Provisional text
JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
13 July 2017 (*)
(Civil service — EIB staff — Sexual harassment — Investigation procedure — Investigation Panel’s report — Decision of the President of the EIB not to act on the complaint — No unlawful conduct by the EIB — Liability)
In Case T‑607/16,
OZ, residing in Luxembourg (Luxembourg), represented by B. Maréchal, lawyer,
applicant,
v
European Investment Bank (EIB), represented by T. Gilliams, E. Raimond and G. Faedo, acting as Agents, and by A. Dal Ferro, lawyer,
defendant,
APPLICATION under Article 270 TFEU seeking, first, annulment of the report of the Investigation Panel of the EIB of 14 September 2015 and the decision of the President of the EIB of 16 October 2015 not to act on the complaint of sexual harassment filed by the applicant and, second, compensation for the damage which the applicant claims to have suffered following that report and that decision,
THE GENERAL COURT (Sixth Chamber),
composed of G. Berardis, President, S. Papasavvas (Rapporteur) and O. Spineanu‑Matei, Judges,
Registrar: E. Coulon,
having regard to the written part of the procedure,
gives the following
Judgment
Background to the dispute
1 On 1 December 2008 the applicant, OZ, was recruited by the European Investment Bank (EIB) [confidential]. (1)
2 At the end of 2009 Mr F joined the [confidential] Directorate as a supervisor of staff (including the applicant) responsible for [confidential] projects.
3 On 16 September 2012 the applicant moved to another post [confidential].
4 In January 2014 the applicant stated to her Head of Division that her transfer to another post was connected with the sexual harassment which she considered she had experienced at the hands of Mr F since 2011.
5 On 20 May 2015 the applicant filed a complaint with the Director-General of the Personnel Directorate of the EIB in which she claimed to have been sexually harassed by Mr F.
6 On 18 June 2015 the Director-General of the Personnel Directorate informed the applicant that a formal investigation procedure (‘the investigation procedure’) had been initiated pursuant to the ‘Policy on dignity at work’ internal rules (‘the policy on dignity at work’).
7 On 19 June 2015 the President of the EIB approved the proposed composition of the Investigation Panel responsible for conducting the investigation procedure (‘the Investigation Panel’).
8 On 26 June 2015 the Investigation Panel was officially appointed and the applicant was informed that hearings would take place on 20 July 2015.
9 On 17 September 2015 the Investigation Panel submitted its report (‘the Investigation Panel’s report’) to the President of the EIB.
10 On 16 October 2015 the President of the EIB decided to reject the complaint filed by the applicant (‘the decision of the President of the EIB’).
11 Following the decision of the President of the EIB, clarification was sought from the Investigation Panel, which submitted its final observations on 12 January 2016.
12 On 25 January 2016 the applicant lodged a request for conciliation pursuant to Article 41 of the Staff Regulations of the EIB.
13 On 29 June 2016, following the findings of the Conciliation Board of 22 April 2016, the President of the EIB stated that the conciliation procedure had failed.
Procedure and forms of order sought
14 By application lodged at the Registry of the Civil Service Tribunal on 22 July 2016, the applicant brought the present action. The case was registered as Case F‑37/16.
15 Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), the present case was transferred to the General Court as it found the case on 31 August 2016. It was registered as Case T‑607/16 and assigned to the Sixth Chamber.
16 The General Court (Sixth Chamber) decided, pursuant to Article 106(3) of the Rules of Procedure of the General Court, to rule on the action without an oral part of the procedure.
17 The applicant claims that the Court should:
– annul the decision of the President of the EIB and the Investigation Panel’s report;
– order that certain elements should be deleted from the Investigation Panel’s report;
– order the EIB to pay her the sum of EUR 20 000 as compensation for the non-material damage suffered;
– order the EIB to pay her the sum of EUR 977 (including VAT) and a provisional amount of EUR 5 850 to cover the medical fees incurred following that damage;
– order the EIB to reimburse the expenses incurred in the present proceedings, corresponding to the sum of EUR 35 100 (including VAT);
– remit the present case to the EIB in order that the Dignity at Work procedure may be reopened;
– remit the present case to the EIB in order that a new decision may be drafted by its President using wording specified by the applicant.
18 The EIB contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
Admissibility
Admissibility of the fifth head of claim
19 By this head of claim, the applicant claims that the Court should order the reimbursement of the costs incurred in the present proceedings, corresponding to the sum of EUR 35 100 (including VAT).
20 First, it should be noted that the taxation of costs is subject to a procedure governed by Article 170 of the Rules of Procedure, separate from the decision regarding the allocation of costs referred to in Article 133 of those rules. Second, the costs cannot be taxed until after the judgment or order which closes the proceedings (see order of 6 September 2016, Vanbreda Risk & Benefits v Commission, T‑199/14, not published, EU:T:2016:532, paragraph 16 and the case-law cited).
21 Accordingly, the present head of claim is inadmissible and must be set aside.
Admissibility of the second, sixth and seventh heads of claim
22 By these heads of claim, the applicant claims that the Court should order that certain elements be deleted from the Investigation Panel’s report and should remit the present case to the EIB in order that, first, the investigation procedure may be reopened and, second, a new decision may be drafted by the President of the EIB using wording specified by her.
23 It must be pointed out that, by these heads of claim, the applicant claims, in essence, that the Court should issue directions to the EIB. However, according to settled case-law, the Courts of the European Union cannot, without encroaching on the prerogatives of the administrative authority, issue directions to an institution or body of the European Union. That principle not only renders inadmissible, in an action for annulment, claims that the Court should order the defendant institution or body to take the measures necessary to comply with a judgment ordering annulment, but also applies, in principle, in proceedings where the Court has unlimited jurisdiction, such as an action for damages in which an applicant claims that the Court should order the defendant institution or body to take specific measures in order to provide compensation for the alleged damage (see order of 17 December 2008, Portela v Commission, T‑137/07, not published, EU:T:2008:589, paragraph 46 and the case-law cited).
24 Accordingly, the present heads of claim are inadmissible and must be set aside.
Substance
Claim for damages
25 The applicant argues that the EIB incurs non-contractual liability by reason of unlawful acts committed during the investigation procedure, in particular the failure to respect her right to a fair hearing and the inclusion of certain elements and comments in the Investigation Panel’s report and the decision of the President of the EIB. The applicant considers that that unlawful conduct is the cause of the damage she has suffered and consequently claims that the Court should order the EIB to pay her, first, the sum of EUR 20 000 as compensation for her non-material damage and, second, the sum of EUR 977 (including VAT) and a provisional amount of EUR 5 850 to cover the medical fees incurred following that damage.
26 In that regard, it should be borne in mind that, in accordance with settled case-law, whether the EIB incurs non-contractual liability for unlawful conduct is subject to a number of conditions being met, namely the conduct complained of must be unlawful, actual harm must have been suffered and there must be a causal link between the alleged conduct and the damage purportedly suffered (judgment of 1 June 1994, Commission v Brazzelli Lualdi and Others, C‑136/92 P, EU:C:1994:211, paragraph 42).
27 Where one of those conditions is not met, the action must be dismissed in its entirety without it being necessary to examine the other conditions for non-contractual liability (judgment of 9 September 1999, Lucaccioni v Commission, C‑257/98 P, EU:C:1999:402, paragraph 14). Furthermore, the Courts of the European Union are not required to examine those conditions in a particular order (judgment of 9 September 1999, Lucaccioni v Commission, C‑257/98 P, EU:C:1999:402, paragraph 13).
28 It is therefore necessary to ascertain whether the conduct complained of by the applicant and described in paragraph 25 above is such that the EIB incurs non-contractual liability.
– Liability of the EIB for alleged unlawful acts committed during the investigation procedure, including a failure to respect the applicant’s right to a fair hearing
29 The applicant submits that several requirements of the investigation procedure were not complied with, which constitutes unlawful conduct for the purposes of the case-law referred to in paragraph 26 above. She adds that the unlawful acts committed during that procedure constitute infringements of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’), and Article 47 of the Charter of Fundamental Rights of the European Union. The applicant concludes that those irregularities constitute wrongful conduct capable of rendering the EIB liable.
30 In that regard, it is apparent from settled case-law, applicable mutatis mutandis to disputes between the EIB and its members of staff, that, in the case of a claim for damages brought by an official or staff member, the European Union can be held liable only if a number of conditions are satisfied, namely the conduct imputed to the institutions is unlawful, actual harm has been suffered, and there is a causal link between that conduct and the damage allegedly suffered (see judgment of 12 July 2012, Commission v Nanopoulos, T‑308/10 P, EU:T:2012:370, paragraph 102 and the case-law cited).
31 In addition, according to settled case-law also applicable mutatis mutandis to disputes between the EIB and its members of staff, proceedings relating to the civil service under Article 270 TFEU and Articles 90 and 91 of the Staff Regulations of Officials of the European Union, including proceedings seeking compensation for damage caused to an official or other member of staff, are subject to particular rules that form a special category by reference to those deriving from the general principles governing the non-contractual liability of the Union in the context of Article 268 TFEU and the second paragraph of Article 340 TFEU. It is apparent from the Staff Regulations that, unlike any other individual, an official or servant of the European Union is connected to the institution to which he belongs by a legal employment relationship involving a balance of specific reciprocal rights and obligations, which is reflected in the institution’s duty to have regard for the welfare of the person concerned. That balance is essentially intended to preserve the relationship of trust which must exist between the institutions and their officials in order to guarantee to citizens the effective performance of tasks in the public interest entrusted to the institutions. It follows that, when acting as an employer, the European Union is subject to greater liability, reflected in its obligation to compensate for damage caused to its staff by any unlawful act committed in its capacity as employer (see judgment of 12 July 2012, Commission v Nanopoulos, T‑308/10 P, EU:T:2012:370, paragraph 103 and the case-law cited).
32 In the first place, the applicant submits that several requirements of the investigation procedure were not complied with.
33 In that regard, it appears that the applicant is invoking the infringement of the policy on dignity at work referred to in Article 3.6 of the EIB’s Staff Code of Conduct, adopted by the EIB on 18 November 2003, rather than the infringement of Article 6 ECHR or Article 47 of the Charter of Fundamental Rights. In that regard, it should be borne in mind that the policy on dignity at work constitutes internal rules of the EIB which are legally binding in nature (judgment of 11 November 2014, De Nicola v EIB, F‑52/11, EU:F:2014:243, paragraph 143).
34 First, the applicant claims that the beginning of the investigation was set 61 calendar days after the filing of the complaint instead of the 30 calendar days laid down by the policy on dignity at work.
35 In that regard, it should be noted that it is apparent from point 4.d, under the heading ‘the procedure’, of the policy on dignity at work that, once a complaint has been received, the Director-General of the Personnel Directorate must indicate to both parties that the investigation will begin within 30 calendar days of the official filing of the complaint with that Director-General and that they will be notified of the date, time and location of their individual hearing, their right to be represented or accompanied, and the composition of the Investigation Panel.
36 In the present case, it is apparent from the documents in the case-file that, first, on 26 May 2015, the applicant was informed that the Director-General of the Personnel Directorate had received her complaint on 21 May 2015 and, second, on 18 June 2015, that Director-General informed her of the initiation of the investigation procedure, stating that the hearing would begin 30 calendar days after all documents had been received.
37 The applicant states that, if the view is taken that the investigation begins with the first hearings conducted by the Investigation Panel, the procedural requirement was not complied with, since the hearings began on 20 July 2015, that is, more than 60 calendar days after her complaint was filed. The EIB contends that the 30 calendar day period is purely indicative and must be calculated from the date on which it may reasonably be considered that a complainant has definitively provided all the information at his or her disposal that is objectively necessary for the completion of the investigation.
38 In that regard, it must be pointed out that the President of the EIB approved the proposed composition of the Investigation Panel on 19 June 2015, that is to say, before the expiry of the 30 calendar day period referred to in paragraph 35 above. Such an event is a significant indication that an investigation has been initiated.
39 In addition, it is apparent from the documents in the case-file that the Investigation Panel was officially appointed on 26 June 2015 and that, by letter of the same day, the applicant was informed that the hearings would be held on 20 July 2015.
40 In those circumstances, it must be considered that the EIB acted with due diligence and that the applicant was invited to attend a hearing within a reasonable time in relation to the filing of her complaint. Accordingly, the fact that she was so invited a few days after the expiry of the 30 calendar day period is irrelevant in the present case.
41 Second, the applicant submits that, although it was stated in the communication from the Personnel Directorate acknowledging receipt of her complaint that only a summary of her complaint would be sent to Mr F, she was informed by telephone by a member of that directorate that that complaint would be sent to him in its entirety. However, since the applicant states that a staff representative intervened by email on 27 May 2015 in order to prevent such a mistake being made, no unlawful conduct can be imputed to the EIB in that regard.
42 Third, the applicant asserts that the complaint was not dealt with in strict confidence, in so far as witnesses were invited to attend the Investigation Panel via the electronic messaging software Microsoft Outlook without the privacy settings having been activated.
43 In that regard, while the applicant acknowledges, without criticising it, that such a practice is normal within the EIB in the course of the services’ daily activities, she seems, by contrast, to be criticising its being applied to the investigation procedure. However, the applicant, on the one hand, does not invoke any evidence capable of establishing that the messaging privacy settings were not activated in respect of the witness statements received by the Investigation Panel and, on the other, does not establish that that fact has led to her complaint being more widely disseminated than would have been necessary. That argument must therefore be set aside.
44 Fourth, the applicant claims to have received the decision of the President of the EIB 43 days after the Investigation Panel’s recommendation was sent to him and not within five working days as laid down by the policy on dignity at work.
45 In that regard, it is apparent from the final paragraph, headed ‘Decision by the President [of the EIB]’, of the policy on dignity at work that both parties must be informed in writing of the decision of the President of the EIB within five working days of the Investigation Panel’s recommendations being sent to him.
46 In the present case, it is apparent from the documents in the case-file that the Investigation Panel’s report, dated 14 September 2015, was sent to the President of the EIB on 17 September 2015 and that the applicant was made aware of his decision at a meeting with management on 27 October 2015. It is therefore clear that the applicant was informed of the decision of the President of the EIB after a much longer period than that laid down by the policy on dignity at work.
47 That said, it should also be noted that that provision of the policy on dignity at work sets out a rule of sound administration, the purpose of which is to avoid, in the interests both of the administrative authority and of staff, any unjustified delay by the President of the EIB in adopting the final decision terminating an investigation procedure. Accordingly, the EIB is under an obligation to conduct that procedure with due diligence and to ensure that each procedural measure is taken within a reasonable period following the previous measure. Failure to observe such a period, which can be assessed only in the light of the specific circumstances of the case, may result in the measure adopted after the expiry of the period prescribed being declared void (see, by analogy, judgment of 10 June 2004, François v Commission, T‑307/01, EU:T:2004:180, paragraph 47 and the case-law cited).
48 It should be borne in mind that, in the present case, the EIB management asked the Investigation Panel, by email of 22 September 2015, to clarify certain recommendations made in the latter’s report and in particular those made in the last paragraph. The EIB management was seeking to ascertain whether certain statements made in the Investigation Panel’s report meant that the applicant had acted maliciously since, in that event, the EIB would have been obliged to view the case from a disciplinary perspective. That clarification was therefore particularly important if the investigation procedure was to lead to any disciplinary proceedings. The Investigation Panel replied to that question by email of 25 September 2015 in which it stated that it could not rule out the possibility of the applicant’s having hoped, consciously or subconsciously, that her complaint might help her to account to her superiors for her numerous absences in recent years and her lower performance compared to previous years. The Investigation Panel added that it could not rule out the possibility that the applicant had secretly hoped that her complaint might secure her some kind of personal advantage.
49 It follows from all the foregoing that both the Investigation Panel’s report and the later statements made by that panel might leave room for some doubts as to the applicant’s real intentions and, accordingly, may explain the period of 1 month and 10 days between the sending of the Investigation Panel’s recommendations to the President of the EIB and the applicant’s being informed of the decision of the President of the EIB. Accordingly, in the specific circumstances of the present case, the applicant was informed in reasonable time. Therefore, no unlawful conduct can be imputed to the EIB in that regard.
50 In the second place, the applicant submits that the irregularities in the investigation procedure constitute infringements of Article 6 ECHR and Article 47 of the Charter of Fundamental Rights.
51 In that regard, the applicant asserts that her arguments were disclosed to Mr F, but that she did not receive either his statements or statements of witnesses. According to the applicant, that constitutes an infringement of the adversarial principle and the principle of equality of arms. She adds that certain persons she wished to call to give evidence before the Investigation Panel were, for various reasons, unable to do so, without her being given prior notice. She also claims that the Investigation Panel rejected all the medical reports and certificates which she had produced. Last, she submits that the members of the Investigation Panel had neither the independence nor the skills required by the policy on dignity at work.
52 First, regarding the submission alleging infringement of the adversarial principle and the principle of equality of arms, it must be made clear that the situation of a complainant in 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 administrative procedure, of an alleged victim of harassment. Nonetheless, the latter may rely, by virtue of the principle of sound administration, on the right to be heard regarding the facts concerning him or her, in so far as a decision refusing to act on a complaint of alleged harassment is liable to entail serious consequences, as psychological harassment can have extremely destructive effects on the victim’s state of health, and any recognition by the administrative authority of the existence of psychological harassment is, in itself, liable to have a beneficial effect in the harassed person’s therapeutic process of recovery (judgment of 16 December 2015, De Loecker v EEAS, F‑34/15, EU:F:2015:153, paragraph 43). Since the effects on the victim of sexual harassment and psychological harassment are comparable, those principles apply mutatis mutandis to cases of sexual harassment.
53 It must be stated that, in an administrative investigation procedure carried out following a complaint of harassment, the administrative authority is required to balance two rights which may be at odds with each other, namely the right of the person who is the subject of the complaint to exercise his or her rights of defence and the right of the complainant to have his or her complaint examined properly. That right of the complainant is reflected in the administrative authority’s duty of confidentiality, by virtue of which it must refrain from any step that could jeopardise the results of the administrative investigation (judgment of 13 December 2012, Donati v ECB, F‑63/09, EU:F:2012:193, paragraph 171).
54 In the present case, it is common ground that, as indeed the policy on dignity at work provides, the Investigation Panel heard the applicant, the witnesses called by her, Mr F, and then the witnesses called by him. It should be made clear in that regard that that policy does not provide for the disclosure to the complainant of statements of witnesses or of the person accused of harassment. Indeed, contrary to the applicant’s assertions, the administrative investigation procedure following a complaint of harassment is governed by specific considerations, recalled in paragraphs 52 and 53 above, which are not identical to those governing the conduct of a trial. That being the case, the Investigation Panel, which, moreover, complied with the rules regarding the conduct of hearings laid down by the policy on dignity at work, did not act unlawfully by not disclosing to the applicant the statements of Mr F and of various witnesses.
55 Second, regarding the submissions that, in the first place, the Investigation Panel, without giving her prior notice, did not hear all the individuals whom the applicant wished to call to give evidence and, in the second place, that panel rejected all the medical reports and certificates which she had produced, it should be borne in mind that the authority responsible for an administrative investigation, which is required to investigate the cases that are submitted to it in a proportionate manner, has broad discretion with regard to the conduct of the investigation and in particular with regard to assessing the quality and usefulness of the assistance provided by witnesses (see judgment of 11 June 2013, Tzirani v Commission, F‑46/11, EU:F:2013:115, paragraph 124 and the case-law cited).
56 Furthermore, the Investigation Panel was in no way required to invite all the witnesses proposed by the applicant in the course of the investigation (see, to that effect, judgment of 13 December 2012, Donati v ECB, F‑63/09, EU:F:2012:193, paragraph 187).
57 It follows from the foregoing that the fact that the Investigation Panel did not hear all the witnesses summoned by the applicant cannot render the investigation procedure unlawful. In addition, the Investigation Panel was not required to give prior notice to the applicant of that fact. Accordingly, the fact that the Investigation Panel did not give such notice to the applicant is also irrelevant.
58 Last, regarding the submission that the Investigation Panel rejected all the medical reports and certificates produced by the applicant, it should be observed that it is not apparent from the documents in the case-file that that panel did reject those documents, which were present in the investigation file. Furthermore, it should be noted that, while those documents could inform that panel as to the applicant’s state of health, they could not be used to determine whether harassment had taken place, as they were not drawn up by persons who had witnessed the acts at issue invoked by the applicant. Therefore, no unlawful conduct can be imputed to the EIB in that regard.
59 Third, the applicant submits that the members of the Investigation Panel, including its Chairman, had neither the independence nor the skills required by the policy on dignity at work.
60 In that regard, it is sufficient to note that the policy on dignity at work provides that each of the parties has the right to submit reasoned objections to the presence of a member of the Investigation Panel. That policy states that the first objection will be accepted without discussion and that the President of the EIB will rule on any subsequent objection.
61 In the present case, the applicant was informed of the composition of the Investigation Panel on 26 June 2015, but made no objection prior to the hearings which began on 20 July 2015. In any event, it is apparent from the policy on dignity at work that the Investigation Panel must consist, first, of one person who is familiar with the internal functioning of the EIB and, second, of two persons who have the necessary knowledge and experience in matters of bullying and harassment. In that regard, the fact that the Chairman of the Investigation Panel was known to be the lawyer designated by the EIB to provide legal advice to its staff is not sufficient ground for considering that he was not guaranteed to be independent. Also, assuming it were to be established, the fact that that Chairman did not specialise in cases of harassment is irrelevant since, as was required by the policy on dignity at work, he was familiar with the internal functioning of the EIB. In addition, the applicant does not adduce even prima facie evidence to establish that the other two members of the Investigation Panel did not have the necessary knowledge and experience in matters of bullying and harassment. In those circumstances, no unlawful conduct can be imputed to the EIB in that regard.
62 It follows from all the foregoing that the investigation procedure is not vitiated by irregularities, in particular, by any irregularity relating to a failure to respect the applicant’s right to a fair hearing, and that the EIB cannot be held to be liable in that regard.
– Liability of the EIB as regards the inclusion of elements and comments in the Investigation Panel’s report and the decision of the President of the EIB
63 The applicant asserts that she has suffered non-material damage as a result of the inclusion in the Investigation Panel’s report of certain comments directly connected with her private life, her health, and her professional attitude. She submits that those harmful comments appear to be irrelevant, false, unnecessary and outside the scope of the policy on dignity at work. She also emphasises that the EIB had the opportunity, during the conciliation procedure provided for in Article 41 of its Staff Regulations, to delete certain elements from both that report and the decision of the President of the EIB, but that it did not take that opportunity.
64 The applicant therefore submits that, by including certain elements in the Investigation Panel’s report and the decision of its President, the EIB committed a wrongful act, thereby incurring liability, and that that wrongful act is the cause of her non-material damage.
65 It is necessary to examine whether the applicant establishes that, by its conduct, the EIB acted unlawfully for the purposes of the case-law cited in paragraph 31 above.
66 In the first place, it should be noted that, for the purposes of claiming that the inclusion of certain elements in the Investigation Panel’s report is unlawful, the applicant makes reference to the right to privacy enshrined in Article 8 ECHR and Article 7 of the Charter of Fundamental Rights, which is a rule of law intended to confer rights on individuals (see judgment of 24 September 2008, M v Ombudsman, T‑412/05, not published, EU:T:2008:397, paragraph 125 and the case-law cited).
67 In that regard, it should be borne in mind that the right to privacy as enshrined in Article 8 ECHR is also protected by Article 7 of the Charter of Fundamental Rights, to which Article 6 TEU accords the same legal value as that accorded to the Treaties. However, the right to privacy is not absolute. Restrictions may be imposed provided that those restrictions in fact correspond to objectives of general interest pursued by the European Union and do not, having regard to the aim pursued, constitute disproportionate and intolerable interference impairing the very substance of that right (see judgment of 24 September 2008, M v Ombudsman, T‑412/05, not published, EU:T:2008:397, paragraph 126 and the case-law cited).
68 In addition, it should be pointed out that, in the context of the policy on dignity at work, the role of the Investigation Panel is, in essence, to carry out an objective and independent investigation in respect of one or more incidents, leading to a recommendation being made to the President of the EIB. That panel may thus recommend that the case be dropped because the parties have been able to clarify the situation and a solution for the future has been found that is acceptable to both parties. The Investigation Panel may also consider that the case does not constitute bullying or harassment, but a dispute at work requiring more detailed examination or further monitoring. It may propose that the complaint be rejected, that appropriate measures be adopted if the complaint is unfounded or malicious, or, last, that disciplinary proceedings be initiated. The President of the EIB is to decide on the appropriate measures to be implemented. The Investigation Panel has broad discretion in the context of its recommendations, but has no decision‑making powers.
69 The applicant complains that the Investigation Panel included elements and comments in its report concerning her private life that were irrelevant to the present case. She asserts that such elements are also present, to a lesser extent, in the decision of the President of the EIB. Thus, the applicant notes that the Investigation Panel’s report mentions the fact that the witnesses agree that, following a sudden break-up with her partner in 2011, her health began to deteriorate. In addition, the applicant makes reference to passages from the Investigation Panel’s report indicating that all the persons who were heard by the Investigation Panel have unanimously expressed concerns in recent years regarding her health and that they have all noticed her dramatic weight loss. The applicant also notes that that report mentions the fact that the witnesses did not, at any time, notice any reaction on her part when in Mr F’s presence. The witnesses thus indicated that, in Mr F’s presence, she had not trembled, blushed, stiffened, appeared shocked or displayed any reaction whatsoever. Last, the applicant emphasises the reference made by the Investigation Panel’s report to manipulative conduct likely to give rise to serious problems in the lives of others.
70 The applicant submits that those facts are protected by the right to privacy which every person has, and must be deleted from the Investigation Panel’s report. She argues that any assertions or findings regarding her health could be made only by medical experts, following a medical examination and with her consent. She adds that the Investigation Panel’s report does not indicate that the comments on her state of health were made by medical professionals and does not refer to the six medical certificates which she had produced. In that regard, she states that those certificates contradict certain assertions made by witnesses, in particular those concerning her lack of reaction when confronted with the person whom she claims is the cause of her harassment. She also states that a certificate from her psychologist contradicts the assertions in the Investigation Panel’s report that her conduct was manipulative. Last, she states that, contrary to the witnesses’ assertions, she has a good relationship with her former partner.
71 In that regard, it should be noted that, as the EIB correctly emphasises, the various elements in the Investigation Panel’s report highlighted by the applicant as infringing her right to privacy are direct references to witness statements. In its report, the Investigation Panel set out statements made by witnesses before indicating the conclusions it had drawn from those statements and, consequently, setting out its recommendations for resolving the case. The references to those statements in that report make it possible to identify the elements on which the Investigation Panel relied when setting out its recommendations.
72 Moreover, contrary to the applicant’s submissions, the Investigation Panel did not come to any conclusions or make any assertions regarding her state of health, but confined itself to reproducing the witness statements from which it was apparent that the applicant had lost a great deal of weight in recent years. The Investigation Panel drew from this no conclusions of a medical nature.
73 Regarding the criticism relating to the fact that her doctors were not called as witnesses, it must be pointed out that those doctors, who had no knowledge of the dispute beyond what they had been told by the applicant, could not be considered witnesses to the events in question, as the EIB correctly notes.
74 In any event, it should be borne in mind that the Investigation Panel’s report is an internal document which is addressed only to the President of the EIB and the two parties concerned and is thus not intended for distribution.
75 Last, it follows from the Investigation Panel’s report that all the elements in that report, in particular those indicating a manipulative attitude on the part of the applicant, have had no effect, in particular in terms of disciplinary proceedings, on her professional situation.
76 That being the case, although the reference to certain elements in the Investigation Panel’s report may appear both superfluous and regrettable, it nonetheless is not unlawful for the purposes of the case-law cited in paragraph 31 above.
77 In the second place, the applicant submits that the EIB also acted unlawfully in including, in both the Investigation Panel’s report and the decision of its President, facts which were irrelevant and facts and recommendations falling outside the Investigation Panel’s sphere of competence.
78 First, the applicant complains that the Investigation Panel made reference to facts which were irrelevant, such as the fact that she had a complicated relationship with her then Head of Division, that she had difficulties accepting any form of criticism, that she was impatient to advance in her career and that the present case had developed in the context of her having become aware that the appraisal she would receive would be lower than the previous year.
79 Second, the applicant asserts that certain facts set out or certain recommendations made in the Investigation Panel’s report fell outside the scope of the investigation and the Investigation Panel’s sphere of competence in the context of the policy on dignity at work. According to the applicant, the Investigation Panel is only competent to make a reasoned recommendation to the President of the EIB, which must be strictly related to the subject matter of the complaint filed by the staff member concerned. The applicant concludes that, in the present case, the Investigation Panel should have confined itself to setting out recommendations connected with her allegations of sexual harassment.
80 It should be noted from the outset that, in her arguments, the applicant does not identify any rule of law which has been infringed by the Investigation Panel. Accordingly, the applicant does not establish that the EIB acted unlawfully.
81 In addition and in any event, it is clear that, as mentioned in paragraph 68 above, one of the powers of the Investigation Panel was to recommend that appropriate measures be taken if the complaint was unfounded or malicious. Accordingly, the Investigation Panel’s reliance on the statements of the witnesses who were heard in order to try to determine the background to the filing of the complaint and whether certain facts made the events set out in the complaint implausible was plainly within its sphere of competence. Accordingly, the reference to all those elements in the investigation report does not appear to be either irrelevant or outside the Investigation Panel’s sphere of competence.
82 It follows from all the foregoing that the inclusion in the Investigation Panel’s report and the decision of the President of the EIB of the elements mentioned above does not constitute unlawful conduct on the part of the EIB capable of giving rise to liability.
83 It follows from all the foregoing that the claim for compensation must be rejected.
Claim for annulment
84 The applicant seeks annulment of, first, the decision of the President of the EIB and, second, the Investigation Panel’s report.
85 In that regard, it is apparent from the application that the unlawfulness attributed to those measures by the applicant is connected with the conduct of the EIB which she considers to be the cause of the damage to her.
86 However, it follows from paragraph 83 above that the claim for compensation has been rejected, as none of the EIB’s conduct as invoked by the applicant has been recognised as unlawful by the Court. Consequently, the claim for annulment must be rejected and, accordingly, the action must be dismissed in its entirety.
Costs
87 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the EIB.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders OZ to pay the costs.
Berardis | Papasavvas | Spineanu-Matei |
Delivered in open court in Luxembourg on 13 July 2017.
E. Coulon | | S. Frimodt Nielsen |