JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Second Chamber)

18 May 2015

Case F‑79/13

Valéria Anna Gyarmathy

v

European Monitoring Centre for Drugs and Drug Addition (EMCDDA)

(Civil service — EMCDDA staff — Temporary staff — Decision not to renew a contract of employment — Psychological harassment — Request for assistance — Administrative inquiry — Judgment by default — Examination of the admissibility of the application — Act adversely affecting the applicant — Inadmissibility — Allocation of costs)

Application:      under Article 270 TFEU, in which Ms Gyarmathy seeks the annulment of several decisions adopted by the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA, or ‘the Monitoring Centre’) concerning a request for assistance in respect of alleged psychological harassment and the decision not to renew her contract as a member of the temporary staff. The applicant also seeks compensation in respect of the non-material and material harm which she considers herself to have suffered on account of the contested decisions.

Held:      The action is dismissed. Each party is to bear its own costs.

Summary

1.      Officials — Obligation of administration to provide assistance — Request for assistance — Meaning — Request for a decision to be taken or compensation to be paid under Article 24 of the Staff Regulations — Duty of the administration to examine complaints of psychological harassment and to inform the complainant of the action taken in respect of his complaint — Condition — Compliance with the pre-litigation procedure for the submission of the complaint

(Staff Regulations, Arts 24 and 90(1))

2.      Actions brought by officials — Act adversely affecting an official — Definition — Letter addressed to a member of the temporary staff reminding him of the date on which his contract expires — Not included — Decision not to renew a contract — Included

(Staff Regulations, Art. 90(2))

3.      Actions brought by officials — Act adversely affecting an official — Definition — Decision to close without follow-up an inquiry opened on the basis of a request for assistance — Included

(Staff Regulations, Arts 90 and 91)

1.      A request for assistance includes not only a request made by an official or other member of staff claiming that he or a member of his family is currently being subjected, by reason of his position or duties, to threats, insulting or defamatory acts or utterances, or any attack to person or property, but also any request by an official inviting the appointing authority to take a decision or pay compensation pursuant to Article 24 of the Staff Regulations, even where the infringing behaviour has come to an end.

It is sufficient for that purpose that the official or staff member who is seeking the assistance of his institution under Article 24 of the Staff Regulations submit a request to that effect, in accordance with Article 90(1) of the Staff Regulations, containing at least some evidence of the reality of the attacks of which he claims he was the victim. When such evidence is provided, the institution concerned is under an obligation to take the necessary measures, in particular to undertake an inquiry, with the cooperation of the complainant, to determine the facts which gave rise to the complaint. The obligation to provide assistance includes, in particular, the duty of the administration to examine seriously, expeditiously and in total confidentiality a complaint of psychological harassment and to inform the complainant of the action taken in respect of the complaint.

(see paras 31, 32)

See:

Judgments in Klug v EMEA, F‑35/07, EU:F:2008:150, para. 74 and the case-law cited therein, and Faita v EESC, F‑92/11, EU:F:2013:130, para. 48

2.      For the purposes of Article 90(2) of the Staff Regulations, only those acts or measures which have binding legal effects such as to affect the interests of an official or staff member by bringing about a distinct change in his legal position are acts adversely affecting officials. In the case of a member of staff subject to the Conditions of Employment of Other Servants of the European Union, such acts must have as their source the authority empowered to conclude contracts of employment and be in the nature of a decision. Moreover, an act which contains no new factor by reference to a previous act merely confirms the previous act and for that reason cannot have the effect of causing time to run anew for the purpose of bringing an action.

In that regard, a letter which merely reminds a member of staff about the provisions of his contract relating to the date of its expiry and containing no new factor by reference to those provisions is not an act adversely affecting that staff member. However, where the contract is renewable, the decision taken by the administration not to renew the contract constitutes an act adversely affecting the person concerned, distinct from the contract in question and capable of forming the subject-matter of a complaint, or even an action, within the periods prescribed in the Staff Regulations. Such a decision, which is adopted following a reconsideration of the interests of the service and of the situation of the staff member concerned, contains a new factor by reference to the initial contract and cannot be regarded as merely confirming that contract.

(see paras 44, 46)

See:

Judgments in Bennett and Others v OHIM, F‑102/09, EU:F:2011:138, paras 57 to 59, and Solberg v EMCDDA, F‑124/12, EU:F:2013:157, paras 16 to 18 and the case-law cited therein

3.      Acts or decisions producing binding legal consequences likely directly and immediately to affect the applicant’s interests by significantly changing his legal situation may be the subject of an action for annulment.

A decision to close without follow-up an inquiry opened on the basis of a request for assistance affects the applicant adversely inasmuch as it constitutes a decision to reject the request for assistance.

(see paras 54, 55)

See:

Judgment in Labiri v EESC, F‑124/10, EU:F:2013:21, paras 42 and 53 and the case-law cited therein