicata – Duty to provide assistance – Article 24 of the Staff Regulations – Psychological harassment)

Application:      brought under Articles 236 EC and 152 EA, whereby Mr Michail seeks, first, annulment of the Commission’s decision of 9 March 2009 rejecting his request for assistance on the ground of psychological harassment and, second, an order that the Commission pay him the sum of EUR 30 000 by way of compensation for the non-pecuniary harm which he has suffered.

Held:      The action is dismissed. Mr Michail is ordered to bear his own costs and to pay the Commission’s costs.

Summary

1.      Procedure – Res judicata – Scope

2.      Officials – Psychological harassment – Concept – Conduct designed to discredit the person concerned or to impair his working conditions – Requirement that the conduct be repeated – Requirement that the conduct be intentional – Scope

(Staff Regulations, Art. 12a(3))

3.      Officials – Organisation of departments – Assignment of staff – Administration’s discretion – Scope – Judicial review – Limits

(Staff Regulations, Art. 7)

4.      Officials – Organisation of departments – Assignment of staff – Reassignment – Compliance with the rule on correspondence between grade and post – Scope

(Staff Regulations, Arts 5 and 7)

1.      An action is held to be inadmissible on account of the res judicata attaching to an earlier judgment which settled a dispute between the same parties, had the same subject-matter and had been based on the same cause of action. The act annulment of which is sought constitutes an essential factor which enables the subject-matter of an action to be characterised.

However, the fact that the actions were directed against separate decisions which the administration formally adopted is not sufficient to support the conclusion that there is no identity of subject-matter, where those decisions have substantially the same content and are based on the same grounds. Furthermore, even if the complaints raised in support of an action coincide in part with those relied on in earlier proceedings, the second action is not a repetition of the first, but a new dispute in that it is also based on other grounds of fact and of law.

(see paras 29-31)

See:

19 September 1985, 172/83 and 226/83 Hoogovens Groep v Commission, para. 9; 27 October 1987, 146/85 and 431/85 Diezler and Others v ESC, paras 14 to 16

5 June 1996, T‑162/94 NMB and Others v Commission, paras 37 and 38; 12 December 1996, T‑177/94 and T‑377/94 Altmann and Others v Commission, para. 52

25 June 2010, T‑66/01 Imperial Chemical Industries v Commission, para. 197

2.      Article 12a(3) of the Staff Regulations, which entered into force on 1 May 2004, defines psychological harassment as ‘improper conduct’ which, in order to be established, requires 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’, which suggests that psychological harassment must be a process that occurs over time and presumes the existence of repetitive or continual conduct, which is ‘intentional’. The second condition, which is separated from the first by the conjunction ‘and’, requires that such physical behaviour, spoken or written language, gestures or other acts have the effect of undermining 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 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 there having been any intention on the part of the harasser, by his conduct, to discredit the victim or deliberately impair the latter’s working conditions. It is sufficient that his conduct, provided that it was voluntary, objectively entailed such consequences.

Furthermore, the Civil Service Tribunal observed, in its judgment of 9 December 2008 in Case F‑52/05 Q v Commission, that in order to be characterised as psychological harassment, conduct must be objectively intentional in character and that an applicant, regardless of the subjective perception which he may have had of the facts alleged, must put forward a body of evidence proving that he was subjected to conduct aimed, objectively, at discrediting him or at deliberately impairing his working conditions. However, the Civil Service Tribunal also observed that that solution had been reached in cases brought in respect of conduct that pre-dated the entry into force of Article 12a(3) of the Staff Regulations, the analysis of which specifically led it to modify that solution.

(see paras 55, 56)

See:

9 December 2008, F‑52/05 Q v Commission, paras 135 and 140; 9 March 2010, F‑26/09 N v Parliament, para. 72

3.      The institutions enjoy a wide discretion in the organisation of their departments to suit the tasks entrusted to them and to assign staff available to them in the light of those tasks, on condition, however, that the staff are assigned in the interests of the service and in conformity with the rule on correspondence between grade and post. Having regard to that wide discretion, review by the EU Courts, covering compliance with the condition relating to the interests of the service, must be confined to the question whether the appointing authority remained within reasonable and uncontestable bounds and did not use its discretion in a manifestly incorrect way.

(see paras 58, 59)

See:

23 June 1984, 69/83 Lux v Court of Auditors, para. 17; 7 March 1990, C‑116/88 and C‑149/88 Hecq v Commission, para. 11

16 December 1993, T‑80/92 Turner v Commission, para. 53; 12 December 2000, T‑223/99 Dejaiffe v OHIM, para. 53; 21 September 2004, T‑325/02 Soubies v Commission, para. 50

4 June 2009, F‑52/08 Plasa v Commission, para. 77

4.      The fact that an official has very high qualities does not mean that he cannot be reassigned, since, while it is true that the administration has every interest in assigning an official to a post corresponding to his competences and his aspirations, other considerations may lead it, subject to compliance with the rule on correspondence between grade and post, to assign an official to another post. Furthermore, while it follows from Articles 5 and 7 of the Staff Regulations that an official has the right that the duties assigned to him should, on the whole, be consistent with the post corresponding to his grade in the hierarchy, those provisions are not infringed by any reduction in the official’s tasks; they are infringed only where those new tasks appear, on the whole, to be significantly below those corresponding to his grade and post, regard being had to their nature, their importance and their degree.

(see paras 64, 65)

See:

23 March 1988, 19/87 Hecq v Commission, para. 8

7 February 2007, T‑118/04 and T‑134/04 Caló v Commission, para. 99