JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

23 October 2013

Case F‑39/12

BQ

v

Court of Auditors of the European Union

(Civil service — Official — Staff report — Psychological harassment — Damages — Admissibility — Time-limits)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which BQ seeks, first, annulment of the decision of 7 December 2011 rejecting his complaint of 26 April 2011 against the rejection of his application for the Court of Auditors of the European Union to be held liable for unlawful conduct in regard to him and, secondly, an order against the Court of Auditors to compensate him for the material and non-material damage allegedly caused by that unlawful conduct.

Held:      The Court of Auditors of the European Union is to pay BQ EUR 2 000. The action is dismissed as to the remainder. The parties are to bear their own costs.

Summary

1.      Actions brought by officials — Time-limits — Claim for compensation addressed to an institution — Duty to act within a reasonable time — Point at which time starts to run and length of period

(Statute of the Court of Justice, Art. 46; Staff Regulations, Art. 90)

2.      Actions brought by officials — Actions for damages — Pleas in law –Unlawfulness of a decision of the appointing authority not contested in due time — Inadmissibility

(Staff Regulations, Arts 90 and 91)

3.      Officials — Non-contractual liability of the institutions — Breach of administrative duty — Definition — Existence of a confrontational relationship between an official and his line-manager — Included — Conditions

4.      Officials — Rights and obligations — Internal inquiry into alleged psychological harassment — Right of complainant to be heard and to have access to the inquiry file — Limits

(Staff Regulations, Arts 12a, 24 and 26)

1.      In the absence of a time-limit laid down in the regulations applicable in respect of bringing a claim for compensation arising from the employment relationship between an official and the institution by which he is employed, that claim must be brought within a reasonable time, which is determined in the light of the circumstances of the case.

Moreover, since the relevant legislation is silent on the matter, the five-year limitation period laid down in Article 46 of the Statute of the Court of Justice is a relevant point of comparison for assessing the admissibility of an official’s claim for compensation without, however, constituting a strict and inviolable limit. It must also be held that, according to Article 46, the five-year limitation period starts from the occurrence of the event giving rise to the damage or, more precisely, when the injurious effects of the measure or the unlawful conduct occurred or from the appearance of the injurious effects.

(see paras 38-39)

See:

27 January 1982, 51/81 De Franceschi v Council and Commission, para. 10; 19 April 2007, C‑282/05 P Holcim (Deutschland) v Commission, para. 29

5 October 2004, T‑144/02 Eagle and Others v Commission, paras 66 and 71; 27 August 2009, T‑367/08 Abouchar v Commission, paras 22 and 23

15 September 2010, T‑157/09 P Marcuccio v Commission, paras 46 and 47

2.      An official who has failed to bring, within the time-limits laid down in Articles 90 and 91 of the Staff Regulations, an action for annulment against an act allegedly adversely affecting him cannot, by means of a claim for compensation for the damage caused by that act, repair that omission and thus procure himself further time for bringing proceedings. Nor can he rely on the alleged unlawfulness of that act in an action for damages.

(see para. 62)

See:

29 February 1996, T‑547/93 Lopes v Commission, paras 174 and 175; 1 December 1999, T‑81/99 Schuerer v Commission, para. 31

3.      The existence of a confrontational relationship between an official and his line-manager does not as such constitute a breach of administrative duty attributable to the administration, unless it is established that the latter was at fault because it allowed a situation to deteriorate that was harmful both for the functioning of the service and for the health of the persons concerned.

(see para. 68)

4.      In the event that an inquiry procedure initiated following a request for assistance from an official complaining of psychological harassment cannot be regarded as an inquiry procedure opened against that official, the latter can none the less rely, by virtue of the principle of good administration, on the right to be heard on the facts concerning him, in so far as a decision rejecting a request for assistance in connection with alleged psychological harassment is liable to entail serious consequences, as psychological harassment can have extremely destructive effects on the health of the victim and any recognition by the administration of the existence of psychological harassment is, in itself, liable to have a beneficial effect in the therapeutic process of recovery of the harassed person.

However, the procedural right to be heard does not include the right for an official claiming to be the victim of psychological harassment to examine the whole of the inquiry report, once it has been drawn up, since, in the context of an inquiry into a case of psychological harassment it is not unreasonable, unless there are special circumstances, to seek to protect witnesses by guaranteeing their anonymity and the confidentiality of any information likely to identify them, in order, in the interests of the complainants, to enable neutral and objective inquiries to be held with the unreserved cooperation of members of staff, to prevent any risk of influence of the witnesses after the event by those incriminated, or even by the complainants, and to protect in this way working relationships which ensure the smooth running of services.

On the other hand, where the appointing authority decides to reject a complaint of psychological harassment on the basis of the findings of an inquiry report, the complaining official is entitled to have disclosed to him the reasons underlying the findings of the inquiry report, which, in the event that those reasons do not appear in the appointing authority’s decision, means that a non-confidential version of the inquiry report should be disclosed to him.

(see paras 72-74)

See:

16 May 2012, F‑42/10 Skareby v Commission, para. 46; 12 December 2012, F‑43/10 Cerafogli v ECB, paras 85, 92 and 97, on appeal before the General Court, Case T‑114/13 P