JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

11 July 2013

Case F‑111/10

AN

v

European Commission

(Civil service — Officials — Rights and obligations of officials — Facts which may give rise to a presumption of an illegal activity harmful to the interests of the Union — Duty of an official to inform his superiors or OLAF — Request for protection under Article 22a of the Staff Regulations — Psychological harassment)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby AN seeks, in essence, annulment of the decision of the European Commission rejecting her request for the deletion of certain remarks made in two notes addressed to her by her superiors, the grant of the protection provided for in Article 22a(3) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and the opening of an administrative inquiry into the reprisals of which she claims to have been a victim. The applicant also seeks damages for the harm which she claims to have sustained.

Held:      The action is dismissed. AN is to bear her own costs and is ordered to pay the costs incurred by the European Commission.

Summary

1.      Actions brought by officials — Prior administrative complaint — Concept — Classification falling within the discretion of the Tribunal

(Staff Regulations, Art. 90(2))

2.      Actions brought by officials — Prior administrative complaint — Existence of an act adversely affecting the official — Obligation to submit the complaint directly

(Staff Regulations, Art. 90(1) and (2))

3.      Officials — Rights and obligations — Freedom of expression — Disclosure of facts giving rise to a presumption of the existence of an unlawful activity or a sufficiently serious breach — Protection against disciplinary proceedings — Scope

(Staff Regulations, Art. 22a(3); Commission Decision 1999/396, Art. 2)

4.      Officials — Psychological harassment — Concept — Negative observations addressed to an official — Not included — Conditions

(Staff Regulations, Art. 12a)

5.      Officials — Psychological harassment — Concept — Rumours — Not included

(Staff Regulations, Art. 12a)

1.      The legal classification of a letter from an official as a ‘request’ or a ‘complaint’ is within the discretion of the Tribunal alone and does not depend on the intention of the parties. In that regard, a letter whereby an official demonstrates his intention to challenge a decision is a complaint within the meaning of Article 90(2) of the Staff Regulations and not a request.

(see para. 62)

See:

30 April 1998, T‑205/95 Cordiale v Parliament, paras 34 and 38

15 February 2011, F‑76/09 AH v Commission, para. 38 and the case-law cited

2.      Where the appointing authority has taken a decision which constitutes an act adversely affecting an official, the latter, where he intends to seek annulment, amendment or withdrawal of that act, must not submit a request, within the meaning of Article 90(1) of the Staff Regulations, but must use the complaint procedure laid down in Article 90(2) of the Staff Regulations.

(see para. 77)

See:

30 April 2009, F‑65/07 Aayhan and Others v Parliament, para. 40

3.      The protection provided for in Article 22a(3) of the Staff Regulations, which is also referred to in Article 2 of Decision 1999/396 concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities’ interests, is granted, without any formality, to officials who have provided information about facts which give rise to a presumption of the existence of illegal activity, purely because he has provided such information.

However, that protection does not offer the official protection against any decision capable of adversely affecting him but only against decisions connected with the accusations made by him.

(see paras 86, 90)

See:

24 February 2010, F‑2/09 Menghi v ENISA, para. 139

4.      Negative observations addressed to an official do not undermine his personality, dignity or integrity in so far as they are formulated in measured terms and it is not apparent from the case-file that they are based on abusive accusations unconnected with objective facts.

(see para. 98)

See:

Menghi v ENISA, para. 110

5.      A rumour, even if it proves to be well founded, cannot be regarded as proof of psychological harassment of an official or of the existence of any reprehensible conduct attributable to the administration.

(see para. 100)

See:

8 June 1995, T‑496/93 Allo v Commission, para. 48