JUDGMENT OF THE GENERAL COURT (Appeal Chamber)
23 September 2015
Case T‑114/13 P
Maria Concetta Cerafogli
v
European Central Bank (ECB)
(Appeal — ECB Staff — Complaint of discrimination and psychological harassment — Decision of the ECB to close the administrative inquiry initiated following the complaint — Refusal of access to evidence during the administrative procedure — Rejection of a request for an order to produce evidence during the judicial proceedings — Right to effective judicial protection — Error of law)
Appeal: against the judgment of the European Union Civil Service Tribunal (Third Chamber) of 12 December 2012 in Cerafogli v ECB (F‑43/10, ECR-SC, EU:F:2012:184), seeking to have that judgment set aside.
Held: The judgment of the European Union Civil Service Tribunal (Third Chamber) of 12 December 2012 in Cerafogli v ECB (F‑43/10) is set aside. The case is referred back to the Civil Service Tribunal. The costs are reserved.
Summary
1. EU law — Principles — Rights of defence — Observance thereof in the context of administrative proceedings — Scope
2. EU law — Principles — Rights of defence — Adversarial principle — Scope
3. Officials — Staff of the European Central Bank — Rights and obligations — Internal inquiry into alleged psychological harassment — Complainant’s right to be heard and right of access to the inquiry file — Limits
4. Judicial proceedings — Measures of organisation of procedure — Request for production of documents — Request for information contained in an inquiry report drawn up following a complaint of discrimination and psychological harassment — Obligation of the Union judicature to weigh the applicant’s interest in properly exercising his right to an effective judicial remedy against the disadvantages likely to result from the disclosure of elements of that report — Scope
(Charter of Fundamental Rights of the European Union, Art. 47; Rules of Procedure of the Civil Service Tribunal, Art. 47)
5. Appeal — Grounds of appeal — Review by the General Court of the Civil Service Tribunal’s refusal to order measures of organisation of procedure or inquiry — Scope
(Art. 256(2) TFEU; Statute of the Court of Justice, Annex I, Art. 11)
1. See the text of the decision.
(see paras 32-34)
See:
Judgments of 18 December 2008 in Sopropé, C‑349/07, ECR, EU:C:2008:746, para. 36; 10 September 2013 in G. and R., C‑383/13 PPU, ECR, EU:C:2013:533, para. 32, and 22 October 2013 in Sabou, C‑276/12, ECR, EU:C:2013:678, para. 38
2. See the text of the decision.
(see para. 35)
See:
Judgment of 2 December 2009 in Commission v Ireland and Others, C‑89/08 P, ECR, EU:C:2009:742, para. 50
3. The situation of a complainant, in the context of a complaint of psychological harassment, cannot be equated with that of the person against whom the complaint has been made, and the procedural rights of the person accused of harassment are distinct from the more limited rights, in the context of the administrative procedure, of a complainant who considers himself to be a victim of harassment.
(see para. 40)
4. The right to an effective judicial remedy entails that the complainant whose complaint of psychological harassment is rejected may challenge before the Courts of the European Union the act adversely affecting him in its entirety, including, if applicable, by arguing that the inquiry report does not correctly reflect the testimony on which that rejection is based. That right may imply that the complainant, in order to effectively make known his arguments, should be put in a position to examine the extent to which the inquiry report matches the minutes of the testimony on which that report is based or, at least, request the Civil Service Tribunal to examine that evidence under the conditions of confidentiality set out in Article 47 of the Rules of Procedure of that Tribunal. It is for the Civil Service Tribunal, in accordance with Article 47(2) of its Rules of Procedure, to weigh the appellant’s interest in obtaining the evidence necessary to allow him to properly exercise his right to an effective judicial remedy, on the one hand, against the disadvantages that the disclosure of such evidence is likely to give rise to, on the other.
(see para. 43)
See:
Judgment of 21 June 2012 in IFAW Internationaler Tierschutz-Fonds v Commission, C‑135/11 P, ECR, EU:C:2012:376, para. 73
5. The Civil Service Tribunal has, in principle, discretionary power to appraise the usefulness of ordering the production of the evidence required to resolve the disputes before it. Whether or not the evidence before it is sufficient is a matter to be appraised by it alone and is not subject to review by the General Court on appeal, except where that evidence has been distorted or the inaccuracy of the findings of the court of first instance is apparent from the documents in the case-file.
However, where, during the administrative procedure, an applicant has, correctly, not been put in a position to access evidence that is decisive in the outcome of that procedure, that applicant cannot be required to establish, to the requisite standard, factual errors which can only be determined upon examination of evidence to which he has been denied access. On the contrary, if the applicant demonstrates even a prima facie case in support of his claims, it is for the Civil Service Tribunal to require production of the evidence necessary to assess the merits of that argument.
(see paras 44, 45)
See:
Judgment of 16 July 2009 in Der Grüne Punkt — Duales System Deutschland v Commission, C‑385/07 P, ECR, EU:C:2009:456, para. 163 and the case-law cited therein