JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
28 May 2020 (*)
(Civil service — ECB staff — Complaint of discrimination and psychological harassment — Internal administrative inquiry — Rejection of the complaint — Right to an effective judicial remedy — Right to be heard — Request for access to the minutes of the hearings of witnesses — Destruction of the inquiry file — Probative character of the evidence submitted to the Court — Incomplete examination — Psychological harassment — Error of law — Duty to provide assistance — Responsibility — Causal link — Non-material damage)
In Case T‑483/16 RENV,
Maria Concetta Cerafogli, residing in Rome (Italy), represented by L. Levi, lawyer,
applicant,
v
European Central Bank (ECB), represented by F. Feyerbacher and B. Ehlers, acting as Agents, and by B. Wägenbaur, lawyer,
defendant,
ACTION under Article 270 TFEU and under Article 50a of the Statute of the Court of Justice of the European Union seeking, first, the annulment of the decision of the ECB of 24 November 2009 concluding the internal administrative inquiry opened following the applicant’s complaint of discrimination and an attack on her dignity constituting psychological harassment and an infringement of the ECB Dignity at Work policy and, if necessary, of the decision of the ECB of 24 March 2010 rejecting her special appeal and, second, an order requiring the ECB to pay her compensation,
THE GENERAL COURT (Fourth Chamber),
composed, at the time of the deliberation, of H. Kanninen, President, J. Schwarcz and C. Iliopoulos (Rapporteur), Judges,
Registrar: E. Coulon,
gives the present
Judgment
Background to the dispute
1 Ms Maria Concetta Cerafogli, who was a member of the staff of the European Monetary Institute (EMI) from 1 September 1995 and then of the European Central Bank (ECB) from 1998, was assigned as a senior expert to the Market Infrastructure Division (‘the MIS Division’) of the ‘Payments’ Directorate-General (DG) (‘the DG‑P’).
2 In 1998, following her election, the applicant became a member of the Staff Committee of the ECB and, apart from a short period in 2006, remained a member until June 2008. Throughout that period, she also assumed the function of vice-spokesperson of the Staff Committee from September 2000 to December 2001 and from October 2007 to February 2008, and of spokesperson of that committee from May 2001 to July 2002. For the purposes of her staff representation activities, the applicant was granted a dispensation from service of between 20% and 50% of her working time. The dispensation from service granted to her specifically for the period from January to July 2006 represented 50% of that time.
3 From March to May 2007, the applicant, who had already been granted a dispensation from service of 20% of her working time for her staff-representation activities, had her working hours reduced by an additional 35% on medical grounds. At that point, the Director-General of the DG‑P (‘the Director-General DG‑P’) relieved her of the file on standards for payment instruments and gave her, as her sole task, responsibility for preparing a policy note on standards for payment instruments.
4 The applicant was placed on sick leave from 17 January 2008 and was assigned to another division as from 1 August 2008.
5 The applicant takes the view that she has, for several years, been the victim of discrimination and an infringement by the ECB of the Dignity at Work policy. In particular, her complaint against the ECB is that she had to bear a heavy workload because she had to combine her work in the division with her work for the Staff Committee and that, from April 2007, she was given the sole task of preparing the policy note on standards for payment instruments. Further, she complains that, in January 2008, she received neither a salary increase nor a bonus because of her alleged underperformance, whereas it was the Director-General DG‑P who was responsible for that alleged underperformance. She also maintains that, in particular, he offended her by stating without further explanation that her professional reputation was ‘very bad’ and threatened her by stating to her that if she did not follow his advice to leave the DG‑P she would be ‘devastated’, even though he was aware of her fragile psychological health.
6 Against that background, on 8 April 2008, the applicant lodged an ‘application for pre-contentious review’ (‘the complaint’ or ‘the request for assistance’) on the basis of Article 41 of the Conditions of Employment for Staff of the ECB adopted by Decision 1999/330/EC of the European Central Bank of 9 June 1998 on the adoption of the Conditions of Employment for Staff of the European Central Bank, as amended on 31 March 1999 (OJ 1999 L 125, p. 32; ‘the Conditions of Employment’). That application sought to challenge, first, the conduct of her line managers, which she claimed constituted discrimination and psychological harassment against her and, second, the infringement by the ECB of international and EU rules of employment law.
7 By letter of 30 May 2008, the ECB informed the applicant of the decision of its Executive Board to open an internal administrative inquiry (‘the administrative inquiry’), instructing a panel ‘“to clarify the facts and circumstances of and the existence or absence of sufficient evidence” of allegations relating to the “discrimination [allegedly suffered by her] on the grounds of gender, age, nationality and health conditions and … her Staff Committee membership” and [the] allegations related to “a breach of the Dignity at Work policy”, in particular by the [DG‑P], including “defamation, isolation, mobbing and intimidation”’.
8 On 5 September 2009, a draft inquiry report was sent to the applicant for her comments. The applicant sent her comments on 5 October 2009.
9 The final inquiry report, dated 11 November 2009, concluded that the applicant’s allegations were not substantiated. That report was forwarded to the Executive Board of the ECB on 17 November 2009, that is, on the actual day of the meeting of the Executive Board, during which the decision of 24 November 2009, by which the Executive Board concluded the administrative inquiry on the ground that the claims on which the applicant’s complaint was based were not substantiated, was adopted (‘the contested decision of 24 November 2009’). That decision was notified to the applicant by letter of 30 November 2009, which was received by her on 1 December 2009.
10 By fax of 29 January 2010, the applicant brought a special appeal pursuant to Article 41 of the Conditions of Employment, supplemented by Article 8.1.6 of the ECB Staff Rules, before the President of the ECB against the contested decision of 24 November 2009. The three annexes to that special appeal were received by the ECB a few days after that date.
11 That special appeal was rejected by decision of the Executive Board of the ECB of 24 March 2010 (‘the contested decision of 24 March 2010’).
The original proceedings before the Civil Service Tribunal which gave rise to the judgment of 12 December 2012, Cerafogli v ECB (F‑43/10)
12 By application lodged at the registry of the European Union Civil Service Tribunal on 4 June 2010, registered under number F‑43/10, the applicant claimed that the Civil Service Tribunal should: first, annul the contested decision of 24 November 2009 and, if necessary, that of 24 March 2010; second, accordingly, uphold the claims that she had made in her complaint and, specifically, (i) put an end to any form of discrimination and psychological harassment against her and (ii) order the Director-General DG‑P to withdraw in writing his offensive and threatening statements; third, order the ECB to pay her compensation for the non-material and material damage suffered assessed ex aequo et bono at EUR 50 000 and EUR 15 000, respectively; fourth, order the ECB to pay the costs; fifth, order the ECB to produce the full inquiry report with all its annexes, including the minutes of testimony of the witnesses heard during the administrative inquiry (‘the contested minutes’); in addition, order the ECB to produce all the communications between the panel and the Executive Board of the ECB or the President of the ECB; sixth, order the summoning of A as a witness.
13 In support of her action before the Civil Service Tribunal, the applicant put forward the following pleas in law:
– a first plea alleging infringement of the rights of the defence, the right to be heard, the adversarial principle and the right to be assisted by a lawyer, breach of Article 7(1) and (3) of Administrative Circular No 1/2006 of the Executive Board of the ECB of 21 March 2006 on internal administrative inquiries (‘Circular No 1/2006’), breach of the obligation to state reasons, breach of Article 6(5) of Circular No 1/2006, breach of Article 3 of the Rules of Procedure of the Executive Board of the ECB, adopted by Decision ECB/1999/7 of the ECB of 12 October 1999 (OJ 1999 L 314, p. 34), and breach of Articles 51 and 52 of the Conditions of Employment;
– a second plea alleging breach by the panel of its mandate;
– a third plea alleging a manifest error of assessment;
– a fourth plea alleging infringement of the concept of psychological harassment;
– a fifth plea alleging breach of the duty to provide assistance.
14 By judgment of 12 December 2012, Cerafogli v ECB (F‑43/10, EU:F:2012:184; ‘the original judgment’), the Civil Service Tribunal (Third Chamber) rejected all the heads of claim and pleas in law relied on by the applicant and, therefore, dismissed the action in its entirety and ordered the applicant to pay the costs.
15 In addition, the Civil Service Tribunal refused the applicant’s request for production of the inquiry file, including the annexes to the inquiry report and the contested minutes (the original judgment, paragraphs 220 to 222).
The appeal before the General Court (Appeals Chamber) and the judgment of 23 September 2015, Cerafogli v ECB (T‑114/13 P)
16 By her appeal lodged pursuant to Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the applicant asked the General Court (Appeals Chamber), in essence, first, to set aside the original judgment and, second, to uphold the form of order sought at first instance in her action in Case F‑43/10.
17 In support of her appeal, the applicant relied on the following grounds:
– a first ground alleging distortion of the file and infringement of the rights of the defence, the principle of proportionality, Article 20 of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1) and the right to an effective remedy, resulting from the refusal to grant the applicant access to the contested minutes;
– a second ground alleging infringement of the right to an effective judicial remedy and the obligation to state reasons resulting from the refusal to grant her request for an order requiring the ECB to produce the contested minutes and the annexes to the inquiry report;
– a third ground alleging that the Civil Service Tribunal had erred in its assessment of the plea alleging breach by the panel of its mandate and the breach by the ECB of its duty to provide assistance;
– a fourth ground alleging infringement of Article 6(5) of Circular No 1/2006;
– a fifth ground alleging that the Civil Service Tribunal had misconstrued the concept of manifest error of assessment and a failure to state reasons.
18 Specifically, by the first part of the first ground of appeal, the applicant alleged, in essence, that the Civil Service Tribunal had been wrong to hold that the ECB was not bound to guarantee that her rights of defence were respected or to grant her access to the entire inquiry file, in particular the contested minutes. By the second part of the first ground of appeal, the applicant claimed, in essence, that access to the draft inquiry report only, considered by the Civil Service Tribunal to ensure compliance with the adversarial principle in the administrative procedure, had not enabled her to exercise her rights of defence, or state her point of view effectively, as that draft report did not refer to all the witness statements and did not include all the facts concerning her. By the third part of the first ground of appeal, the applicant claimed, in essence, that the Civil Service Tribunal had been wrong, first, to hold that the protection of witnesses was an additional reason to refuse her access to the file without, however, weighing that protection against the rights of defence to which she was entitled and, second, to hold that the need to protect witnesses from any influence had to be guaranteed by the anonymity and confidentiality of any information likely to identify them, whereas Circular No 1/2006 did not provide for any such protection nor for the anonymity and confidentiality of any information likely to identify the witnesses. By the fourth part of the first ground of appeal, the applicant claimed, in essence, that the Civil Service Tribunal had misconstrued Article 20 of Regulation No 45/2001. Lastly, by the fifth part of that ground of appeal, the applicant alleged that the Civil Service Tribunal had disregarded the right to an effective judicial remedy by failing to allow her to take cognisance of the inquiry file, thereby preventing her from defending her rights in a satisfactory manner during the legal proceedings with regard, in particular, to the impact of the witness statements.
19 In the judgment of 23 September 2015, Cerafogli v ECB (T‑114/13 P, EU:T:2015:678; ‘the judgment on appeal’), the General Court considered it appropriate to examine together the first ground of appeal, alleging infringement of the rights of the defence, distortion of the file, infringement of the principle of proportionality, Article 20 of Regulation No 45/2001 and the right to an effective remedy, and the second ground of appeal, alleging infringement of the right to an effective judicial remedy and the obligation to state reasons (the judgment on appeal, paragraph 24). At the end of that examination, first, it rejected the first part of the first ground of appeal and, in part, the second part of that ground of appeal. Second, it upheld the second ground of appeal and, in part, the second and fifth parts of the first ground of appeal. It accordingly set aside the original judgment, referred the case back to the Civil Service Tribunal and reserved the costs.
20 First of all, after pointing out, in paragraph 32 of the judgment on appeal, that it is settled case-law that the rights of the defence, which include the right to be heard and the right to have access to the file, are among the fundamental rights the observance of which is required even where the applicable legislation does not expressly provide for such a procedural requirement, the Court took the view, in paragraph 40 of the judgment on appeal, that the Civil Service Tribunal had correctly held that 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 that the procedural rights of the person accused of harassment are distinct from the more limited rights, in the context of an administrative procedure, of a complainant. Moreover, it took the view, in paragraph 41 of the judgment on appeal, that the Civil Service Tribunal had also correctly held that the adversarial principle, which also applies in an administrative procedure, had been observed in the case at hand, as the applicant had had the opportunity to make her views known on the draft inquiry report, which had led to the rejection of her complaint. Accordingly, the Court rejected the first part of the first ground of appeal and, in part, the second part of that ground of appeal.
21 Next, in paragraph 42 of the judgment on appeal, the Court held that the considerations taken into account by the Civil Service Tribunal in paragraphs 221 and 222 of the original judgment in order to refuse access to the applicant, during the first-instance judicial proceedings, to the contested minutes were vitiated by an error of law. It pointed out that, in order to justify that decision, the Civil Service Tribunal had relied (i) on the assertion that the applicant was not entitled to take cognisance of those documents during the administrative procedure, (ii) on the ‘particularly full and informative’ nature of the inquiry report and (iii) on the need to guarantee the neutrality and objectivity of the inquiries in order to obtain the unreserved cooperation of members of staff, which the removal of the confidentiality of testimony during the proceedings could have undermined.
22 Moreover, in paragraph 43 of the judgment on appeal, the Court held that 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 her 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 an applicant, in order effectively to make known his or her arguments, should be placed in a position to examine the extent to which the inquiry report matches the contested minutes on which that report is based or, at least, request that the Civil Service Tribunal examine that evidence under the conditions of confidentiality set out in Article 47 of the Rules of Procedure of that Tribunal. It was therefore for the Civil Service Tribunal, in accordance with Article 47(2) of its Rules of Procedure, to weigh the applicant’s interest in obtaining the evidence necessary to allow her properly to exercise her right to an effective judicial remedy, on the one hand, against the disadvantages that the disclosure of such evidence was likely to give rise to, on the other.
23 Furthermore, the Court took the view, in paragraph 45 of the judgment on appeal, that where, during an administrative procedure, an applicant has not been put in a position to access evidence that is decisive to 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 or she has been denied access. On the contrary, if the applicant demonstrates even a prima facie case in support of his or her claims, it is for the Civil Service Tribunal to require production of the evidence necessary to assess the merits of that argument.
24 The Court also pointed out, in paragraph 46 of the judgment on appeal, that, in the case at hand, it was apparent from the original judgment that the applicant specifically called into question the inquiry report and alleged, in particular, that certain witness statements had not been taken into account (the original judgment, paragraph 220, last sentence) and that negative assessments had been made against her on the basis of the testimony given (the original judgment, paragraph 127, last sentence).
25 In paragraph 47 of the judgment on appeal, the Court took the view that, in order to dismiss those claims, the Civil Service Tribunal could not state that the inquiry report was full, that there was nothing in the file to indicate that it did not substantially reproduce the testimony given (the original judgment, paragraph 97), nor that it contained, inter alia, an account of the facts compiled during the inquiry or that it was particularly full and informative in itself (the original judgment, paragraph 222), without first checking the consistency between the inquiry report in question and the testimony given during the inquiry. According to the Court, that obligation was all the more necessary in the case at hand, as the Civil Service Tribunal had pointed out, in paragraphs 162 to 193 of the original judgment, that the applicant was justified in claiming that the inquiry report was vitiated by numerous factual errors (the judgment on appeal, paragraph 48).
26 Accordingly, in paragraph 49 of the judgment on appeal, the Court took the view that the Civil Service Tribunal could not hold, in order to reject the applicant’s argument, that, in essence, there was no contradiction between the inquiry report and the contested minutes, without checking this. Rather, it should itself have examined those minutes, which the parties had not placed on the case file. The Court thus held that the Civil Service Tribunal had erred in law by refusing to require the ECB to provide it with the evidence in the inquiry file and, in particular, the testimony given during the inquiry. Accordingly, in paragraph 52 of the judgment on appeal, the Court upheld the second ground of appeal and, in part, the second and fifth parts of the first ground of appeal.
27 Consequently, the Court set aside the original judgment and referred the case back to the Civil Service Tribunal for it to rule on the application brought before it by the applicant, in the light of the inquiry file and, in particular, the contested minutes (the judgment on appeal, paragraph 55).
Procedure for referral back
28 By letter of 7 October 2015, the Registry of the Civil Service Tribunal, in accordance with Article 130(1) of its Rules of Procedure in force on that date, informed the applicant that she had a period of two months, extended on account of distance by a single period of 10 days, from the time at which the judgment on appeal was served within which to lodge her statement of written observations.
29 The applicant did not submit any observations, as her lawyer had miscalculated the deadline. By letter of 11 December 2015, the applicant’s lawyer therefore asked the Civil Service Tribunal for the opportunity to submit her observations in a supplementary statement in accordance with Article 130(5) of the Rules of Procedure of the Civil Service Tribunal.
30 By letter received at the Registry of the Civil Service Tribunal on 19 January 2016, which was served on the applicant, the ECB submitted its observations on the referral back. First, the ECB stated that it could not make any comments, as the applicant had failed to submit any observations. Second, in compliance with the judgment on appeal, the ECB annexed to the letter of 19 January 2016 a confidential copy of the 45 sets of minutes of the hearings of the 38 witnesses examined in the administrative inquiry, requesting confidential treatment of those minutes and indicating to the Civil Service Tribunal that, should the Civil Service Tribunal deem it necessary that those minutes be sent to the applicant, the ECB would provide her with a non-confidential version. Third, the ECB stated that it was not in a position to provide a signed copy of the 45 sets of minutes referred to above, as the original inquiry file had been destroyed in accordance with the ECB document retention plan. The letter of 19 January 2016 was placed on the case file and served on the applicant without its annexes.
31 On 27 January 2016, the Civil Service Tribunal, in accordance with Article 47 of its Rules of Procedure then in force, requested that the ECB produce the non-confidential version of the 45 sets of minutes of the hearings of witnesses sent on 19 January 2016. The ECB complied with that request on 18 February 2016. Those documents (‘the 45 sets of minutes sent on 18 February 2016’) were placed on the file and served on the applicant.
32 On 27 April 2016, the applicant lodged at the Registry of the Civil Service Tribunal her supplementary written observations (‘the supplementary written observations of 27 April 2016’), as she had previously been invited to do in accordance with Article 130(5) of the Rules of Procedure of the Civil Service Tribunal, in which she claimed that the Civil Service Tribunal should:
– annul the contested decision of 24 November 2009 and, if necessary, the contested decision of 24 March 2010;
– in any case, order the ECB to pay her compensation for the non-material and material damage suffered assessed ex aequo et bono at EUR 70 000 and EUR 15 000, respectively;
– order the ECB to pay the costs.
33 On 30 June 2016, the ECB lodged at the Registry of the Civil Service Tribunal supplementary observations in which it contended that the Civil Service Tribunal should:
– reject the form of order sought by the applicant;
– reject the claim for compensation for the non-material and material damage allegedly suffered by the applicant;
– order the applicant to pay all the costs.
34 Annexed to its supplementary observations of 30 June 2016, the ECB also produced the non-confidential version of the document entitled ‘Information for the purpose of the administrative inquiry’, sent to one of the witnesses heard in the context of the administrative inquiry of 2008. That information document was placed on the file and served on the applicant.
35 By letter of 8 July 2016, the applicant offered new evidence, which was placed on the file and served on the ECB.
36 By letter of 15 July 2016, the Civil Service Tribunal, pursuant to Article 47(2) of its Rules of Procedure, requested that the ECB produce, by 1 August 2016 at the latest, the confidential and non-confidential versions of the 45 information documents signed by each of the witnesses prior to their hearing.
37 By letter of 22 July 2016, registered by the Civil Service Tribunal on 28 July 2016 (‘the letter of 22 July 2016’), the ECB submitted observations on the new evidence offered by the applicant (see paragraph 35 above). In addition, it annexed to the letter of 22 July 2016, first, the confidential and non-confidential versions of the 45 information documents signed by each of the witnesses heard, as requested by the Civil Service Tribunal by letter of 15 July 2016 (see paragraph 36 above), and, second, several other documents submitted voluntarily.
38 The Civil Service Tribunal did not take any decision concerning the placement on the file of the documents referred to in paragraph 37 above.
39 With effect from 1 September 2016, the present case was transferred to the General Court 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).
40 By reason of that transfer, the present case was given case number T‑483/16 RENV.
41 On 16 February 2017, the Court asked the ECB, by way of a measure of organisation of procedure adopted on the basis of Article 89(3) of its Rules of Procedure, to state whether the 45 information documents annexed to the letter of 22 July 2016 contained confidential information with regard to the applicant and, if necessary, to withdraw voluntarily the confidential and non-confidential versions of the 45 information documents annexed to the letter of 22 July 2016 and to submit to it only one version of the 45 information documents that could be placed on the case file and served on the applicant.
42 The ECB complied with that request within the prescribed period. Thus, by letter of 9 March 2017, first, the ECB stated that it would withdraw all the documents annexed to the letter of 22 July 2016, including the documents sent voluntarily on 22 July 2016 (see paragraph 37 above). Second, it sent to the Court the non-confidential version of the 45 information documents requested by the Civil Service Tribunal by letter of 15 July 2016 (see paragraph 36 above) and a non-confidential version of the 30 sets of minutes, signed in 2016, of the hearings of the witnesses heard during the administrative inquiry (‘the 30 sets of minutes sent on 9 March 2017’), a version which included fewer blackened passages than that of the 45 sets of minutes sent on 18 February 2016 (see paragraph 31 above). The ECB also stated that it did not produce a confidential version of all the documents referred to above, as it did not wish that version to be sent to the applicant.
43 The letters of 22 July 2016 and 9 March 2017 and all the documents annexed to the letter of 9 March 2017 were placed on the case file and served on the applicant.
44 Ultimately, first, the 45 sets of minutes sent on 18 February 2016, second, the 30 sets of minutes sent on 9 March 2017 and, third, the non-confidential version of the 45 information documents signed by the witnesses heard were placed on the file and served on the applicant (see paragraphs 31 and 42 above).
45 By letter of 2 May 2017, first of all, the applicant raised, in accordance with Article 85(1) to (3) of the Rules of Procedure, a plea of inadmissibility in respect of the 30 sets of minutes sent on 9 March 2017 due to the fact that those minutes had been sent late without any justification. In addition, she requested that the Court allow her to submit observations on the documents referred to above should it declare them admissible.
46 The letter of 2 May 2017 was placed on the file and the ECB was invited to submit its observations on the plea of inadmissibility raised by the applicant.
47 By letter of 31 May 2017, the ECB submitted its observations on that plea of inadmissibility.
48 By decision of 7 August 2017, the General Court (Fourth Chamber), in accordance with Article 89(3)(a) of its Rules of Procedure, adopted a measure of organisation of procedure for the purpose of questioning the parties concerning their possible wish to be heard in a hearing. The period within which they had to reply to that question expired on 28 August 2017.
49 The applicant complied with that request within the prescribed period by letter of 28 August 2017, in which she stated in particular that, in accordance with the principle of economy of procedure, she did not consider it necessary that a hearing be held.
50 By letter of 12 September 2017, sent after the expiry of the period prescribed by the Court, the ECB also stated that it did not consider it necessary that a hearing be held. In that letter, the ECB also contended that the applicant’s answer to the Court’s written question constituted a written pleading and, therefore, should not be placed on the file.
51 On 21 November 2017, 20 December 2018 and 27 June 2019, the Court, in accordance with Article 89(3)(a) of its Rules of Procedure, sent three new sets of questions to the parties by way of measures of organisation of procedure, with which the parties complied within the prescribed periods.
52 By way of a measure of organisation of procedure of 26 July 2019, the Court invited each party to submit its observations on the other party’s replies to the Court’s written questions of 27 June 2019. The parties complied with that request within the prescribed periods.
Admissibility
Preliminary observations
Rules of procedure applicable to the referral back procedure
53 In the light of the dissolution of the Civil Service Tribunal, as from 1 September 2016, the present case was transferred to the General Court pursuant to Article 3 of Regulation 2016/1192, which provides:
‘Cases pending before the Civil Service Tribunal on 31 August 2016 shall be transferred to the General Court. The General Court shall continue dealing with those cases as it finds them at that date and in accordance with its Rules of Procedure. …’
54 Consequently, the Rules of Procedure of the General Court apply to any procedural issue arising after 1 September 2016.
55 By contrast, issues relating to the admissibility of the applicant’s action must be assessed in the light of the rules of procedure applicable at the time when that action was brought and, therefore, in the present case, in the light of the Rules of Procedure of the Civil Service Tribunal in their version applicable at the time when the original action was brought (see, to that effect, judgment of 26 September 2017, Knöll v Europol, T‑563/16, not published, EU:T:2017:665, paragraph 25), that is to say, in the present case, the version of 25 July 2007 (OJ 2007 L 225, p. 1).
56 Lastly, the procedural issues relating to the referral back procedure prior to 1 September 2016 must be dealt with on the basis of the Rules of Procedure of the Civil Service Tribunal in their version applicable at the time, that is to say, the version of 14 July 2014 (OJ 2014 L 206, p. 1).
Subject matter of the proceedings following referral back
57 In accordance with Article 128 of the Rules of Procedure of the Civil Service Tribunal of 14 July 2014, where the General Court sets aside a judgment or an order of the Civil Service Tribunal and refers the case back to the Tribunal by virtue of Article 13 of Annex I to the Statute of the Court of Justice of the European Union, the Civil Service Tribunal is to be seised of the case by the judgment so referring it.
58 Article 13 of Annex I to the Statute of the Court of Justice of the European Union (repealed by Regulation 2016/1192) provides:
‘1. If the appeal is well founded, the General Court shall quash the decision of the Civil Service Tribunal and itself give judgment in the matter. It shall refer the case back to the Civil Service Tribunal for judgment where the state of the proceedings does not permit a decision by the Court.
2. Where a case is referred back to the Civil Service Tribunal, the Tribunal shall be bound by the decision of the General Court on points of law.’
59 Thus, once the General Court had set aside the original judgment and referred the case back to the Civil Service Tribunal, the Civil Service Tribunal was seised, pursuant to Article 13 of Annex I to the Statute of the Court of Justice of the European Union and Article 128 of the Rules of Procedure of the Civil Service Tribunal, of the case by the judgment on appeal and had to rule again on all of the pleas in law in support of annulment raised by the applicant, apart from those elements of the operative part not set aside by the General Court and the considerations on which those elements were essentially founded, as those elements had acquired the authority of res judicata (see, by analogy, judgment of 14 September 2011, Marcuccio v Commission, T‑236/02, EU:T:2011:465, paragraph 83).
60 In the present case, point 1 of the operative part of the judgment on appeal set aside the original judgment after having, first, upheld, in part, the second and fifth parts of the first ground of appeal, by which, in essence, the applicant alleged that the Civil Service Tribunal had infringed the obligation to state reasons and her right to an effective judicial remedy by failing to allow her to take cognisance of the inquiry file, thereby preventing her from defending her rights in a satisfactory manner during the legal proceedings (the judgment on appeal, paragraphs 30 and 52), and, second, upheld the second ground of appeal, by which the applicant claimed that the Civil Service Tribunal had wrongly rejected her request for a measure requiring the ECB to produce the inquiry file with its annexes and the contested minutes (the judgment on appeal, paragraphs 31 and 52). However, the judgment on appeal rejected the first part of the first ground of appeal and, in part, the second part of it, the Court holding, in essence, that the Civil Service Tribunal had not erred in holding that the applicant’s rights of defence, including the right to be heard, and the adversarial principle had not been infringed in the case at hand (see paragraphs 19 and 20 above).
61 Lastly, in paragraphs 54 and 55 of the judgment on appeal, the Court held that ‘since the state of the proceedings does not permit the General Court to give final judgment in the matter, the case must be referred back to the Civil Service Tribunal for it to rule on the application brought before it by the appellant, in light of the inquiry file and, in particular, the minutes of the testimonies annexed to the inquiry report’.
62 It follows from the foregoing that the General Court is called upon to rule again on all the heads of claim and pleas for annulment raised by the applicant in her original action, with the exception of the claims alleging infringement of the rights of the defence, including the right to be heard, and infringement of the adversarial principle, which were relied on in support of the first plea raised in the application and were rejected once and for all in the judgment on appeal (see paragraphs 20 and 60 above).
63 Lastly, it should be noted that, in paragraph 125 of her supplementary written observations of 27 April 2016, the applicant stated that she ‘will modify her claims in order notably to comply with [the original judgment] (paragraphs 42 to 44)’.
64 In response to a written question put by the Court on 20 December 2018, the applicant confirmed that she was withdrawing the second head of claim in her application, by which she requested that the Civil Service Tribunal uphold the claims, which she had made in her complaint, seeking, specifically, an end to any form of discrimination and psychological harassment against her and the withdrawal in writing by the Director-General DG‑P of his offensive and threatening statements (see paragraph 12 above).
65 Account must therefore be taken of the withdrawal by the applicant of her second head of claim, referred to in paragraph 64 above.
Scope of the claims for annulment and admissibility of the claims for annulment of the contested decision of 24 March 2010
66 By the present action, the applicant claims that the Court should, in particular, annul the contested decision of 24 November 2009 and, if necessary, the contested decision of 24 March 2010.
67 By way of a measure of organisation of procedure, the Court requested that the parties make known their position on the admissibility of the action in the light of Article 35(1)(e) of the Rules of Procedure of the Civil Service Tribunal of 25 July 2007, in so far as that action is directed against the contested decision of 24 March 2010. In its reply of 14 July 2019, the ECB stated, in essence, that the action, in so far as it was directed against that decision, did not meet the conditions of admissibility laid down in Article 35(1)(e) of the Rules of Procedure of the Civil Service Tribunal of 25 July 2007, as none of the grounds relied on by the applicant supported her application for annulment.
68 The applicant claims that the action brought against the contested decision of 24 March 2010 is admissible for two reasons. First, the application explicitly refers to that decision. Second, according to the case-law, claims for annulment formally brought against a decision rejecting a complaint have the effect of bringing before the Court the act against which the complaint was submitted, where those claims, as such, lack any independent content.
69 Under Article 35(1)(e) of the Rules of Procedure of the Civil Service Tribunal of 25 July 2007, the application referred to in Article 21 of the Statute of the Court of Justice of the European Union must state, inter alia, the pleas in law and arguments of fact and law relied on.
70 Furthermore, according to settled case-law, the administrative complaint such as referred to in Article 90(2) of the Staff Regulations of Officials of the European Union, as amended by Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (OJ 2004 L 124, p. 1), which entered into force on 1 May 2004 (‘the Staff Regulations’), and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the EU Courts. Consequently, the action before the EU Courts, even if formally directed against the rejection of the complaint, has the effect of bringing before the EU Courts the act adversely affecting the applicant against which the complaint was submitted (judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraphs 7 and 8, and of 12 December 2018, SH v Commission, T‑283/17, EU:T:2018:917, paragraph 37), except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made (judgments of 25 October 2006, Staboli v Commission, T‑281/04, EU:T:2006:334, paragraph 26, and of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 70).
71 An express decision rejecting a complaint may, in the light of its content, not be confirmatory of the measure contested by the applicant. That is the case where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such circumstances, the rejection of the complaint constitutes a measure subject to review by the EU Courts, which will take it into consideration when assessing the legality of the contested measure or will even regard it as an act adversely affecting the applicant replacing the contested measure (see judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 32 and the case-law cited).
72 Since, under the system laid down in the Staff Regulations, the person concerned must submit a complaint against the decision which he or she is contesting and then bring an action against the decision rejecting that complaint, the Court of Justice has held that the action is admissible whether it is directed only against the decision which is the subject of the complaint, against the decision rejecting the complaint or against both of those decisions, provided that the complaint and the action were filed within the periods prescribed by the applicable provisions (see, to that effect, judgment of 26 January 1989, Koutchoumoff v Commission, 224/87, EU:C:1989:38, paragraph 7). However, in accordance with the principle of economy of procedure, the EU Courts may decide that it is not appropriate to rule specifically on the claims directed against the decision rejecting the complaint where they find that those claims have no independent content and are, in reality, the same as those directed against the decision against which the complaint has been made (see judgment of 21 February 2018, LL v Parliament, C‑326/16 P, EU:C:2018:83, paragraph 38 and the case-law cited).
73 Furthermore, it should be noted that, pursuant to Article 9(c) of the Conditions of Employment, ‘in interpreting the rights and obligations under the … Conditions of Employment, due regard shall be shown for the authoritative principles of the regulations, rules and case-law which apply to the staff of the [EU] institutions’.
74 In addition, it should be noted that Article 41 of the Conditions of Employment and Article 8.1 of the ECB Staff Rules provide for a pre-contentious procedure the observance of which is a precondition for bringing legal proceedings against the decisions or acts of the ECB. In accordance with Article 8.1 of the ECB Staff Rules, the pre-contentious procedure comprises two stages: first, an administrative review procedure and, second, a grievance procedure or a special appeals procedure depending on the body of the ECB which has adopted the contested decision.
75 Accordingly, inasmuch as the conditions governing admissibility of actions brought before the Court of Justice of the European Union against the decisions or acts of the ECB, provided for in the body of rules applicable to ECB staff, bear certain similarities to those provided for in Article 90(1) and (2) of the Staff Regulations, the case-law referred to in paragraphs 70 to 72 above should be applied by analogy (see, to that effect, judgment of 17 March 2015, AX v ECB, F‑73/13, EU:F:2015:9, paragraph 103).
76 In the present case, although the contested decision of 24 March 2010 confirms the contested decision of 24 November 2009 and, therefore, does not alter the latter decision’s operative wording, the former decision is nevertheless not entirely bereft of independent content. First of all, while confirming that the contested decision of 24 November 2009 was well founded, the Executive Board of the ECB stated for the first time in the contested decision of 24 March 2010 that the applicant’s annual appraisals prior to 2007 contained certain critical comments about her and were therefore qualified, whereas the contested decision of 24 November 2009 did not contain any assessment of the applicant’s professional skills. Next, the contested decision of 24 March 2010 raises doubts as to the admissibility of the special appeal. Lastly, it rejects the applicant’s criticism concerning the panel’s alleged impartiality and the failure by the panel to comply with its mandate.
77 The contested decision of 24 March 2010 therefore has some independent content by comparison with the contested decision of 24 November 2009.
78 In those circumstances, first, it is appropriate to rule on the claims for annulment of the contested decision of 24 November 2009 without it being necessary to rule on those directed against the contested decision of 24 March 2010 which do not have any independent content.
79 Second, it is appropriate to rule specifically on the claims for annulment directed against the contested decision of 24 March 2010 in so far as that decision supplements the statement of reasons for the contested decision of 24 November 2009 in concluding that the panel did not breach its mandate, that the panel was impartial and that, in essence, professional difficulties existed in relation to the applicant prior to 2007 (see paragraph 76 above).
80 In that regard, contrary to what is contended by the ECB, it is clear that, in the application, the applicant put forward claims in support of the claims for annulment directed against the part of the contested decision of 24 March 2010 which has independent content. In the context of the second plea, she alleged failure by the panel to comply with its mandate. In addition, in the second part of the third plea, she complained that the contested decision of 24 March 2010 defamed her further and relied on excerpts from her annual appraisals which were unfavourable to her because they were altered or taken out of context. Lastly, in her reply, the applicant invoked bias on the part of the panel as an element demonstrating the breach of the duty to provide assistance.
81 In the light of the foregoing, the action is admissible inasmuch as that action seeks the annulment of the contested decision of 24 March 2010 in so far as that decision has independent content.
Pleas of inadmissibility relied on by the ECB in its defence
82 In its defence, the ECB raised five pleas of inadmissibility alleging, respectively, failure to follow the pre-contentious procedure and observe the time limit applicable to special appeals, absence of an act adversely affecting the applicant, lis alibi pendens and infringement of the ‘rule of consistency between the complaint and the action’.
83 In response to a written question put by the Court on 27 June 2019, the ECB stated that the situation of lis alibi pendens, which it disputed in the defence, had disappeared following the delivery of the two judgments of 28 October 2010, Cerafogli v ECB (F‑84/08, EU:F:2010:134), and of 28 October 2010, Cerafogli v ECB (F‑96/08, EU:F:2010:135). As that assessment is free of error, there is no longer any need to rule on the plea of inadmissibility alleging lis alibi pendens.
Failure to follow the pre-contentious procedure, and failure to observe the time limit applicable to special appeals and the rule of ‘consistency between the complaint and the action’
84 The ECB contends that the application is inadmissible on the ground that the applicant has not lodged a special appeal that complies with Article 41 of the Conditions of Employment and Article 8.1.6 of the ECB Staff Rules. The special appeal lodged by letter of 29 January 2010 consists of a ‘series of general remarks’ and vague allegations and the integral part of the argument is set out in annexes sent by the applicant after the two-month period laid down for the lodging of the special appeal had expired, with the result that those annexes are inadmissible. Furthermore, the ECB contends that the pleas for annulment raised in the application, alleging a manifest error of assessment, infringement of the concept of psychological harassment and breach of Article 6(5) of Circular No 1/2006, Article 3(1) of the Rules of Procedure of the Executive Board of the ECB and Articles 51 and 52 of the Conditions of Employment are inadmissible as they had not been relied on previously in the special appeal.
85 The applicant disputes those pleas of inadmissibility.
86 Article 8.1.6 of the ECB Staff Rules provides that the special appeal is to be initiated by a member of staff within two months from the date on which the Executive Board’s decision was sent to that member of staff, by means of a special appeal submitted to the President of the ECB. That application must be accompanied by any relevant documents and must state clearly the reasons for challenging the decision and the relief sought.
87 It follows from the foregoing that the special appeals procedure is not subject to strict formal requirements, like the complaints procedure provided for in Article 90(2) of the Staff Regulations.
88 It should also be noted that, since the pre-contentious procedure is informal in character and those concerned act, in general, without the assistance of a lawyer at that stage, the administration must not interpret complaints restrictively but must, on the contrary, examine them with an open mind. It is not the purpose of Article 90 of the Staff Regulations to bind strictly and absolutely the contentious stage of the proceedings, if any, provided that the action brought at that stage changes neither the legal basis nor the subject matter of the complaint (see, to that effect, judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 76).
89 However, if the pre-contentious procedure provided for in Article 90(1) and (2) of the Staff Regulations is to achieve its purpose, the administration in question must be in a position to know with sufficient precision the criticism formulated by the persons concerned against the contested decision (see, to that effect, judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 77).
90 Furthermore, according to settled case-law, the rule that there must be consistency between a complaint under Article 90(2) of the Staff Regulations and the subsequent application requires that, for a plea before the EU Courts to be admissible, it must have already been raised in the pre-contentious procedure, enabling the competent authority to know the criticism made by the person concerned in respect of the contested decision (see, to that effect, judgment of 4 July 2014, Kimman v Commission, T‑644/11 P, EU:T:2014:613, paragraph 43 and the case-law cited).
91 That rule is justified by the very purpose of the pre-litigation procedure, which is to allow for an amicable settlement of disputes arising between officials and the administration (see judgment of 4 July 2014, Kimman v Commission, T‑644/11 P, EU:T:2014:613, paragraph 44 and the case-law cited).
92 It follows that, in actions brought by officials, claims before the EU Courts may contain only heads of the claim based on the same matters as those raised in the complaint, although those heads of claim may be developed before the EU Courts by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it (see judgment of 4 July 2014, Kimman v Commission, T‑644/11 P, EU:T:2014:613, paragraph 45 and the case-law cited).
93 Lastly, it is apparent from paragraphs 73 to 75 above that the principles referred to above governing the pre-contentious procedure referred to in Article 90 of the Staff Regulations apply, mutatis mutandis, to the pre-contentious procedure provided for in Articles 41 and 42 of the Conditions of Employment and in Article 8.1 of the ECB Staff Rules, which has the same purpose, namely to seek an amicable settlement of conflicts between the administration and an official or agent.
94 In the first place, contrary to what is contended by the ECB, the special appeal brought by the applicant on the basis of Article 8.1.6 of the ECB Staff Rules sets out with sufficient clarity its subject matter and the grounds on which it is based.
95 The letter of 29 January 2010 sent by the applicant’s adviser to the President of the ECB seeks clearly to challenge the contested decision of 24 November 2009 on the ground that the administrative inquiry procedure prior to the adoption of that decision was not transparent, that insufficient reasons were stated for that decision, that it disregarded the duty to have regard for the welfare of staff and the duty to provide assistance and that it was adopted following an incomplete inquiry and without it having been established that the ECB had actually taken cognisance of the inquiry report.
96 Consequently, by letter of 29 January 2010, the applicant challenged the contested decision of 24 November 2009 by relying on a series of claims calling into question both the substantive legality of that decision and its formal validity, including its procedural aspects.
97 Accordingly, contrary to what is contended by the ECB, the special appeal sufficiently satisfies the requirements of precision referred to in the case-law cited in paragraph 89 above.
98 In the second place, the ECB wrongly contends that the time limit laid down for the lodging of the special appeal was not respected in the present case on the ground that the essential aspects of the applicant’s argument were set out in annexes to the special appeal, which were submitted four days after that time limit had passed.
99 In the present case, first, it is not disputed that the special appeal was lodged within the two-month period provided for in Article 8.1.6 of the ECB Staff Rules. Second, as stated in paragraph 97 above, the special appeal was validly lodged despite the fact that its annexes were submitted late.
100 Notwithstanding the foregoing, it should be noted that the annexes referred to above are not purely probative, as they supplement the applicant’s arguments in support of the special appeal. Thus, in so far as those annexes were submitted after the time limit for lodging the special appeal had passed, the arguments that they contain were put forward late and the ECB did not err in law by refusing to take them into account.
101 In the third place, as regards the alleged lack of consistency between the special appeal and the application, first, it is apparent from paragraphs 95 and 96 above that, in the special appeal, the applicant put forward pleas in law and arguments seeking to challenge both the substantive legality of the contested decision of 24 November 2009 and the formal validity of that decision. Second, the fact remains that all the pleas in law and arguments relied on in support of the present action are closely linked to the pleas in law and arguments relied on in support of the special appeal.
102 Thus, following the case-law referred to in paragraph 92 above, it must be held that the rule of consistency has not been infringed in the present case.
103 In the light of the foregoing, the pleas of inadmissibility alleging failure to follow the pre-contentious procedure, failure to observe the time limit applicable to special appeals and infringement of the rule of ‘consistency between the complaint and the action’ must be rejected.
Absence of any act having adverse effect
104 The ECB maintains that the contested decision of 24 November 2009 does not modify the legal position of the applicant and, therefore, does not constitute an act adversely affecting her.
105 The applicant disputes that plea of inadmissibility.
106 It is apparent from the case-law that a decision rejecting a request for assistance in connection with alleged psychological harassment constitutes an act adversely affecting the applicant (see judgment of 16 December 2015, De Loecker v EEAS, F‑34/15, EU:F:2015:153, paragraph 42 and the case-law cited).
107 The contested decision of 24 November 2009 concluding the administrative inquiry and rejecting the applicant’s request for assistance therefore constitutes an act adversely affecting her.
108 Accordingly, the ECB’s plea of inadmissibility must be rejected.
Admissibility of the additional claim for compensation and of the new plea relied on by the applicant during the referral back procedure
109 In her supplementary written observations of 27 April 2016, the applicant claimed that the ECB should be ordered to pay her additional compensation of EUR 20 000. That claim is based on a new plea in law alleging, in essence, infringement of the right to an effective judicial remedy and of the applicant’s rights of defence as a result of the destruction of the contested minutes.
110 In its reply of 14 December 2017 to a written question put by the Court, the ECB raised a plea of inadmissibility in respect of that new plea. In addition, in its reply of 16 January 2019 to a written question put by the Court, the ECB raised a plea of inadmissibility in respect of the new claim for compensation. In that regard, it contends that the claim referred to above is by definition new, as it is apparent from paragraph 125 of the supplementary written observations of 27 April 2016 that the increase in the amount of the compensation initially sought is in order to ‘comply with [the original judgment] (paragraphs 42 to 44)’. Furthermore, it follows from paragraph 125 of the supplementary written observations of 27 April 2016 that that claim is linked to the destruction of the inquiry file and, therefore, concerns an act which is distinct from that against which the original action was brought.
111 In her reply of 18 January 2019 to a written question put by the Court, the applicant submitted that the increase in the amount of compensation did not constitute a new claim. She submits that the destruction of the inquiry file increased her feeling of injustice given that she suffered upon learning that the inquiry file had been destroyed in accordance with the ECB document retention plan. In addition, in essence, that destruction infringes her procedural rights and, in particular, her rights of defence, was carried out in disregard of the judgment on appeal and prevents the Court from effectively exercising its judicial review function.
112 According to settled case-law, parties are not entitled to submit new claims after the application has been lodged and, a fortiori, after the judgment referring the case back to the first instance, as otherwise the subject matter of the dispute as determined by the form of order sought in the application would be modified (see, to that effect, judgments of 21 March 1996, Chehab v Commission, T‑10/95, EU:T:1996:42, paragraph 66, and of 14 September 2011, Marcuccio v Commission, T‑236/02, EU:T:2011:465, paragraphs 88 and 215).
113 As a preliminary point, it should be noted that, in its reply of 14 December 2017 to a written question put by the Court, the ECB stated that the destruction of the inquiry file took place on 23 December 2014.
114 Furthermore, the fact remains that, first, the claim for a EUR 20 000 increase in the amount of compensation sought in the application was made in the supplementary written observations of 27 April 2016, that is to say, after the judgment on appeal and, second, that claim arises from the destruction of the inquiry file by the ECB and not from the contested decisions of 24 November 2009 and 24 March 2010, which predate it. It is therefore a new claim which, pursuant to the case-law referred to in paragraph 112 above, is inadmissible.
115 Furthermore, the additional claim for compensation referred to in paragraph 109 above does not relate to damage arising from the contested decisions of 24 November 2009 and 24 March 2010, but to an error allegedly made by the ECB. The applicant, however, has not stated that she submitted, in that regard, a request for administrative review followed by a complaint or a special appeal in accordance with Article 41 of the Conditions of Employment and Article 8.1 of the ECB Staff Rules (see paragraph 74 above). Consequently, the additional claim for compensation is also inadmissible for that reason (see, to that effect and by analogy, judgment of 14 February 2019, L v Parliament, T‑91/17, not published, EU:T:2019:93, paragraph 68).
116 Accordingly, the additional claim for compensation of EUR 20 000 must be rejected as inadmissible.
117 In the light of the foregoing, there is no need to rule on the new plea in law alleging infringement of the right to an effective judicial remedy and infringement of the applicant’s rights of defence as a result of the destruction of the original inquiry file, or on its admissibility, also challenged by the ECB in its reply of 14 December 2017 to a written question put by the Court, inasmuch as that plea was relied on in support of the additional claim for compensation of EUR 20 000, which is inadmissible (see, to that effect and by analogy, judgment of 19 July 2017, DD v FRA, T‑742/15 P, not published, EU:T:2017:528, paragraph 36).
Admissibility of the documents sent voluntarily by the ECB on 9 March 2017
118 In a letter of 2 May 2017, the applicant challenged the admissibility of the 30 sets of minutes sent on 9 March 2017, dated and signed in 2016. According to her, those documents constitute new evidence offered that was submitted late without any justification by the ECB and is therefore inadmissible in accordance with Article 85 of the Rules of Procedure. In that regard, first, she submits that it is apparent from the dates on which those minutes were signed by the witnesses that the ECB had been in possession of those documents before it submitted its supplementary observations on 30 June 2016. Consequently, she claims that the submission of the 30 sets of minutes sent on 9 March 2017, which occurred after the submission of the supplementary observations on 30 June 2016, is not justified, stating that those minutes were submitted voluntarily and not in reply to a measure of organisation of procedure by the Tribunal. Second, she states, in essence, that, since the judgment on appeal, the ECB knew that it should have submitted the contested minutes to the Civil Service Tribunal and that it had several months to do so (from September 2015 to February 2016).
119 The ECB takes issue with the applicant’s arguments. First, it contends that, in essence, Article 85 of the Rules of Procedure is not applicable in the present case, as it did not produce ‘evidence’ within the meaning of that article, but documents for the purpose of complying with the judgment on appeal and, therefore, in order to enable the Civil Service Tribunal to verify ‘that there was no contradiction between the inquiry report and the [contested] minutes’. According to the ECB, the reference to Article 85 of the Rules of Procedure is therefore ineffective in the present case. Second, even assuming that Article 85 of the Rules of Procedure applies to the circumstances of the present case, which the ECB disputes, the submission of the documents in question would not be late, and would be fully justified. In that regard, it maintains that, on 19 January 2016, at the beginning of the referral back procedure, it had sent to the Civil Service Tribunal the 45 sets of minutes of the hearings of the witnesses examined in the administrative inquiry. Furthermore, it submitted a regularised version of those testimonies within the time limit set for that purpose by the Civil Service Tribunal. However, due to the fact that the present case was transferred to the General Court, the latter requested, by way of a measure of organisation of procedure, that the ECB provide it with a non-confidential version of the documents that it had already sent to the Civil Service Tribunal, as the Court decided to place none of the documents previously sent on the file. The ECB therefore contends that it has complied with the Court’s request referred to above.
120 Under Article 85 of the Rules of Procedure, evidence is to be submitted in the first exchange of pleadings. However, under Article 85(3) of those rules, the main parties may, exceptionally, produce or offer further evidence before the oral part of the procedure is closed or before the decision of the Court to rule without an oral part of the procedure, provided that the delay in the submission of such evidence is justified.
121 As a preliminary point, the documents referred to in the plea of inadmissibility raised by the applicant, that is to say, the 30 sets of minutes sent on 9 March 2017, were submitted after the dissolution of the Civil Service Tribunal on 1 September 2016 (see paragraph 53 above).
122 Accordingly, pursuant to Article 3 of Regulation 2016/1192, the admissibility of the 30 sets of minutes sent on 9 March 2017 must be assessed with regard to the provisions of the Rules of Procedure (see paragraphs 53 and 54 above).
123 Moreover, in the first place, the ECB is not justified in claiming that the 30 sets of minutes sent on 9 March 2017 were submitted in order to comply with the judgment on appeal, with the result that they do not constitute ‘evidence’ within the meaning of Article 85 of the Rules of Procedure.
124 In that regard, it should be noted that, in order to comply with the judgment on appeal, the ECB forwarded to the Civil Service Tribunal the 45 sets of minutes sent on 18 February 2016 (see paragraph 31 above).
125 By contrast, the 30 sets of minutes sent on 9 March 2017 were submitted more than one and a half years after the judgment on appeal in order to refute the argument, relied on by the applicant in her supplementary written observations of 27 April 2016, alleging, in essence, that the 45 sets of minutes sent on 18 February 2016 were not authentic and had no evidential value on the ground that they were not signed or dated.
126 The 30 sets of minutes sent on 9 March 2017 therefore constitute evidence offered within the meaning of Article 85 of the Rules of Procedure.
127 Accordingly, the ECB’s argument must be rejected.
128 In the second place, the ECB contends that the 30 sets of minutes sent on 9 March 2017 were, in any event, submitted in order to comply with a measure of organisation of procedure on the part of the Court, which requested that the ECB provide a non-confidential version of the documents that it had previously sent to the Civil Service Tribunal.
129 By way of a measure of organisation of procedure of 16 February 2017 (see paragraph 41 above), the Court requested the ECB to state whether the confidential and non-confidential versions of the 45 information documents annexed to the letter of 22 July 2016 contained confidential information with regard to the applicant and, if that was the case, to withdraw voluntarily the documents referred to above and to submit to it only one version of those documents that could be served on the applicant.
130 Contrary to what is contended by the ECB, the Court, by way of that measure of organisation of procedure, did not request the submission of the 30 sets of minutes sent on 9 March 2017.
131 The ECB’s argument is therefore factually incorrect and must be rejected.
132 In the third place, it should be noted that the 30 sets of minutes sent on 9 March 2017 constitute evidence offered, first, after the present case had been transferred to the General Court (see paragraph 121 above) and, second, before the decision of the General Court to rule without an oral part of the procedure.
133 Consequently, in accordance with Article 85(3) of the Rules of Procedure, the ECB was still able to offer new evidence provided that the delay in the submission of such evidence was justified (see paragraph 120 above).
134 In that regard, first of all, it should be noted that, in the letter of 22 July 2016, the ECB stated that it had annexed to that letter, first, the confidential and non-confidential versions of the 45 information documents requested by the Civil Service Tribunal by way of a measure of organisation of procedure of 15 July 2016 and, second, other documents, including new copies of the contested minutes, dated and signed in 2016 by a certain number of witnesses. In that letter, the ECB stated that it had not been able to submit those new copies of the contested minutes at an earlier stage, as it had taken it a considerable amount of time to find the witnesses concerned, adding that some of them no longer worked for the ECB or were no longer in active service and that one witness was even deceased. The ECB also informed the Court that it was still awaiting responses from a number of witnesses and that it therefore reserved the right subsequently to submit other signed copies of the contested minutes.
135 Next, notwithstanding the voluntary withdrawal by the ECB of all the documents annexed to its letter of 22 July 2016 (see paragraphs 42 and 129 above), that letter was placed on the file without its annexes (see paragraph 43 above) and sent to the applicant, who was therefore not unaware of its content.
136 Lastly, it follows implicitly, but necessarily, from the ECB’s letter of 9 March 2017 that the 30 sets of minutes sent on 9 March 2017 are among those which had previously been annexed to the letter of 22 July 2016, minutes which had not been placed on the case file or served on the applicant by reason of their voluntary withdrawal by the ECB, with the ECB having explained in the letter of 22 July 2016 why it had not been able to send those documents to the Court at an earlier stage (see paragraph 134 above).
137 Regard being had to the foregoing, the applicant is not justified in claiming that the late submission of the new evidence offered, which was annexed to the ECB’s letter of 9 March 2017, was not validly justified, as the ECB explained the reasons for that late submission in the letter of 22 July 2016 (see paragraph 134 above).
138 That conclusion cannot be called into question by the fact that the ECB was in possession of a portion of the 30 sets of minutes sent on 9 March 2017 before the submission of its supplementary observations of 30 June 2016. First, as is stated by the ECB (see paragraph 134 above), it was still awaiting responses from a number of witnesses. Second, pursuant to Article 85(3) of the Rules of Procedure, the ECB could offer evidence until the decision of the Court to close the oral part of the procedure or before the decision to rule without an oral part of the procedure, those decisions having still not been taken on 9 March 2017.
139 In the light of the foregoing, the plea of inadmissibility raised by the applicant must be rejected.
Substance
Authenticity, validity and evidential value of the minutes of the hearings of witnesses submitted by the ECB in the referral back procedure
140 In the supplementary written observations of 27 April 2016 and in the letter of 2 May 2017, the applicant disputed the legal status of the non-confidential version of the 45 sets of minutes sent on 18 February 2016 and the 30 sets of minutes sent on 9 March 2017. In the first place, as regards the 45 sets of minutes sent on 18 February 2016, the applicant claims that, without a signature, there is absolutely no certainty as to the authenticity of the statements recorded in those minutes. According to the applicant, the testimonies need to be signed in order to ensure their authenticity. In that regard, she relies, by analogy, on Article 73 of the Rules of Procedure, which provides that the minutes relating to the statements of witnesses heard by the Court are to be signed by those witnesses. Furthermore, she adds that electronic files are easy to manipulate. Lastly, she claims that those documents are, in any event, incomplete, as they have been sent without their possible annexes.
141 In the second place, as regards the 30 sets of minutes sent on 9 March 2017, first, the applicant claims that there is, in the present case, a presumption against the ECB in accordance with the maxim ‘omnia praesumuntur contra spoliatorem’, that is to say, all things are presumed against the individual who destroys evidence. Thus, it is for the ECB itself to bear the consequences of its inability to produce the missing evidence, regard being had to the fact that the applicant herself is not in a position to produce that evidence. In that regard, the applicant relies, by analogy, on the solution enshrined in the judgment of 8 July 2004, Mannesmannröhren-Werke v Commission (T‑44/00, EU:T:2004:218, paragraphs 49, 342 and 343). Second, she submits that the EU Courts must base their decisions solely on the evidence which has been disclosed. Third, she submits that the 30 sets of minutes sent on 9 March 2017 raise strong concerns (i) as to the way they have been obtained and (ii) as to their value as ‘minutes of the hearing of witnesses’, as they are anonymous and without a readable signature and around half of the contested minutes are missing, that half being positive for the applicant or including strong criticism of her managers.
142 The ECB disputes the applicant’s arguments. First of all, having initially claimed that the original inquiry file, including the contested minutes, had been destroyed in accordance with the ECB document retention plan, the ECB admitted, in its reply of 14 December 2017 to a written question put by the Court, that that destruction, which took place on 23 December 2014, was due to human error. However, according to the ECB, the effect of that error is limited, as it has retained the electronic version of the contested minutes. Furthermore, the ECB alleges, in essence, that the applicant unreasonably insinuates that it acted mala fide in submitting false or altered evidence in order fraudulently to interfere with the course of justice and obtain a favourable judgment. The applicant, it argues, thereby unduly seeks to impose on it the burden of proving that the documents provided are valid, although, as part of the evidence submitted to the Court, those documents benefit from a presumption of validity. Furthermore, the applicant’s argument raises the question of whether she has a legal interest in bringing proceedings, as her view amounts to preventing the Court from carrying out a verification which it held is necessary and which, at this stage, it needs to carry out itself.
143 It should be pointed out that it is not apparent from Circular No 1/2006 or from any other document in the file that the minutes of the hearings of the witnesses examined during an administrative inquiry conducted within the ECB must be signed and dated in order to be valid; Article 6(4) of Circular No 1/2006 provides only that the witnesses heard in an administrative inquiry are to sign the minutes of their hearing.
144 In any event, in the light of the fact that the originals of the contested minutes have been destroyed by the ECB and a signed and dated electronic copy of those minutes has not been retained, the question that arises is not so much whether those minutes are valid, but rather whether they have evidential value and whether the testimonies that they contain are authentic.
145 In that regard, in the first place, it should be borne in mind that the 45 sets of minutes sent on 18 February 2016 are not dated or signed. In the second place, as regards the 30 sets of minutes sent on 9 March 2017, which were dated and signed in 2016, first, there was a very significant lapse of time of around eight years between the hearings of the witnesses and the signing of the minutes by those witnesses. Second, some witnesses who signed, in 2016, the 30 sets of minutes sent on 9 March 2017 expressed reservations. Third, one witness dated the copy of the minutes of the corresponding hearing ‘1962’ instead of ‘2016’. Fourth, the 30 sets of minutes sent on 9 March 2017 have been submitted in a non-confidential version which does not make it possible to verify whether the persons who signed them in 2016 correspond to those who were actually heard during the administrative inquiry.
146 In addition, as the applicant essentially claims, relying, first, on the presumption of ‘omnia praesumuntur contra spoliatorem’, that is to say, the negative presumption against the individual who destroys evidence, and, second, on the obligation on the part of the ECB, which arises from the judgment of 8 July 2004, Mannesmannröhren-Werke v Commission (T‑44/00, EU:T:2004:218), to bear the consequences of its inability to submit the contested documents, there is doubt as to the authenticity of the 45 sets of minutes sent on 18 February 2016 and the 30 sets of minutes sent on 9 March 2017.
147 In the light of the destruction of the original inquiry file and the considerations set out in paragraph 145 above, the view must be taken that the ECB has not removed all doubt as to the authenticity of the copies of the contested minutes submitted in the present referral back procedure.
148 However, the minutes submitted by the ECB in the referral back procedure are not entirely bereft of evidential value in that they constitute at least prima facie evidence of the content of the testimonies given during the administrative inquiry. Moreover, in the present referral back procedure, the applicant has submitted observations on the basis of the witness statements contained in the 45 sets of minutes sent on 18 February 2016 and in the 30 sets of minutes sent on 9 March 2017 for the purpose of challenging the conclusions of the inquiry report.
149 Lastly, it is necessary to reject the ECB’s argument that the consequences of the wrongful destruction of the contested minutes are mitigated by the fact that the electronic version of the inquiry file, including the unsigned and undated electronic copies of the contested minutes, has not been deleted and continues to exist.
150 First, the ECB is unable to show that the undated and unsigned electronic copies of the contested minutes which it has retained are in all points identical to the originals of the contested minutes which it has destroyed (see paragraphs 145 to 147 above).
151 Second, the ECB was aware that the applicant, upon receipt of the draft inquiry report, had requested that the contested minutes be sent to her, that she had disputed, in her special appeal, the failure to send those documents, that she had filed an application for a measure of organisation of procedure with the Civil Service Tribunal for the purpose of obtaining those documents and that she had disputed, in her appeal before the Court, the Civil Service Tribunal’s refusal to accede to that application. Thus, the destruction, albeit due to error, of the contested minutes during the appeal proceedings, without the ECB taking care beforehand to inform the Court of that destruction, constitutes conduct which is incompatible with the principle of good administration and, more specifically, with the duty of care and diligence imposed on the administration and which cannot be remedied by the retention of an undated and unsigned electronic copy of the contested minutes.
152 However, the failure by the ECB to comply with its duty of care and diligence referred to in paragraph 151 above cannot lead, in the present case, to the annulment of the contested decisions of 24 November 2009 and 24 March 2010, which predate the destruction of the contested minutes by the ECB (see paragraph 114 above).
153 In the light of the foregoing, it is appropriate to take into account the 45 sets of minutes sent on 18 February 2016 and the 30 sets of minutes sent on 9 March 2017, as they constitute prima facie evidence of the testimonies collected during the administrative inquiry.
The first plea, alleging, in essence, infringement of the right to be assisted by a lawyer, breach of Article 6(5) and Article 7(1) and (3) of Circular No 1/2006, breach of the obligation to state reasons, breach of Article 3(1) of the Rules of Procedure of the Executive Board of the ECB and breach of Articles 51 and 52 of the Conditions of Employment
154 The applicant contends that the inquiry report is based on evidence compiled during the administrative inquiry and makes frequent reference to interviews conducted by the panel, without any further information, and to the content of the witness statements to which she did not have access. Accordingly, first, the applicant alleges a breach of Article 6(5) of Circular No 1/2006 in that the inquiry report served on her did not include copies of all the documents and all the minutes of hearings held during the administrative inquiry. In addition, she submits that Article 7(1) and (3) of Circular No 1/2006 confers on all those concerned by an administrative inquiry internal to the ECB the right to express their point of view on that inquiry and to correct any inaccuracies. Furthermore, the exercise of those rights is not limited to what is covered in the draft inquiry report or the final inquiry report. The applicant thus submits that she should have had access to all the evidence compiled during the administrative inquiry in order to defend her reputation and to demonstrate that the rumours damaging her reputation were without foundation. Moreover, there is no provision which requires that the testimonies collected during the administrative inquiry have to be confidential. In addition, Article 7(1) and (3) of Circular No 1/2006 would breach the general principle of the rights of the defence if it had to be interpreted as meaning that the rights laid down therein are limited to access to the draft inquiry report and the inquiry report. Lastly, the applicant maintains, invoking her rights of defence, that her right to receive the full assistance of her lawyers was disregarded in that the panel ignored those lawyers in making her, personally, the sole addressee of the replies to their letters.
155 Second, the applicant claims that the contested decision of 24 November 2009 states insufficient reasons in that it makes reference to the final inquiry report, which does not in itself, without being accompanied by the inquiry file, make it possible to understand that decision.
156 Third, the applicant submits that the Executive Board of the ECB received an inquiry report which did not include copies of the evidence compiled during the administrative inquiry, in particular the contested minutes, and that it therefore took the contested decision of 24 November 2009 on the basis of an incomplete file, contrary to Article 6(5) of Circular No 1/2006.
157 Fourth, the applicant points out that the Executive Board of the ECB received the final inquiry report on the very day it took the contested decision of 24 November 2009. The late communication of that report, she argues, breached Article 3(1) of the Rules of Procedure of the Executive Board of the ECB, which provides that documents are to be made available to the members of that body at least two working days before it meets.
158 The ECB disputes those various claims.
159 As a preliminary point, Article 76(d) of the Rules of Procedure provides that the application must contain the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law. In the present case, it must be stated that, in the application, the applicant mentions a breach of Articles 51 and 52 of the Conditions of Employment but does not submit a distinct argument in support of such a breach. The claim alleging breach of Articles 51 and 52 of the Conditions of Employment must therefore be rejected as being, in any event, manifestly inadmissible.
160 Furthermore, it should be recalled that the claims alleging, first, infringement of the rights of the defence, including the right to be heard, and, second, infringement of the adversarial principle, were rejected once and for all in the judgment on appeal and, therefore, do not form part of the subject matter of the dispute following referral back (see paragraph 62 above).
161 Accordingly, it is necessary to examine first, the claim alleging breach of the obligation to state reasons, second, the claim alleging infringement of the right to be assisted by a lawyer, third, the claim alleging breach of Article 7(1) and (3) of Circular No 1/2006, fourth, the claim alleging breach of Article 6(5) of Circular No 1/2006 and, fifth, the claim alleging breach of Article 3(1) of the Rules of Procedure of the Executive Board of the ECB.
Claim alleging breach of the obligation to state reasons
162 The applicant contends that access to the inquiry file was necessary in order to ensure compliance with the obligation to state reasons. The contested decision of 24 November 2009 refers to the inquiry report, which had been served on the applicant at the same time as that decision. However, she claims that that inquiry report is not sufficient to allow her to understand the contested decision without having had access to the inquiry file or, in particular, to the contested minutes.
163 In her reply of 14 December 2017 to a written question put by the Court, the applicant added that, in her view, it follows from the judgment on appeal that the inquiry report cannot be regarded as full, as containing an account of the facts compiled during the administrative inquiry, or as particularly full and informative in itself. Given that the inquiry report constitutes the statement of reasons on which the contested decision of 24 November 2009 is based, the reasons set out in that report are not sufficient to enable the Court to review that decision or the applicant to dispute it. Furthermore, she submits that, in view of the fact that the inquiry report does not include any element to substantiate the personal perceptions expressed by the witnesses heard and does not assess whether or not those perceptions are consistent with other available evidence, no reasons are given for the negative perceptions relating to her and her work. Accordingly, the reasons given for the inquiry report’s conclusions, which are based on those perceptions, are insufficient.
164 The ECB disputes the applicant’s arguments.
165 According to settled case-law, the adequacy of the statement of reasons must be determined in accordance with the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressee may have in obtaining explanations (see judgment of 8 December 2005, Reynolds v Parliament, T‑237/00, EU:T:2005:437, paragraph 93 and the case-law cited). Moreover, the reasons given for a decision are sufficient if the measure forming the subject matter of the action was adopted in circumstances which are known to the official concerned and enable him or her to understand its scope (see judgment of 8 December 2005, Reynolds v Parliament, T‑237/00, EU:T:2005:437, paragraph 97 and the case-law cited).
166 In the present case, first of all, the contested decision of 24 November 2009 was adopted following an inquiry opened in order to establish whether the claims made by the applicant in the complaint of 8 April 2008 were well founded, which involved an examination, by the panel, of the factual circumstances alleged by the applicant. The circumstances in which the contested decision of 24 November 2009 was adopted were thus known to the applicant.
167 Next, the applicant had access, as from the pre-contentious stage, to the draft inquiry report and subsequently to the final version of that report. The inquiry report sets out the reasons which led the panel to reject the claims made in the complaint.
168 In addition, the applicant was able to challenge the conclusions of the inquiry report, even in the absence of the contested minutes, by relying, in particular, on the incomplete nature of that report in that it was based on partial information and partial accounts of facts.
169 Lastly, first, contrary to what is claimed by the applicant, the inquiry report does not contain any negative conclusions on her work, as the panel’s mandate was not to assess the quality of that work (see page 51 of the inquiry report). Second, it is apparent, in particular, from page 51 of that report that some witnesses stated to the panel that the applicant had a certain reputation on account of her frequent absences, her delays in delivering her work and her being a colleague who was difficult to manage. The inquiry report does not state whether those statements represented the personal perception of the witnesses heard or whether they were rumours heard by those witnesses. However, the fact remains that the reasons underlying that reputation emerge clearly from the inquiry report. Moreover, it is apparent from the applicant’s response of 14 December 2017 to a written question put by the Court that what she disputes in this part of the first plea is not so much an absence of or inadequate statement of reasons in the inquiry report, but rather the inadequacy of the examination carried out by the panel, which did not check the consistency between the perceptions of the witnesses heard and the other evidence in the inquiry file (see paragraph 163 above).
170 In the light of the foregoing, the claim alleging breach of the obligation to state reasons on account of the failure to send to the applicant the full inquiry file and, in particular, the disputed minutes must be rejected.
Claim alleging infringement of the right to be assisted by a lawyer
171 According to the applicant, the ECB infringed her fundamental right to be assisted by her lawyer during the inquiry procedure, a right which is one of her rights of defence.
172 Given that the right to be assisted by a lawyer is one of the rights of defence and that the judgment on appeal rejected once and for all the claim alleging that the rights of defence had been infringed (see paragraphs 20 and 60 above), the applicant’s claim alleging breach of the right to be assisted by a lawyer must also be rejected.
173 In any event, as the inquiry report is only a preparatory measure intended to clarify the facts, as it does not constitute an act adversely affecting the line managers or, in particular, the applicant, as the inquiry procedure is administrative and not judicial in nature, and as the applicant had the status of complainant and not that of a person who is the subject of the administrative inquiry, the applicant cannot claim that she had a right, forming part of her rights of defence, to be assisted by her lawyer during the inquiry procedure. The fact that she could not be assisted by her lawyer during the administrative inquiry does not therefore mean that that inquiry or, consequently, the contested decision of 24 November 2009 is unlawful (see, to that effect, judgment of 13 December 2012, Donati v ECB, F‑63/09, EU:F:2012:193, paragraphs 137 to 139).
174 In the light of the foregoing, the claim alleging infringement of the right to be assisted by a lawyer must be rejected.
Claim alleging breach of Article 7(1) and (3) of Circular No 1/2006
175 The applicant takes the view that the procedural rights which she claims to enjoy pursuant to Article 7(1) and (3) of Circular No 1/2006 have been breached in that the full administrative inquiry file was not sent to her and in that, as a result, she was unable to present her view on all the facts which concerned her.
176 The ECB contends that that claim should be rejected.
177 Article 7(1) and (3) of Circular No 1/2006 provides:
‘1. ECB employees that will be affected by the administrative inquiry shall be informed unless this would be harmful to the administrative inquiry. In any event, conclusions referring to persons by name may not be drawn before the persons have been given the opportunity to express their views on all the facts which concern them.
…
3. ECB employees who are the subject of the administrative inquiry shall be:
(a) informed by the person conducting the inquiry, or the panel, prior to the submission of the reasoned [inquiry] report, of the content of the alleged breach of professional duties and granted access to documents related to the allegations made against them which disclose facts important for the exercise of their rights of defence; and
(b) granted an opportunity to present their view and add their comments on the conclusions referring to them to ensure the completeness of the inquiry file; the latter shall be included in the reasoned [inquiry] report; and
(c) allowed to seek the assistance of a staff representative.
ECB employees or other individuals involved in the administrative inquiry shall also be granted access to all facts which refer to their person, as well as personal data in order to ensure their completeness and accuracy, and shall have the right to obtain from the lead inquirer acting as the controller the rectification without delay of any such inaccurate or incomplete personal references.’
178 First, it should be noted that Article 7(1) and (3) of Circular No 1/2006 lays down the right, for the members of staff of the ECB involved in an administrative inquiry within the meaning of that circular, to present their views.
179 Second, it is clear from the wording of the first subparagraph of Article 7(3) of Circular No 1/2006 that that provision concerns only employees of the ECB who are the subject of the administrative inquiry and not those who initiate such an inquiry. By contrast, Article 7(1) of Circular No 1/2006 and the second subparagraph of Article 7(3) of that circular concern, more broadly, all those who are affected by an administrative inquiry or who are involved in such an inquiry.
180 Third, it must be stated that the applicant was not only involved in the administrative inquiry conducted by the ECB for the purpose of adopting a decision on her complaint, but was also affected by the result of that inquiry (see paragraphs 106 and 107 above).
181 Consequently, the applicant is justified in claiming that, pursuant to Article 7(1) and the second subparagraph of Article 7(3) of Circular No 1/2006, she had the right to express her views on all the facts and personal data concerning her in order, if necessary, to have those data rectified before any conclusion relating to her person was adopted.
182 However, in the present case, the applicant was not in a position to make known her view on all the facts and data concerning her as she did not have access to at least a non-confidential version or a non-confidential summary of the contested minutes and documents annexed thereto before the adoption of the contested decisions of 24 November 2009 and 24 March 2010.
183 The applicant is therefore justified in invoking a breach of Article 7(1) and of the second subparagraph of Article 7(3) of Circular No 1/2006.
184 However, according to settled case-law, an infringement of procedural rights justifies the annulment of a decision adopted at the end of a procedure only if, had it not been for such an irregularity, the outcome of that procedure might have been different (judgment of 10 September 2013, G. and R., C‑383/13 PPU, EU:C:2013:533, paragraph 38; see, also, to that effect, judgment of 6 September 2012, Storck v OHIM, C‑96/11 P, not published, EU:C:2012:537, paragraph 80).
185 In the present case, it should be noted that, in the application and in the reply, the applicant limited herself to arguing that access to the contested minutes was necessary in order to enable her to defend her reputation by disputing the existence of rumours about her and the management’s criticism of her work mentioned in the inquiry report. Furthermore, in the referral-back procedure, the applicant presented arguments seeking, once again, to challenge the statements contained in the inquiry report and relating to her alleged bad reputation, in the light of the 45 sets of minutes sent on 18 February 2016 and the 30 sets of minutes sent on 9 March 2017. She also presented arguments in order to demonstrate that the administrative inquiry had been conducted in a biased manner. In that context, she claimed that it was apparent from the contested minutes that the panel had essentially investigated her and not her line managers, that the decision to interview witnesses with whom she had had disputes, in particular as a member of the Staff Committee, was open to criticism and that the responses of the witnesses concerning the difficult working environment within the department because of the line managers concerned had been ignored by the panel.
186 It was only in her reply of 15 July 2019 to a measure of organisation of procedure that the applicant expressly claimed, for the first time, that the content of the contested decision of 24 November 2009 might have been different had she been able to express her views on the draft inquiry report in the light of all the documents in the inquiry file. In that reply, she reiterated, in essence, the same arguments as those which she had already presented in her previous written pleadings and, in particular, in the supplementary written observations of 27 April 2016 (see paragraph 185 above).
187 In that context, first, as regards the statements of the witnesses heard in which negative or incorrect assessments had been made about the applicant and her work, it should be noted that, in her reply of 15 July 2019 to a measure of organisation of procedure, the applicant acknowledged that those statements had not been mentioned in the inquiry report and that that report did not examine her professional skills. Thus, assuming that the applicant had been able to challenge the criticism expressed by certain witnesses of her and her work, the content of the contested decisions of 24 November 2009 and 24 March 2010 would not have been different.
188 Second, as regards the allegation that the testimonies given confirm the circulation of negative views on and rumours concerning the applicant and that the panel did not investigate their source, it should be noted that the draft inquiry report stated that colleagues and line managers had ascertained that the applicant had a reputation in respect of her absences, her delays in delivering her work and her being a person difficult to work with. The applicant was therefore in a position to criticise that finding by arguing that it was based on rumours the merits of which had not been verified by the panel. Moreover, that is what the applicant did in her comments on the draft inquiry report, but this did not lead the panel to modify its conclusions.
189 Third, as regards the argument that, in essence, the panel demonstrated bias in particular in the selection of the witnesses heard, several of whom were in a conflict of interest with the applicant, it must be stated that the panel did not rely on the statements of those witnesses in order to conclude that the claims relied on in the complaint were unsubstantiated. Furthermore, it is apparent from page 46 of the draft inquiry report that the panel had also interviewed colleagues who stated that she had a ‘good reputation’ and who therefore were not prejudiced against her. In addition, in her comments on the draft inquiry report, the applicant claimed that the negative views expressed about her by certain colleagues interviewed was a reflection of subjective and biased views intended to harm her reputation and which were not supported in the annual appraisals. Despite that criticism, the conclusions of the inquiry report on the claims relied on in the complaint remained unchanged.
190 Fourth, as regards the allegation that the testimonies reveal that the working environment was different from that described in the inquiry report, it should be noted that the criticism made by certain witnesses of the managers concerned by the complaint cannot constitute evidence of the discrimination or harassment ostensibly suffered by the applicant. At most, they demonstrate that there was a general bad atmosphere in the department where the applicant worked and, in some cases, management problems of which the applicant was not the only one to have suffered the consequences.
191 Fifth, as regards the criticism concerning the panel’s assessments of her workload in 2006, which, according to the applicant, are based on the testimonies given, it must be noted that she was in a position to challenge those assessments in her comments on the draft inquiry report.
192 In the light of the foregoing, it has not been established that the content of the contested decisions of 24 November 2009 and 24 March 2010 might have been different had the applicant been able to express her views on the testimonies contained in the contested minutes before those decisions were adopted.
193 Accordingly, the applicant’s claim must be rejected.
Claim alleging breach of Article 6(5) of Circular No 1/2006
194 The applicant relies on a breach of Article 6(5) of Circular No 1/2006, inasmuch as the final inquiry report, which was sent both to her and to the Executive Board of the ECB, did not include copies of all the documents in the inquiry file, including the contested minutes. Accordingly, the applicant claims that she was unable to express her views on all facts concerning her and the Executive Board adopted a decision on the basis of an incomplete inquiry report.
195 The ECB contends that the applicant’s claim should be rejected. It takes the view that Article 6(5) of Circular No 1/2006 does not provide for the full inquiry file to be sent to the author of the complaint or to the Executive Board of the ECB. Thus, according to the ECB, the fact that the Executive Board did not receive the full inquiry file, which consists of 11 files, does not constitute a breach of Article 6(5) of Circular No 1/2006.
196 Article 6(5) of Circular No 1/2006 provides:
‘The person conducting an inquiry, or the panel, shall report regularly to the lead inquirer on the procedure’s development. … Copies of all relevant documents and minutes of hearings, including the voting’s results, on-the-spot searches or any other inquiry acts performed by the person conducting the inquiry or the panel, shall be annexed to the reasoned [inquiry] report.’
197 It is apparent from the wording of Article 6(5) of Circular No 1/2006 that the obligation to annex all the documents and minutes of hearings relevant to the inquiry report applies only to the ‘person conducting the inquiry’ and not to the witnesses, the complainant or the Executive Board of the ECB.
198 Accordingly, the alleged failure to send to the applicant and the Executive Board of the ECB all the documents and all the contested minutes with the reasoned inquiry report does not constitute a breach of Article 6(5) of Circular No 1/2006.
199 The applicant’s claim must therefore be rejected.
Claim alleging breach of Article 3(1) of the Rules of Procedure of the Executive Board of the ECB
200 According to the applicant, the fact that the Executive Board of the ECB received the final inquiry report on 17 November 2009, that is, on the same day as that on which it adopted the contested decision of 24 November 2009, constituted a breach of Article 3(1) of the Rules of Procedure of the Executive Board of the ECB and prevented the members of the Executive Board from taking proper cognisance of the final inquiry report and from taking a ‘proper’ decision.
201 The ECB contends that the applicant’s claim should be rejected. First of all, it argues that the circumstances criticised by the applicant did not prevent the Executive Board from taking note of the panel’s conclusions and from adopting, on the same day, the contested decision of 24 November 2009. Next, it maintains that the time limit set by Article 3(1) of the Rules of Procedure of the Executive Board of the ECB is not a matter of public policy. Lastly, it claims that, in the absence of the alleged irregularity, the content of the contested decision of 24 November 2009 would not have been any different.
202 Under Article 3(1) of the Rules of Procedure of the Executive Board of the ECB, the documents related to the agenda ‘shall, in principle, be sent … to the members of the Executive Board at least two working days before the relevant meeting, except in emergencies, in which case the President shall act appropriately in view of the circumstances’.
203 In the present case, the person conducting the inquiry sent the final inquiry report to the Executive Board of the ECB on 17 November 2009, that is to say, on the same day as that on which the meeting of the Executive Board, during which the contested decision of 24 November 2009 was adopted, took place (see paragraph 9 above).
204 The final inquiry report was therefore not forwarded to the Executive Board of the ECB at least two working days before the meeting of 17 November 2009.
205 However, although it is possible to raise the question of the scope of the examination of the inquiry report carried out by the members of the Executive Board, in the light of the very short period between the receipt of the inquiry report and the meeting of the Executive Board of 17 November 2009, in order for a breach of the rules laid down by the Rules of Procedure of the Executive Board of the ECB to be capable of constituting a substantial irregularity of such a kind as to invalidate the decision of the Executive Board, the person concerned must show that, in the absence of that breach, the content of that decision might have been different (see, to that effect, judgments of 9 March 1999, Hubert v Commission, T‑212/97, EU:T:1999:39, paragraph 53; of 7 May 2008, Lebedef v Commission, F‑36/07, EU:F:2008:52, paragraph 57; and of 13 September 2011, Behnke v Commission, F‑68/10, EU:F:2011:135, paragraph 42). It is clear that that condition is not satisfied in the present case, as the applicant confines herself to surmising that, as the members of the Executive Board received the final inquiry report on the day of their meeting, they were unable to take proper cognisance of it before deciding on the conclusions to be drawn therefrom.
206 Accordingly, the applicant’s claim alleging breach of Article 3(1) of the Rules of Procedure of the Executive Board of the ECB must be rejected and, therefore, the first plea must be rejected in its entirety.
Second plea, alleging breach by the panel of its mandate
207 The applicant submits, in essence, that the panel did not correctly carry out its mandate in that, first, it failed to examine certain claims and facts which she had relied on in support of her complaint and, second, it discredited her by focusing on negative information in her regard. More specifically, first, she claims that the inquiry report contains no finding regarding the conduct of the Director-General DG‑P of which she had complained in particular. Second, the panel failed to look into whether there had been breaches of the ‘provisions of the Dignity at Work policy by DG Payments’. In particular, the panel assessed the conduct of the Director-General DG‑P only in connection with psychological harassment and not in connection with the note published by the ECB on its ‘Dignity at Work’ policy (‘the note on the Dignity at Work policy’). Third, the panel partially examined whether there had been psychological harassment by limiting its examination solely to allegations of offensive conduct, rumours and threats, thereby disregarding the overall situation and other decisions or conduct of her managers, with the result that the claim of psychological harassment does not appear to be adequately substantiated. Likewise, in dealing with the question relating to discrimination against the applicant because of her activities within the Staff Committee, the panel partially examined whether there had been an attack on the applicant’s dignity and discrimination within the ECB. Fourth, the panel merely verified whether there were rumours calling into question the applicant’s reputation without examining whether those rumours were based on facts and evidence, thereby refusing to recognise that those rumours constituted a form of psychological harassment. Fifth, the panel also breached its mandate in taking the view that it did not need to examine the allegations made against the ECB as an institution, the issue of the quality of the work done by the applicant or the medical documents. In particular, the panel erred in taking the view that it had no authority to assess the quality of the work done by the applicant, although it could have requested the assistance of experts on that point. Sixth, the panel failed to investigate the failure of a member of staff of the ECB to respect the confidentiality of a letter from the applicant’s adviser of 18 January 2008 which had been addressed to that member of staff and which the latter had disclosed to the Director-General DG‑P. The inquiry report confined itself to observing that that member of staff had forwarded that letter in his capacity as the ‘competent senior manager’. Seventh, the applicant takes the view that the inquiry report facilitated the spread of rumours about her, thus undermining her reputation.
208 The ECB contends that the applicant’s plea should be rejected.
209 As a preliminary point, it must be stated that certain arguments relied on by the applicant in support of the second plea are, in fact, in support of the third and fourth pleas and will therefore be examined solely in that context. That is true of the applicant’s argument that the panel partially examined whether there had been psychological harassment by limiting its examination solely to allegations of offensive conduct, rumours and threats, thereby disregarding the overall situation and other decisions or conduct of her managers, with the result that the claim of psychological harassment does not appear to be sufficiently substantiated (see paragraph 207 above). That argument seeks to demonstrate an error in the concept of psychological harassment applied by the panel and validated by the Executive Board of the ECB by way of the contested decision of 24 November 2009 and will therefore be examined in the context of the fourth plea. Furthermore, the argument, referred to in paragraph 207 above, that the panel failed to investigate a failure of a member of staff of the ECB to respect the confidentiality of a letter from the applicant’s adviser of 18 January 2008 which had been addressed to that member of staff and which the latter had disclosed to the Director-General DG‑P, an argument which seeks, in essence, to demonstrate the incomplete nature of the examination carried out by the panel, will be examined in the context of the third plea alleging, in essence, omissions and manifest errors of assessment vitiating the inquiry report and the contested decisions of 24 November 2009 and 24 March 2010.
210 In the first place, it is apparent from the letter of 30 May 2008, which was sent by the ECB to the applicant to inform her of the decision of the Executive Board to open an administrative inquiry, that the panel’s mandate was to clarify the facts and to establish whether or not there was sufficient evidence in support of the allegations made by the applicant relating to:
– ‘discrimination … on the grounds of gender, age, nationality and health conditions’ which she allegedly suffered;
– ‘discrimination … related to her Staff Committee membership’; and
– her allegations related to ‘a breach of the Dignity at Work policy, in particular by the management’ of the DG‑P, including ‘defamation, isolation, mobbing and intimidation’.
211 Furthermore, it is apparent from the inquiry report that the panel examined the claims relating to possible discrimination on the grounds of:
– the applicant’s membership of the Staff Committee, which was allegedly manifested in the appraisal of her work, in the determination of her salary and bonus payments and in the determination of her career opportunities;
– the applicant’s membership of the Staff Committee which was allegedly manifested by acts of harassment;
– her gender, her age and her nationality;
– her state of health.
212 Although it was formally structured exclusively by reference to discrimination, it is nonetheless apparent from the content of the inquiry report that the panel in fact considered whether there was sufficient evidence, not only of discrimination, but also of acts of defamation, isolation, psychological harassment and intimidation, or of acts constituting a breach by the DG‑P and, more specifically, by the Director-General DG‑P of the note on the Dignity at Work policy. The panel thus reviewed all the claims mentioned in the mandate given to it. However, that conclusion does not mean that the panel’s examination of all those claims was complete and that it did not fail to examine certain conduct or decisions. Those possible insufficiencies will be examined in the context of the third plea.
213 In the second place, contrary to what is claimed by the applicant, the panel examined whether the Director-General DG‑P had spread, or was the source of, the rumours about her concerning, in particular, her reputation. At page 2 of the inquiry report, it is stated that that director had made comments on the applicant’s bad reputation only during meetings held specifically to deal with the difficulties encountered by her and in the presence of persons bound by a duty of confidentiality.
214 Furthermore, the panel was not required to investigate whether the applicant’s colleagues were the source of those rumours because its mandate was to examine the merits of the applicant’s complaint directed against the acts of her line managers and not against those of her colleagues.
215 In the third place, contrary to what is claimed by the applicant without substantiation, the inquiry report does not discredit her solely because it records the witness statements and the conclusions in that report do not confirm the applicant’s accusations. Furthermore, it cannot be held that that report spreads rumours about the applicant, bearing in mind in that regard that the inquiry report is a confidential document.
216 In the fourth place, the mandate given to the panel required it to examine whether the applicant’s allegations against her line managers were well founded and not to assess her merits or her state of health. Moreover, as regards the latter issue, it should be stated from the outset that the effects of psychological harassment are assessed objectively in the sense that an impartial and reasonable observer, of normal sensitivity and in the same situation, would consider the conduct or act in question to be excessive and open to criticism (judgments of 16 May 2012, Skareby v Commission, F‑42/10, EU:F:2012:64, paragraph 65, and of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 78).
217 In the fifth place, in paragraph 65 of the application, the applicant claims that the panel failed to respect its mandate by failing to examine the allegations made against the ECB as an institution without, however, submitting any argument in support of that claim, thus preventing the Court from exercising its power of review. Moreover, first, it is apparent from the complaint that the discrimination, psychological harassment, offensive conduct and attacks on her dignity of which she claims to be the victim are the result of acts or omissions of her line managers and not of the ECB as an institution. Second, although the applicant sought to criticise the panel for failing to examine the claims set out in paragraphs 14 and 15 and in the first paragraph of paragraph 16 of the complaint seeking, in essence, to call into question the general attitude of the ECB towards the members of the Staff Committee (that is to say, the fact that the ECB prevented trade-union organisations from participating effectively in social dialogue by refusing to conclude collective agreements, the fact that there have been, in the ECB, several cases of harassment of members of the Staff Committee and, generally, a breach of the provisions on the time dispensations to be granted to staff representatives), it should be borne in mind that the applicant’s request was submitted on the basis of Article 41 of the Conditions of Employment, which provides that ‘members of staff may, using the procedure laid down in the Staff Rules, ask for an administrative review of complaints and grievances in respect of the consistency of actions taken in their individual cases’. Thus, the applicant’s complaint could not have the effect of validly bringing before the Executive Board, and even less so the panel, a request concerning acts of the ECB that were of a general and not of an individual nature.
218 Accordingly, the applicant’s argument and, therefore, the second plea must be rejected.
Third plea, alleging, in essence, omissions and manifest errors of assessment vitiating the inquiry report and the contested decisions of 24 November 2009 and 24 March 2010
219 By referring to omissions in the inquiry report, the applicant seeks, in essence, to demonstrate, first, the shortcomings in the examination carried out by the panel, which failed to assess certain conduct or certain decisions of her line managers in the light of her claims alleging discrimination and psychological harassment and, second, the existence of manifest errors of assessment resulting from the absence or inadequacy of the examination carried out by the panel.
220 Thus, the applicant’s plea is divided, essentially, into two parts, the first alleging the incomplete nature of the inquiry report serving as the basis for the contested decision of 24 November 2009, and the second alleging manifest errors directly vitiating the assessments contained in the inquiry report and the contested decisions of 24 November 2009 and 24 March 2010.
First part of the third plea, alleging the incomplete nature of the inquiry report
221 The applicant claims, in essence, that many important facts which she had alleged in support of her complaint, at least to describe the temporal sequence of events, are not included in the inquiry report, with the inquiry report having also failed to examine several key issues concerning the line managers against whom she had made allegations in her complaint.
222 The ECB disputes the applicant’s arguments. It also contests the admissibility of the arguments mentioned in paragraphs 76 and 77 of the application, which, in its view, are very vague and have not been explained.
223 It should be noted from the outset that, despite the fact that the arguments put forward in the application have not been set out in any great detail, the arguments mentioned in paragraphs 76 and 77 of the application are sufficiently clear and have been explained in greater detail in, inter alia, paragraphs 67, 83, 84, 87, 88, 95, 97 and 98 of the application. Accordingly, the plea of inadmissibility raised by the ECB must be rejected.
224 It is therefore necessary to examine the various omissions in the inquiry report alleged by the applicant.
– The contention that the panel failed to examine the claim relating to the lack of proper support given to the applicant in coping with her excessive workload (in particular the ECB’s refusal to recruit a part-time resource)
225 In its defence, the ECB raised a plea of inadmissibility in respect of the applicant’s argument on the ground of lis alibi pendens, as that argument had also been raised in Case F‑84/08, Cerafogli v ECB. Furthermore, it contended that the question of whether it was necessary to recruit a less experienced colleague had been addressed in the inquiry report.
226 As a preliminary point, it should be recalled that there is no longer any need to rule on the plea of inadmissibility referred to in paragraph 225 above, as the ECB stated in response to a written question put by the Court on 27 June 2019 that the situation of lis alibi pendens, which it disputed, had disappeared following the delivery of the judgment of 28 October 2010, Cerafogli v ECB (F‑84/08, EU:F:2010:134) (see paragraph 83 above).
227 Furthermore, it is apparent from the inquiry report that the panel examined the applicant’s claim alleging lack of support given to her by management in coping with her workload in its examination of the allegation of discrimination on the ground of her membership of the Staff Committee. First, the inquiry report refers to the applicant’s appraisals, in which reference is made to the difficulties which she had encountered in balancing her work for the department with that for the Staff Committee and to the fact that the panel did not find that that constituted evidence of a lack of specific support. Second, the inquiry report refers to the dispensation from service, which the Director-General DG‑P had granted to the applicant and which exceeded what was normally allowed. Third, the inquiry report mentions the fact that the Director-General DG‑P had agreed that the reduction in the applicant’s working time for medical reasons in March 2007 could be taken out of her working time in the MIS Division. Fourth, the inquiry report contains examples of arrangements agreed to by management to reduce the applicant’s workload.
228 Contrary to what is claimed by the applicant, the panel therefore examined the claim alleging a lack of proper support given to the applicant in coping with her excessive workload.
229 Accordingly, the applicant’s argument must be rejected.
230 However, that conclusion is without prejudice to the existence of a possible manifest error of assessment made by the panel with regard to the question of whether effective support was given to the applicant by the ECB’s management in the light of her allegedly excessive workload, a question that will be examined in the context of the second part of the present plea.
– The contention that the panel failed to take into account the circumstance that, first, all the applicant’s tasks had been removed from her by the Director-General DG‑P in March 2007 and had not been subsequently reassigned to her as communicated to her in May 2007 and, second, the Director-General DG‑P stated that she should leave the DG‑P, giving rise to uncertainty about her future career and the allocation of her tasks
231 The ECB submits, in essence, that the applicant’s argument does not establish the existence of a manifest error of assessment.
232 It is apparent from, inter alia, pages 8, 50, 54, 55 and 59 to 61 of the inquiry report that the panel examined the applicant’s allegations concerning the adjustments to her workload agreed to by her line managers and the decision that she be transferred to another department.
233 Contrary to what is claimed by the applicant, the inquiry report did not therefore fail to examine those points.
234 Accordingly, the applicant’s argument must be rejected.
– The contention that the inquiry report failed to examine the claim relating to the applicant’s isolation within the department
235 The ECB submits, in essence, that the applicant’s argument does not establish the existence of a manifest error of assessment.
236 It is apparent from pages 44 to 49 of the inquiry report that the claim relating to the applicant’s isolation within the department was examined by the panel, which found no indications that the isolation and social exclusion experienced by the applicant were the result of actions taken by the ECB’s management for that purpose.
237 Accordingly, the applicant’s argument must be rejected.
– The contention that the inquiry report failed to take account of the lack of an appraisal of the applicant’s performance in due time for 2007
238 The ECB submits, in essence, that the applicant’s argument does not establish the existence of a manifest error of assessment.
239 As a preliminary point, the argument alleging the lack of an appraisal of the applicant’s performance in due time for 2007 was relied on in the applicant’s complaint in support of the claim alleging discrimination suffered by her because of her activities within the Staff Committee and as an element of psychological harassment of which she had been a victim, as that argument is mentioned in support of point 1, under Title IV of the complaint, which refers to, inter alia, discrimination due to her work within the Staff Committee and ‘mobbing’ (harassment) (see page 13 of the complaint).
240 However, first, at page 40 of the inquiry report, which sets out the allegations on which the claim of psychological harassment relied on by the applicant is based, there is no mention of the delay in the latter’s appraisal for 2007. Second, the inquiry report makes reference to the delay in the appraisal for 2007 solely at pages 11, 25 (see footnote no 4) and 26 (see footnote no 6) without drawing any conclusions from that delay.
241 Consequently, the panel failed to examine whether the delay in the applicant’s appraisal for 2007 substantiated the applicant’s claims alleging discrimination, harassment and breach of the Dignity at Work policy.
242 Accordingly, the applicant is justified in alleging an omission in the inquiry report in that regard, an omission which is also indicative of the panel’s failure to examine the delay in the applicant’s appraisal for 2007.
243 The applicant’s argument must therefore be upheld.
– The contention that the panel failed to take into account the circumstance that the applicant had been refused a salary increase in 2007 because of her alleged unsatisfactory performance
244 The ECB submits, in essence, that the applicant’s argument does not establish the existence of a manifest error of assessment.
245 It should be noted that, first, the panel did not ignore the failure to grant the applicant a wage increase in 2007, as that fact is expressly mentioned in the inquiry report, in particular at page 32, where it is stated that the decision resulting from the annual salary and bonus review procedure (‘the ASBR’) for 2007 had been ‘annulled’ pending the outcome of the administrative inquiry into the claims made by the applicant.
246 Second, the panel did not examine the decision resulting from the ASBR for 2007 not to increase the applicant’s salary because of her alleged unsatisfactory performance, in the context of the discrimination and harassment of which she considered herself to be a victim.
247 However, that failure to examine that decision is justified by the fact that the decision resulting from the ASBR for 2007 had been annulled by the President of the ECB on 19 August 2008, that is to say, before the adoption of the final inquiry report.
248 Accordingly, the applicant’s argument must be rejected.
– The contention that the panel failed to investigate the comments made by the Director-General DG‑P on the circumstance that the applicant received a very high salary compared with her colleagues
249 The ECB has not commented on the applicant’s argument.
250 Contrary to what is claimed by the applicant, the panel examined the remarks made by the Director-General DG‑P concerning the circumstance that she received a very high salary compared with her colleagues. The inquiry report refers to those remarks at page 50 and states at page 51 that those remarks had been made in the restricted context of a meeting on the situation of the applicant and only in the presence of persons who were expected to maintain confidentiality. Moreover, the inquiry report states that the Director-General DG‑P’s comment was true, as the applicant had the highest salary among the senior experts in the DG‑P.
251 Accordingly, the applicant’s argument must be rejected.
– The contention that the inquiry report makes no reference to the specific rules of the ECB applicable in cases of psychological harassment
252 The ECB disputes the applicant’s argument. According to the ECB, chapter 2.1.1 of the inquiry report refers to all the relevant rules and legislation taken into account in the administrative inquiry, including the provisions referred to by the applicant.
253 It must be held that the inquiry report cites the provisions of the Code of Conduct of the ECB in accordance with Article 11.3 of the Rules of Procedure of the ECB (OJ 2001 C 76, p. 12; ‘the Code of Conduct’) and the provisions of the note on the Dignity at Work policy and refers to those provisions in the course of examining the claim alleging discrimination on the ground of the applicant’s membership of the Staff Committee. In that connection, the inquiry report states that those provisions do not define the terms ‘mobbing’ or ‘psychological harassment’, which they use, but that the concept of harassment is defined in Article 12a of the Staff Regulations. Lastly, the inquiry report refers to the above provisions in assessing the applicant’s allegations that the Director-General DG‑P threatened her and made offensive remarks and spread rumours about her (see pages 14 to 16, 49 and 53 of the inquiry report).
254 Accordingly, the applicant’s argument must be rejected.
– The contention that the inquiry report fails to mention the contribution of the social counsellor of the ECB, whose assistance the applicant had requested and obtained
255 The ECB submits that this argument should be rejected. It maintains, first, that the inquiry report contains explicit references to the ECB’s social counsellor and, second, that the minutes of the hearing of the social counsellor were made available to the Executive Board for inspection.
256 It must be held that the inquiry report mentions the participation of the ECB’s social counsellor in the meetings between the Director-General DG‑P and the applicant on the subject of her situation and refers to the content of the testimonies of the participants in those meetings in the analysis of the matters arising during them (see pages 50 and 51 of the inquiry report).
257 Accordingly, the applicant’s argument must be rejected.
– The contention that the applicant’s health problems were neither considered nor mentioned by the panel at least to describe the temporal sequence of the events
258 According to the applicant, her health, which had deteriorated since 2006, should have been taken into consideration in particular in order to assess her absences and her failure to participate in the meetings of the MIS Division, which are mentioned in the inquiry report, and above all in order to assess the Director-General DG‑P’s refusal to find a proper solution to her workload issues and the fact that he decided to test her skills while she was sick.
259 The ECB submits that the panel’s mandate was not to assess the applicant’s state of health and that, in any event, the panel examined whether there had been discrimination on the grounds of her state of health.
260 As the applicant rightly claims, the inquiry report does not take into account her health problems when it mentions her reputation in the light of her frequent absences and her delays in delivering her work (see page 51 of the inquiry report).
261 Moreover, the inquiry report does not mention that the Director-General DG‑P had requested the applicant to draft a policy note on ‘standards’ in order to evaluate her skills for policy work at a time when her health was compromised. At that time, the applicant benefited from a 35% reduction in her working time for health reasons, which, added to her working time dispensation for her activities within the Staff Committee, left her around 10 hours per week for department work (see page 61 of the inquiry report).
262 Lastly, at page 51 of the inquiry report, it is stated that, after the meeting of 16 January 2008 between the applicant, the Director-General DG‑P and another person, the applicant appeared distraught, but there is no mention of the fact that she had been given sick leave by a psychiatrist immediately after that meeting. The fact that she was given sick leave is mentioned succinctly and exclusively in the introductory section of the report (page 11), in which the allegations made by the applicant’s adviser in her letter of 18 January 2008 are summarised. However, the fact that the applicant was given sick leave at the end of the meeting, during which she felt offended by the remarks made by the Director-General DG‑P, is an element which made it possible to assess the context in which those remarks were repeated in the email of 27 January 2008 sent by the Director-General DG‑P to the applicant.
263 Nonetheless, the panel mentioned the frequency of the applicant’s absences on health grounds, the consequences that that situation could have had for the tasks that had been entrusted to her and the arrangements agreed to as a result by the Director-General DG‑P (see pages 42 and 44 of the inquiry report). In addition, the panel specifically examined whether the applicant had been subject to discrimination on the ground of her state of health (see pages 59 to 61 of the inquiry report).
264 In the light of the foregoing, although the inquiry report is brief in its mention of the applicant’s state of health, it nevertheless did not ignore it.
265 Accordingly, the applicant’s argument must be rejected.
– The contention that the panel failed to examine the inconsistency of the explanations provided by the Director-General DG‑P for the offensive remarks that it is claimed he made about the applicant regarding her alleged bad reputation
266 The applicant considers that the panel failed to examine the contention that the Director-General DG‑P first refused to provide any explanation for his remarks regarding her alleged bad reputation and then provided contradictory explanations in his email of 27 January 2008 and in his testimony to the panel.
267 The ECB contends that the applicant’s argument should be rejected.
268 In that regard, it is sufficient to point out that the inconsistency alleged by the applicant in the explanations provided by the Director-General DG‑P for his offensive remarks was not considered by the panel because it did not find the remarks at issue to be offensive.
269 Accordingly, the applicant’s argument must be rejected.
– The contention that the panel did not investigate the refusal of the Director-General DG‑P to assign a colleague to assist the applicant
270 The ECB submits that the applicant’s argument should be rejected.
271 First, it is apparent from the inquiry report that the Director-General DG‑P had taken the view that the assignment of a colleague to assist the applicant would have been badly received by the applicant’s colleagues and that, in the light of information provided by the head of the MIS Division, those colleagues would have refused to work under her supervision (see pages 43 and 51 of the inquiry report).
272 Second, in the supplementary written observations of 27 April 2016 and December 2017, the applicant explained that most of the colleagues who had worked with her had stated to the panel that they had not been questioned in that regard by their line managers and that, had they been, they would have agreed to work with the applicant. Those testimonies implicitly confirm that the panel investigated the refusal of the Director-General DG‑P to provide the applicant with the assistance of a colleague because, in the light of the statements of the abovementioned witnesses, they had been asked questions to that effect by the panel.
273 The applicant’s argument must therefore be rejected.
– The contention that the panel failed to seek information regarding the circumstance that the Director-General DG‑P asked the applicant to leave the Staff Committee following the temporary reduction in her working time for health reasons
274 The applicant complains that the panel did not investigate her allegation that, on several occasions, in particular at the meeting of 5 March 2007, the Director-General DG‑P asked her to leave the Staff Committee.
275 The ECB submits, in essence, that the allegation that the Director-General DG‑P asked the applicant to leave the Staff Committee stems from the applicant’s misinterpretation of the comments made by the Director-General DG‑P concerning her refusal to reduce her work for the Staff Committee despite her health problems, comments which were repeated in an email of 27 March 2007 referred to in the inquiry report.
276 In that regard, first of all, it should be noted that the inquiry report does not refer to the applicant’s complaint. Next, it does not appear from the minutes of the hearing of the Director-General DG‑P that the panel questioned him about the comments at issue which he had allegedly made during the meeting of 5 March 2007, since no question to that effect was put to him (see minutes D‑IA 05.550 and D‑IA 08.551). Finally, contrary to what the ECB claims, the email of 27 March 2007 makes no reference to the comments at issue, nor to the fact that the applicant refused to reduce her working time dispensation for her activity in the Staff Committee. The applicant is therefore entitled to argue that the panel failed to examine that complaint.
277 Consequently, the applicant’s argument must be upheld.
– The contention that the panel did not find that there was a contradiction between the comments made by the Director-General DG‑P on the applicant’s alleged professional incompetence and her annual appraisals
278 In paragraph 83 of the application, the applicant stated that, at several meetings, the Director-General DG‑P had made comments about the fact that her salary was very high in comparison with that of her colleagues, that she was not suitable for political work, that she had a very bad reputation, and that she should consider leaving the MIS Division, even though her annual appraisals were all positive. Furthermore, in paragraph 49 of the supplementary written observations of 27 April 2016, the applicant noted that, in the minutes of hearing D‑IA 08-550, the Director-General DG‑P even stated that he had wanted to initiate a procedure for dismissing her.
279 The ECB contends that the scope of the inquiry did not cover an examination of the quality of the applicant’s work.
280 In that regard, it is sufficient to note that, in the last paragraph of page 51 of the inquiry report, express reference is made to the contradiction between the comments by the Director-General DG‑P on the applicant’s lack of professional competence and the positive assessments contained in her annual appraisals, the panel pointing out, however, that the assessment of the applicant’s professional competence did not come within its mandate.
281 The applicant’s argument must therefore be rejected.
– The failure to refer to the decision of the Director-General DG‑P to apply a temporary 35% reduction in working time in relation to the activity within the MIS Division, which led to a reallocation of the applicant’s workload and prevented her from continuing to work on the ‘standardisation’ file
282 The ECB contends that the issue of the applicant’s limited availability for work in the service was a result of her own request not to apply the reduction in working time to the working time dispensation for her activity in the Staff Committee.
283 It is apparent, inter alia, from pages 42 and 43 of the inquiry report and from the documents listed in footnote 18 of that report that, in March 2007, the Director-General DG‑P had agreed that the 35% reduction in working time on account of illness should be allocated solely to work in the MIS Division, in accordance with the applicant’s request.
284 The applicant’s argument must therefore be rejected.
– The contention that the inquiry report does not refer to the applicant’s request for a review of the circumstance that colleagues in the MIS Division were informed that she had received a bonus for 2006, which constituted a ‘breach of confidentiality’
285 The ECB contends, in essence, that, even it were established that the panel did not examine the circumstance that colleagues of the applicant were informed of the bonus which she received in 2006, the failure to examine that circumstance is an insignificant factual aspect which could in no way give rise to a manifest error.
286 It is apparent from the minutes of the meeting of 12 March 2007 between the applicant and the Director-General DG‑P that the latter informed the applicant that he had had to justify the decision to grant her a bonus in 2006 to one of his colleagues, who, moreover, had heavily criticised him for that decision.
287 Since the inquiry report does not contain any reference to that issue, the applicant’s argument must be upheld.
– The contention that the panel did not investigate the failure of an ECB member of staff to respect the confidentiality of a letter from the applicant’s advisor of 18 January 2008
288 The applicant claims that the panel did not investigate the failure of an ECB member of staff to respect the confidentiality of the letter from her advisor of 18 January 2008, addressed to that member of staff, which the latter disclosed to the Director-General DG‑P. The inquiry report merely states that that member of staff had forwarded that letter in his capacity as ‘competent senior manager’.
289 The ECB disputes the applicant’s argument on the ground that, in general, letters addressed to the Director-General of DG ‘Human Resources, Budget and Organisation’ (‘Director-General DG‑H’) in the course of his professional field of activity, which relate to professional matters involving other members of staff, cannot be treated as ‘non-documents’. In any event, in the letter of 18 January 2008, the applicant’s advisor indicated that he would ask the Director-General DG‑P formally and officially to withdraw his comments about the applicant. It was therefore appropriate and necessary to inform the Director-General DG‑P about that letter, in particular to enable him to give his views on the issues raised in it.
290 At page 11 of the inquiry report, it is stated that the Director-General DG‑H informed the Director-General DG‑P of the content of the letter of 18 January 2008 in his capacity as ‘competent line manager’.
291 It follows, first, that the panel examined the applicant’s allegation of breach of confidentiality of the letter of 18 January 2008 and, second, that, in any event, the panel could not see any indication of harassment in the disclosure of the letter at issue to the Director-General DG‑P. That is all the more so the case since that letter stated that the applicant would be asking the Director-General DG‑P to withdraw the allegedly offensive comments which he had made about her.
292 The applicant’s argument must therefore be rejected.
293 In the light of the foregoing, it must be held that the inquiry report is deficient in relation to certain facts alleged by the applicant in her complaint.
The second part of the third plea in law, alleging manifest errors of assessment
294 The applicant complains that the panel committed several manifest errors of assessment, which will be examined in turn below.
– The contention that the inquiry report exonerates the Director-General DG‑P for the comments that it is claimed he made about the applicant which were based on unsubstantiated rumours, and the contention that the panel also failed to take into account that those rumours were, in themselves, a form of harassment
295 The applicant complains that the panel set out, in the inquiry report, a few negative points about her work and used these to justify the statement by the Director-General DG‑P that she had a bad reputation, even though that statement was not substantiated and several witnesses had indicated that it was a rumour.
296 According to the applicant, the comments about her reputation are unfair, unfounded and unconstructive. At the meetings of 5 and 12 March 2007 and of 16 January 2008, the Director-General DG‑P refused to give her the slightest clarification regarding her alleged bad reputation and, in his email of 27 January 2008, he confirmed his offensiveness by stating that the applicant had had several problems with her line managers. Before the panel, he explained that it was to make it clear to the applicant that her request for the assignment of a junior colleague to assist her would not be well received, but did not explain why that would be the case. The latter allegation is contradicted by the testimony given during the administrative inquiry, which shows either that the applicant’s colleagues were not questioned on the matter or that they would have agreed to work with her if they had been asked to do so (see minutes of the hearing of witnesses AN 11, AN 12, AN 14, AN 21, AN 22, AN 25, AN 26 and AN 35). Moreover, the head of the MIS Division did not confirm that he had said that the applicant’s colleagues would refuse to work with her and under her supervision. In any event, the Director-General DG‑P should have verified whether her ‘bad reputation’ was proven in order to respect her legitimate interests and, therefore, if necessary, discipline any person spreading that rumour. If that rumour had been substantiated, he ought to have allowed the applicant to express her point of view.
297 The ECB disputes the applicant’s arguments. According to the ECB, it is apparent from pages 50 and 51 of the inquiry report that the statements made by the Director-General DG‑P reflected his personal opinion and were not a ‘rumour’ and that that opinion was confirmed by some of the witnesses interviewed. Furthermore, the Director-General DG‑P did not repeat his offensive comments to the panel, as claimed in paragraphs 85 and 86 of the application, but confirmed his view of the applicant’s reputation. A critical comment by a line manager is not ipso facto ‘offensive’, and certainly cannot be described as harassment or discrimination. It is all the less so as testimony confirmed what he had said. In any event, the Director-General DG‑P, denying that he had made the comments in an offensive manner, was not required to apologise to the applicant. Finally, the ECB criticises the vagueness of the allegations set out in paragraph 87 of the application.
298 As a preliminary point, it is apparent from the applicant’s complaint that she had called into question the conduct of the Director-General DG‑P, in particular in that he had allegedly spread rumours and negative comments concerning her bonus and reputation, humiliating her and misusing those rumours against her.
299 It is also clear from the application, first, that the rumours to which the applicant refers in her written pleadings concern her alleged bad reputation and, second, that the fact that the Director-General DG‑P had allegedly told her on several occasions that she had a bad reputation without ever giving her any explanation in that regard thus infringes the Dignity at Work Policy note, those remarks being, in her view, unfair, offensive and unconstructive.
300 In the first place, the inquiry report acknowledged that there were rumours concerning the applicant’s reputation, which it did not explicitly describe as ‘bad’, even though that conclusion follows implicitly from the finding, at page 51 of the inquiry report, that the majority of the applicant’s line managers and colleagues felt that she had a certain reputation in view of her frequent absences, her lateness in performing her work and the fact that she was a difficult colleague to manage.
301 On the basis of the copies of the contested minutes provided by the ECB, it must be stated that certain witnesses had heard rumours concerning the difficulties which the applicant had encountered with her line managers or the fact that it was difficult to work with her due to her absences. Several witnesses also confirmed that she was often absent because of her work on the Staff Committee and her illness.
302 It must therefore be stated that rumours were circulating about the applicant and that she was known for being frequently absent.
303 However, it does not appear from the file that the rumours concerning the applicant had been put into circulation or spread by the Director-General DG‑P.
304 Thus, the fact that rumours were circulating about the applicant cannot demonstrate that she was the victim of psychological harassment by the Director-General DG‑P.
305 In the second place, the applicant challenges the panel’s assessment that the comments made by the Director-General DG‑P concerning her bad reputation were constructive and, therefore, did not constitute an infringement of the Dignity at Work Policy note, even though the Director-General DG‑P had refused to explain to her the grounds on which those comments were based.
306 First of all, at page 50 of the inquiry report, it is stated that the offensive comments challenged by the applicant were made by the Director-General DG‑P at the meetings of 5 and 12 March 2007, 15 May 2007 and 16 January 2008 which took place between him and the applicant.
307 Next, it does not appear from the file that the Director-General DG‑P disputed making the comments at issue during the meetings referred to in paragraph 306 above and that he had not explained to the applicant exactly what he meant by his comments.
308 Furthermore, it is apparent from the testimony of the social counsellor who attended one of the meetings between the Director-General DG‑P and the applicant that the Director-General DG‑P had unexpectedly made a comment implying that the applicant was a person with whom it was difficult to work and had not wished to give precise explanations as to why he had made such a comment, which, in the opinion of the social counsellor, could be understood as meaning that he did not wish to disclose the identity of the applicant’s colleagues who had made those remarks (see minutes of hearing D‑IA 09.018, in answer to question No 4). Furthermore, it follows from the testimony of another member of staff who attended one of the meetings referred to in paragraph 306 above that the Director-General DG‑P did indeed make the contested comments without providing the applicant with any explanation whatsoever (see minutes of hearing D‑IA 08.503, in answer to question No 5).
309 Finally, the failure to explain to the applicant the reasons for the contested comments relating to her bad reputation, comments which were repeated on several occasions, is not in accordance with the Dignity at Work Policy note.
310 At page 53 of the inquiry report, it is noted that, in accordance with the Dignity at Work Policy note, negative comments or criticism addressed to a staff member are appropriate if (i) they are fair and constructive, (ii) they are directly addressed to the staff member and (iii) that staff member is treated with dignity and respect.
311 As the applicant rightly submits, a criticism such as that made by the Director-General DG‑P cannot be regarded as ‘constructive’ in the absence of any explanation. The fact that an explanation was provided to the applicant in an email of 27 January 2008 cannot invalidate the above conclusion since it is not disputed that, prior to that date, those comments had been made on several occasions by the Director-General DG‑P without him explaining them.
312 In the light of the foregoing, the contested decision of 24 November 2009, which refers to the inquiry report in its conclusion that the comments at issue made by the Director-General DG‑P were appropriate, is vitiated by a manifest error of assessment.
313 Consequently, the applicant’s argument must be upheld in part.
– The contention that the panel considered that the comments made by the Director-General DG‑P concerning the applicant’s bad reputation, in her view offensive and unjustified, the repetition of those comments during the administrative inquiry and the refusal by the Director-General DG‑P to withdraw them and to apologise were not intentional acts, even though the Director-General DG‑P was well aware of the fragile nature of the applicant’s health and state of mind
314 The ECB contends that the Director-General DG‑P did not ‘repeat’ offensive comments, but expressed his point of view regarding the applicant’s reputation. Furthermore, a comment made by a line manager is not ipso facto offensive and certainly cannot be described as amounting to harassment or discrimination. That is particularly true where the critical comment is confirmed, as in the present case, by a certain number of witnesses. Finally, since the Director-General DG‑P denies having made his comments in an offensive manner, he is under no obligation to apologise.
315 Contrary to what the applicant claims, it is not apparent from the inquiry report (see pages 50 to 52) that the panel found that the comments made by the DG‑P Director-General relating to her bad reputation were unintentional. In that regard, it should be noted in particular that, at page 51 of the inquiry report, the panel merely noted that the witnesses who had attended the meetings during which those comments were made had taken the view that they were not discriminatory and that the Director-General DG‑P had not intended to discriminate against the applicant.
316 The applicant’s argument must therefore be rejected.
– The contention that the inquiry report is vitiated by a manifest error in that it did not consider the refusal to award the applicant an ad personam promotion in 2008 to be discriminatory, on the basis of incorrect information, namely that she did not fulfil the criterion of two years’ service at the highest level of merit required for such a promotion
317 The ECB has submitted that the refusal to grant the applicant an ad personam promotion in 2008 was the subject of the action in Case F‑96/08, Cerafogli v ECB.
318 As a preliminary point, it should be noted that, in response to a written question put by the Court on 27 June 2019, the ECB acknowledged that the lis alibi pendens situation which it contested in the defence had disappeared following the delivery of the judgment of 28 October 2010, Cerafogli v ECB (Case F‑96/08, EU:F:2010:135) (see paragraph 83 above).
319 Furthermore, in the judgment of 28 October 2010, Cerafogli v ECB, (F‑96/08, EU:F:2010:135), the Court annulled the decision by which the ECB had refused to grant the applicant an additional salary increase for 2008, relying in particular on the fact that the Staff Committee had not been consulted prior to the adoption of the text providing for the criterion of two years’ service with the highest level of merit (judgment of 28 October 2010, Cerafogli v ECB, F‑96/08, EU:F:2010:135, paragraphs 52 to 54). In view of the force of res judicata attaching to the abovementioned grounds which constitute the necessary support for the operative part of the abovementioned judgment, it must be concluded, in the present case, that the panel erred in relying on the fact that the applicant did not meet the criterion of two years’ service with the highest level of merit in order to take the view that the refusal to grant her an ad personam promotion was not open to challenge.
320 Consequently, the applicant’s argument must be upheld.
– The contention that the inquiry report was manifestly incorrect in concluding that the applicant had received the support of the DG‑P, whereas, despite numerous requests for assistance, no measure was taken to alleviate her excessive workload before March 2007, when her working time had been reduced because of the deterioration in her state of health
321 The ECB submits that the applicant had been given a working time dispensation over and above that normally authorised and that, from 2006, the Director-General DG‑P held approximately 15 meetings with the applicant to discuss her situation and how she might be helped.
322 In the judgment of 28 October 2010, Cerafogli v ECB (F‑84/08, EU:F:2010:134), it was held that there was no evidence to show that the applicant’s workload had in fact been adjusted to take account of the dispensation from 50% of her working time, which she had obtained in January 2006 in order to carry out her staff-representation duties, and that the main task which had been entrusted to her, namely the ‘standardisation’ file, had been assigned to another member of staff only in March 2007, when she was granted a reduction in her working time on medical grounds (judgment of 28 October 2010, Cerafogli v ECB, F‑84/08, EU:F:2010:134, paragraph 58). In view of the force of res judicata attaching to the abovementioned grounds, which constitute the necessary support for the operative part of the judgment of 28 October 2010, Cerafogli v ECB (F‑84/08, EU:F:2010:134), the contested decision of 24 November 2009, which refers to the conclusion of the inquiry report according to which the applicant had benefited from measures intended to alleviate her excessive workload before March 2007, is vitiated by a manifest error of assessment.
323 Consequently, the applicant’s argument must be upheld.
– The contention that, at page 60, the inquiry report notes, contrary to the annual appraisals which the applicant had received, that, due to the time she devoted to the Staff Committee and her absences, her working time for the service had been reduced and that that situation, combined with her ‘professional problems’, had required special attention on the part of the Director-General DG‑P
324 The applicant claims that the inquiry report expresses a negative assessment of her ability to perform the work of her organisational unit, which contradicts her annual appraisals. She submits that the panel’s statement at page 60 of the inquiry report that her situation required special attention is unfounded, as she was not notified of any professional problems. In addition, the inquiry report does not specify what ‘professional problems’ were referred to, or whether those problems had been brought to her attention.
325 The ECB considers, in essence, that the applicant’s argument is based on vague or even speculative statements which are not supported by detailed evidence and which, in any event, do not establish that there was a manifest error of assessment.
326 The second paragraph at page 60 of the inquiry report reads as follows:
‘The Inquiry Panel notes that due to the time devoted to Staff Committee responsibilities and the absences over the last years, the remaining working time available for business area work became limited and more unpredictable. This situation combined with the observed professional problems of the complainant required special management attention from the Director-General DG‑P.’
327 The ‘situation’ referred to at the beginning of the second sentence of the second paragraph at page 60 of the inquiry report relates to the problems referred to in the first sentence of that paragraph, namely, first, the applicant’s excessive workload due to the time devoted to her responsibilities as a member of the Staff Committee and, second, her absences.
328 The ‘professional problems’ referred to in the second sentence of the second paragraph of page 60 of the inquiry report do not therefore refer to the applicant’s excessive workload and her absences, but rather to the applicant’s alleged professional problems which the Director-General related to the panel and which are referred to at page 50 of the inquiry report.
329 It is apparent from paragraph 280 above that the panel did indeed note the contradiction between the comments by the Director-General DG‑P concerning the applicant’s lack of professional ability and the positive assessments in her annual appraisals, while pointing out that it was not competent to give an opinion on that question.
330 Consequently, the applicant’s argument must be rejected.
– The contention that the inquiry report is vitiated by a contradiction in that it notes, first, that the members of staff of the MIS Division were opposed to the applicant receiving assistance from a colleague and, second, that they showed that they were prepared to work with her
331 The ECB considers, in essence, that the applicant’s argument is based on vague assertions which do not establish that there was a manifest error of assessment.
332 It must be noted that, first, the inquiry report states that the colleagues of the applicant had in fact declared that they were willing to work with her, although some of them stated that the practical arrangements for such cooperation needed to be defined beforehand. Second, the inquiry report states that the Director-General DG‑P was of the opinion that the assignment of a colleague to assist the applicant would have been badly received by her colleagues and that they would have refused to work under her supervision.
333 It must be stated that there is no contradiction between the two findings referred to in paragraph 332 above, since the former was a result of the hearings of members of staff, whereas the latter related the opinion of the Director-General DG‑P, which he had been able to form on the basis of information provided by the head of the MIS Division. Moreover, the opinion of the Director-General DG‑P was strongly qualified during the administrative inquiry by the members of the MIS Division themselves.
334 Consequently, the applicant’s argument must be rejected.
– The contention that the inquiry report is vitiated by an error in that it overlooked the fact that the other members of the DG‑P who had been absent on sick leave were able to resume their positions on their return, whereas, in the applicant’s case, the ‘standardisation’ file was permanently withdrawn from her after the end of the reduction in her working time on medical grounds
335 The applicant submits, more specifically, that a situation in which a staff member has a 35% reduction in working time should not be treated differently from a situation in which a staff member is absent due to illness for a period of three months. She adds, in essence, that other members of the DG‑P who were sick or on leave for a number of months returned to their positions at the end of their leave. Thus, in essence, she considers that the fact that the ‘standardisation’ file was not returned to her at the end of the reduction in her working time on medical grounds constitutes discrimination against her on the grounds of her membership of the Staff Committee and her illness, bearing in mind that her line managers had refused to take measures to enable her to perform her dual duties when she was ill.
336 The ECB takes the view, in essence, that the applicant’s argument is based on vague or even speculative statements which are not supported by detailed evidence and which, in any event, do not establish that there was a manifest error of assessment.
337 The applicant’s argument, even if it were well founded, cannot constitute evidence of a manifest error of assessment inasmuch as the applicant had for a long time had an excessive workload, a situation for which the ECB was obliged to find a solution.
338 Furthermore, in the judgment of 28 October 2010, Cerafogli v ECB (F‑84/08, EU:F:2010:134, paragraph 59), it was held that the ECB, which was competent to determine and modify the organisation of its services in accordance with its needs, had been able to consider, without prejudice to the applicant’s position under the Staff Regulations, that the applicant, on account of her dispensation from service and the reduction in her working time on medical grounds, was no longer in a position to work adequately on the ‘standardisation’ file.
339 In any event, the applicant has not demonstrated that she was in a situation similar to that of her colleagues who had resumed their duties after three months of sick leave. Nor has she demonstrated that colleagues in her division always resumed their files when they returned from extended sick leave or at the end of a period of reduced working time due to illness.
340 Consequently, the applicant’s argument must be rejected.
– The contention that the content of the inquiry report and the content of the contested decisions of 24 November 2009 and 24 March 2010 resulted in further defamation of the applicant
341 The applicant submits that the panel established the facts in a biased manner and that the contested decisions of 24 November 2009 and 24 March 2010 contain incorrect quotations of her annual appraisals in order to denigrate her work. She also submits that many of the quotations in the inquiry report, listed in paragraph 97 of the application, are either incorrect or taken out of context. Similarly, in essence, she submits that the statements in the inquiry report regarding her alleged bad reputation related to her frequent absences, her delays in completing her work and the fact that she was a difficult colleague further defamed her.
342 The ECB disputes the applicant’s argument, which, in its view, does not take into account either the considerable time and energy invested by a significant number of people within the ECB in order, first, to find solutions for the applicant’s situation and, second, to examine her complaint. Furthermore, the applicant’s argument is based on the incorrect premiss that, since her allegations proved unfounded, she was automatically defamed. Finally, the ECB contends that the applicant’s argument does not demonstrate that there was a manifest error of assessment.
343 It should be noted that the defamatory nature of the comments made about the applicant has not been established, since the ECB rightly argues that it is inherent in any internal administrative inquiry that it may lead, as the case may be, to conclusions which do not confirm the statements made by the author of the complaint which gave rise to the inquiry, or may even run counter to that person’s expectations. Such a situation therefore cannot be regarded as defamatory in itself.
344 Furthermore, even if the panel erred in finding that it was established, on the basis of the testimony of the applicant’s line managers and colleagues, that she had a certain reputation associated with her absences, her lateness in performing her work and the fact that she was a difficult person to work with, that error cannot defame the applicant, because the inquiry report also makes a point of noting that a number of colleagues acknowledged that she had a good reputation.
345 The applicant’s complaint must therefore be rejected.
– The contention that the contested decision of 24 March 2010 is based on extracts from the applicant’s annual appraisals which are unfavourable to her because they were altered or taken out of context
346 The ECB argues that the applicant's argument does not demonstrate that there was a manifest error of assessment.
347 As a preliminary point, the contested decision of 24 March 2010 states, first, that certain extracts from the applicant’s annual appraisals prior to 2007 contained some criticism of her (for example, the 2006 appraisal implied that she should increase her interaction with her colleagues) and, second, that, although her annual appraisals contained positive assessments overall, they were qualified over time.
348 In the first place, it is not possible to ascertain whether the extract from the annual appraisal for 2001, reproduced in the contested decision of 24 March 2010, was amended, because that appraisal is not in the case file. By contrast, the annual appraisals for 1999 and 2006 and the extract from the 2002 appraisal are included in the case file.
349 Furthermore, contrary to what the applicant submits, the extracts from the annual appraisals for 1999, 2002 and 2006, referred to in the contested decision of 24 March 2010, were not amended.
350 That being said, those extracts were taken out of context in order to draw negative conclusions about the applicant, in particular as regards her professional performance, even though the assessment of that performance did not form part of the subject matter of the administrative inquiry (see paragraph 216 above).
351 In the second place, the contested decision of 24 March 2010 states that the annual appraisal for 2006 ‘[suggested] that [the applicant] should increase her interaction with her colleagues in the [MIS Division]’ (the original judgment, paragraph 187). However, in the absence of other information in the annual appraisals for 1999, 2000 and 2002 to 2005 confirming that interpretation, it cannot automatically be inferred from the increase in interaction between the applicant and her colleagues, which was noted in the appraisal for 2006, that the situation prior to that date was problematic or less than ideal.
352 Moreover, as regards the applicant’s interaction with her colleagues, it is apparent from several sets of minutes provided by the ECB to the Court, first, that there was not necessarily any interaction between colleagues in the same division when they were working on different files, second, that it was common practice, within the DG‑P, for colleagues, over several years, to have their own files to which they were ‘attached’ and, third, that there was a certain reluctance to share or change files, inasmuch as colleagues perceived this as interference in what they regarded as their own files.
353 The applicant’s argument must therefore be upheld.
Conclusion
354 First, the shortcomings in the inquiry report (see paragraphs 241, 242, 276, 286 and 287 above) show that the panel did not carefully examine the complaints of discrimination, psychological harassment and infringement of the Dignity at Work Policy note which were before the panel, since a number of factual elements submitted in support of those complaints were disregarded.
355 However, the factual elements which the panel failed to consider, taken in isolation or as a whole, are not in themselves sufficient to call into question the panel’s conclusion that the applicant was not subjected to discriminatory treatment, psychological harassment or an infringement of the Dignity at Work Policy note.
356 Second, it cannot be excluded that, in the absence of the manifest errors of assessment noted in paragraphs 312, 319, 322 and 351 above, the contested decisions of 24 November 2009 and 24 March 2010, at least with regard to the allegation of psychological harassment, might have been different.
357 In the light of the foregoing, the third plea in law must be upheld in part.
The fourth plea in law, alleging infringement of the concept of psychological harassment
358 The applicant considers that the contested decision of 24 November 2009 misconstrues the concept of psychological harassment and, therefore, in essence, is vitiated by an error of law. In that regard, first of all, she submits that the panel assessed the conduct of the Director-General DG‑P (in particular, the repeated nature of his statement regarding the applicant’s bad reputation, his criticism of her ability to carry out policy work, his advice that she should leave the division and his warning ‘you will be devastated’) solely on the basis of the rules on harassment contained in the Staff Regulations and not on the basis of the rules contained in the Dignity at Work Policy note, which do not require an intentional element. Next, she submits that the conclusion in the inquiry report that the comments by the Director-General DG‑P were unintentional is incorrect, as he was aware of her state of health and was aware that she had felt offended by his comments and, despite that, he repeated them. Finally, she claims that, while a colleague’s negative opinion does not in itself constitute psychological harassment, the situation is different if that unfavourable opinion was as a result of her being a member of the Staff Committee.
359 The ECB contends that the applicant’s plea should be rejected. In that regard, first of all, it submits that the inquiry report refers to the Dignity at Work Policy and, at pages 49 to 51, contains an assessment of the conduct of the Director-General DG‑P, with the conclusion that that conduct did not contravene the relevant ECB rules. Next, the ECB points to the vagueness of the applicant’s assertion that that conduct was not assessed in the light of the provisions of the Dignity at Work Policy note. Finally, the ECB states that the Director-General DG‑P did not repeat to the panel any negative comments about the applicant, but merely confirmed to the panel what he had said to the applicant, noting that a certain number of witnesses confirmed that the applicant had had difficulties with most of her line managers.
Preliminary observations
360 In the first place, in the context of the second plea in law, alleging that the panel breached its mandate, the applicant disputed the fact that the panel examined her complaint relating to psychological harassment solely with regard to the allegations of insults, spreading of rumours and threats made by the Director-General DG‑P without taking into account the general situation and the management’s other decisions or conduct which she considers wrongful (see paragraph 207 above). Moreover, in the reply, in support of the fifth plea in law, alleging that the panel infringed its duty to assist, the applicant submitted that, while confirming all the facts which she had alleged concerning her working situation in the DG‑P, the panel did not examine those facts together and, consequently, did not examine the whole situation in order to establish whether there was psychological harassment in the present case.
361 In other words, the applicant criticises the fact that the panel assessed the existence of the alleged psychological harassment solely in relation to certain conduct and decisions of the Director-General DG‑P taken in isolation, thereby failing to carry out that examination in the light of all the matters which she had alleged in her complaint, considered as a whole, that is to say, taking into account the ‘general situation’ to which she was exposed. That interpretation is further confirmed in the special appeal of 29 January 2010, in which the applicant had already explicitly disputed the fact that the inquiry report had examined her allegations separately and not globally, contrary to the concept of harassment.
362 By a measure of organisation of procedure of 27 June 2019, the Court gave the ECB the opportunity to submit its observations on that complaint. In its reply of 14 July 2019, the ECB replied that the panel had conducted a thorough and comprehensive assessment of the applicant’s individual allegations. In so doing, it took account of the applicant’s general situation within the DG‑P and of her allegations concerning the management’s decisions and actions which had been taken in respect of her. The ECB also stated that the panel had had to structure its work and had divided the subject matter of the administrative inquiry into four parts, assessing them one by one. That did not, however, the ECB submits, mean that the applicant’s allegations were excluded from the scope of the administrative inquiry or were not assessed. According to the ECB, in the inquiry report, the panel assessed in detail whether there was sufficient evidence of defamation, isolation, psychological harassment and bullying or acts constituting an infringement of the Dignity at Work policy.
363 In the second place, the Code of Conduct, as applicable at the material time, stated as follows, in point 2.1 entitled ‘Equal treatment and non-discrimination’:
‘[Members of the staff of the ECB] should avoid any form of discrimination and, in particular, any discrimination based on race, nationality, gender, age, physical disability, sexual preference, political opinions, philosophical views or religious convictions.
… [Members of the staff of the ECB] need both to show sensitivity to and respect for others and to stop any behaviour seen as offensive by another person at his/her first indication. No [member of staff of the ECB] shall be prejudiced in any way whatsoever for preventing or reporting harassment or bullying.’
364 On 19 September 2006, the ECB issued the Dignity at Work Policy note. The introductory part of that note states that it ‘implements Article 2.1 of the Code of Conduct’ and that it covers all forms of inappropriate behaviour, such as harassment, sexual harassment, discrimination or bullying.
365 Furthermore, according to Chapter 2 of the Dignity at Work Policy note:
‘Dignity at work means the absence of inappropriate behaviour in the ECB’s work environment. Inappropriate behaviour may occur in many forms, which may undermine the dignity and the respect other staff members are entitled to: physical harassment, sexual harassment, discrimination, bullying or mobbing. Inappropriate behaviour thus can be of a physical, verbal or psychological form. It can occur as a result of any act or conduct, which is unwanted by and unreasonable to the recipient and which the recipient finds intimidating, humiliating or offensive.
Inappropriate behaviour can target a variety of personal characteristics (gender, age, sexual orientation, racial/ethnic origin, disability, religion or belief, or any other characteristic of an individual) and can be as a result of acts or conducts addressed directly or indirectly to an individual or at a group of persons. It can occur as a one-off incident or as repeated behaviour; it can include an overt abuse of power or take more subtle forms.
The intention of an alleged wrongdoer is not the only or even the main issue, the behaviour may even be unintentional on the alleged wrongdoer’s part. It is very much also the impact of the behaviour on the recipient that is important in determining whether the behaviour is inappropriate. Everyone should carefully assess the situation of alleged inappropriate behaviour before taking further action. Unfounded allegations with the intent to discredit other persons will not be acceptable. To avoid misunderstandings, it is important for everyone to be aware that particular words, ways of speaking, and actions may be acceptable behaviour in one’s own culture, but may be upsetting or offensive to others and may contravene the ECB’s values …
Giving feedback to staff member[s] belongs to the main responsibilities of managers when managing and developing their staff. Negative feedback on or criticising a staff member’s performance or behaviour at work is appropriate as long as it is fair and constructive, directly addressed to the staff member, and the staff member is treated throughout with dignity and respect.
Inappropriate behaviour undermines the self-confidence of the [employees of the ECB]. It may impact on their capacity to carry out their role to the best of their abilities. It may also impact on their health and well-being …’
366 According to Chapter 3 of the Dignity at Work Policy note:
‘…
Area and line managers have a responsibility to act as role models for their staff. They should recognise and be alert to inappropriate behaviour and take the relevant action to ensure compliance with the [Dignity at Work] Policy throughout their area. They should be open and responsive to staff members who feel they are being treated inappropriately.
…’
367 In the light of the foregoing, first, it should be noted that Article 2.1 of the Code of Conduct refers to ‘harassment’ without distinguishing between psychological or sexual harassment (see paragraph 363 above). Second, although the Dignity at Work Policy note does not expressly refer to psychological harassment, it follows from the terms used that the note implicitly but necessarily refers to psychological harassment. First, the introductory part of that note refers to both ‘harassment’ and ‘sexual harassment’ (see paragraph 364 above). Second, Chapter 2 of that note indicates that inappropriate behaviour, within the meaning of that note, may ‘occur in many forms’. Consequently, the list of inappropriate behaviour, referred to in Chapter 2 of the Dignity at Work Policy note (see paragraph 365 above), is not exhaustive and, therefore, includes psychological harassment. Moreover, it must be noted that the parties do not dispute that that is indeed the case.
368 In the third place, the inquiry report mentions the relevant provisions of the Code of Conduct and the Dignity at Work Policy note and refers to them, first, in the examination of alleged discrimination on account of the applicant’s membership of the Staff Committee and, second, for the purposes of assessing the applicant’s allegations that the Director-General DG‑P threatened her, made offensive comments and spread rumours about her (see pages 14 to 16, 41, 49 and 53 of the inquiry report).
369 In that connection, the inquiry report states that the Code of Conduct and the Dignity at Work Policy note do not define the terms ‘mobbing’ and ‘psychological harassment’ and that the definition of psychological harassment had been enshrined in Article 12a of the Staff Regulations (see pages 16, 17 and 41 of the inquiry report).
370 Furthermore, at page 16, the inquiry report also states that, in accordance with Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16), harassment is a form of discrimination. Thus, by referring implicitly to the definition of harassment enshrined in Article 2(3) of that directive, the inquiry report states, at page 16, that psychological harassment includes ‘any improper conduct that takes place over a period, is repetitive or systematic and involves physical behaviour, spoken or written language, gestures or other acts that are intentional and that may undermine the personality, dignity or physical or psychological integrity of any person’.
371 In the fourth place, it is necessary to reject the ECB’s argument concerning the vagueness of the applicant’s claim that the conduct of the Director-General DG‑P was not assessed in the light of the provisions of the Dignity at Work Policy note (see paragraph 359 above). It is clear from paragraphs 30 and 100 of the application that, in so far as the panel sought to establish that the conduct and decisions of the applicant’s line managers were intentional, it did not examine the allegation of psychological harassment in the light of the Dignity at Work Policy note, which does not require proof of the alleged wrongdoer’s intention.
372 It is in the light of those preliminary observations that the applicant’s plea, which, in essence, is divided into two parts, must be examined. The first part seeks to challenge the panel’s examination of the intentional nature of the behaviour, facts and contested decisions in respect of the psychological harassment complaint. According to the applicant, the Dignity at Work Policy note does not require those elements to be intentional. The second part alleges that there was no joint and contextual examination of all the behaviour, facts and decisions challenged with regard to the concept of psychological harassment.
The first part of the fourth plea in law, alleging, in essence, that the panel did not correctly investigate whether the conduct complained of was intentional
373 Since the entry into force of Article 12a(3) of the Staff Regulations on 1 May 2004, psychological harassment has been defined as ‘any improper conduct that takes place over a period, is repetitive or systematic and involves physical behaviour, spoken or written language, gestures or other acts that are intentional and that may undermine the personality, dignity or physical or psychological integrity of any person’.
374 In that regard, it should be noted that, in the wording of Article 12a(3) of the Staff Regulations, the EU legislature did not reiterate the earlier case-law requirement that, in order to come within the concept of psychological harassment, behaviour must have been aimed, objectively, ‘at discrediting or at deliberately impairing [the] working conditions’ of the person towards whom such conduct had been shown.
375 In those circumstances, it must be acknowledged that the concept of ‘psychological harassment’ is defined, in Article 12a(3) of the Staff Regulations, as ‘improper conduct’, which, first, in the form of physical behaviour, spoken or written language, gestures or other acts, takes place ‘over a period’ and is ‘repetitive or systematic’, suggesting that psychological harassment must be understood as a process that necessarily occurs over time and presumes the existence of repetitive or continual behaviour which is ‘intentional’, as opposed to ‘accidental’. Second, in order to come under that definition, such physical behaviour, spoken or written language, gestures or other acts must have the effect of undermining the personality, dignity or physical or psychological integrity of a person (judgment of 13 December 2017, HQ v CPVO, T‑592/16, not published, EU:T:2017:897, paragraph 101; see, also, judgment of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 76 and the case-law cited).
376 It is therefore not necessary to establish that the physical behaviour, spoken or written language, gestures or other acts in question were committed with the intention of undermining the personality, dignity or physical or psychological integrity of a person. In other words, there can be psychological harassment without proof that the harasser intended, by his or her conduct, to discredit the victim or deliberately impair his or her working conditions. It is sufficient that such improper conduct, provided that it was committed intentionally, led objectively to such consequences (see judgments of 5 June 2012, Cantisani v Commission, F‑71/10, EU:F:2012:71, paragraph 89 and the case-law cited, and of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 77 and the case-law cited).
377 Finally, as the conduct in question must, under Article 12a(3) of the Staff Regulations, be improper, it follows that the classification of such conduct as ‘harassment’ is subject to the condition of its being sufficient, when viewed objectively, to be considered real, in the sense that an impartial and reasonable observer, of normal sensitivity and in the same situation, would consider the conduct or act in question to be excessive and open to criticism (judgments of 16 May 2012, Skareby v Commission, F‑42/10, EU:F:2012:64, paragraph 65, and of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 78).
378 It follows from the foregoing that the concept of psychological harassment set out in the Staff Regulations does not require proof of the perpetrator’s intention to cause harm.
379 It should be added that it is irrelevant in the present case that the applicant wrongly considered that only the concept of psychological harassment referred to in the Dignity at Work Policy note does not require proof of the alleged harasser’s intention. Since the panel examined the existence of possible psychological harassment, within the meaning of the Dignity at Work Policy note, by applying the definition in the Staff Regulations, it is necessary to examine whether the panel actually required the conduct complained of by the applicant to be intentional and, if so, whether that constitutes an infringement of the concept of psychological harassment within the meaning of the Dignity at Work Policy note and within the meaning of Article 12a(3) of the Staff Regulations.
380 In that regard, it should be noted that, at page 17 of the inquiry report, after noting the statutory definition of psychological harassment, the panel summarised the conditions in three indents, which are stated below:
‘- The conduct is against the rules;
- The conduct is repetitive or systematic;
- The conduct is intentional.’
381 The question that arises is therefore whether the reference to intent at page 17 of the inquiry report refers to the alleged harasser’s intention to harm or to the offending behaviour not being unintentional.
382 The answer to that question follows from an in concreto examination of the conclusions of the inquiry report on the various complaints examined by the panel.
383 With respect to the complaint regarding isolation and exclusion, it is stated at pages 7 and 8 of the inquiry report that ‘the Inquiry Panel has found no indication that the isolation and social exclusion perceived by the complainant was the result of management actions with that purpose’ and that ‘the non-participation in the training events cannot be construed as constituting a repeated and intentional attempt on the part of the DG‑P management to isolate Ms Cerafogli from the team or to deteriorate her working conditions’.
384 In addition, at pages 48 and 49 of the inquiry report, the following is stated:
‘the non-participation in two training events in 2007 cannot be construed as constituting a repeated and intentional attempt on the part of DG‑P management to isolate Ms Cerafogli from the team or to deteriorate her work conditions. As regards the non-participation of the complainant in the team building event, the Inquiry Panel however noted that the MIS Head of Division could have been more proactive in communicating his decision and explaining the reasons to the complainant. The Inquiry Panel has found no indication that the isolation and social exclusion perceived by the complainant was the result of management actions with that purpose. The Inquiry Panel concludes that the claim is not substantiated.’
385 Finally, with respect to the complaint regarding the Director-General DG‑P causing offence, spreading rumours and making threats, the inquiry report states at pages 8 and 54 that:
‘the comment made by the Director-General DG‑P in which the word “devastation” was used could be subject to different interpretations. However, and based on the information gathered with the aim to assess the context in which the comment was made, the Inquiry Panel is of the opinion that the use of this word was not intended as a threat.’
386 First, it is implicitly but necessarily apparent from the extracts from the inquiry report reproduced in paragraphs 383 to 385 above that the conduct of the Director-General DG‑P or, more generally, of the management, challenged by the applicant, was not accidental. On that point, it should also be noted that a number of comments and instances of conduct by the Director-General DG‑P challenged by the applicant were made or repeated at several meetings specifically organised to address the applicant’s situation and were even confirmed by the Director-General DG‑P in his email of 27 January 2008. Likewise, the fact that the head of the MIS Division did not invite the applicant to the event intended to promote team spirit in that division, which took place at the end of 2007, was not accidental, since the head of the MIS Division explained to the applicant, by email of 18 December 2007, why she had not been invited (see page 48 of the inquiry report).
387 Second, it is implicitly but necessarily apparent from the extracts from the inquiry report reproduced in paragraphs 383 to 385 above that the panel sought to ascertain whether some of the alleged conduct of the Director-General DG‑P and, more generally, of the applicant’s line managers was intentional, that is to say, with the intention of threatening, excluding, isolating the applicant or making her working conditions more difficult and therefore, in essence, undermining her self-esteem, dignity, self-confidence or psychological integrity.
388 In the light of the case-law cited in paragraphs 375 to 377 above, that examination into whether the Director-General DG‑P and, more generally, the management, intended to cause harm, which is clear from the terms of the inquiry report, is not consistent with either the Dignity at Work Policy note or the definition of psychological harassment in the Staff Regulations.
389 Consequently, the inquiry report and, therefore, the contested decisions of 24 November 2009 and 24 March 2010 are based on an interpretation of the concept of psychological harassment which is incorrect in law.
390 For the sake of completeness, it must be noted, first, that the ECB has never asserted, in its written pleadings, that the references to intentionality in the inquiry report were intended to respond to the argument put forward by the applicant in her comments of 5 October 2009 on the draft inquiry report, according to which the Director-General DG‑P was fully aware of the applicant’s negative reaction to his remarks. Second, the ECB has never put forward any arguments to refute the applicant’s complaint that the panel incorrectly established intent as a condition for psychological harassment.
391 In the light of the foregoing, the first part of the fourth plea in law must be upheld.
The second part of the fourth plea in law, alleging, in essence, that there was no joint and contextual assessment of the conduct alleged by the applicant
392 It is apparent from the case-law that the definition of the concept of psychological harassment requires that hostile or inappropriate words, attitudes or actions must be repeated ‘over a fairly long period of time’ in order for them to come within the concept of psychological harassment. Article 12a(3) of the Staff Regulations defines ‘psychological harassment’, for officials and other employees covered by those regulations, as ‘improper conduct’ in the form of physical behaviour, spoken or written language, gestures or other acts which take place ‘over a period’, and are ‘repetitive or systematic’, which suggests that psychological harassment must be a process that occurs over time and presumes the existence of repetitive or continual conduct, which is ‘intentional’ as opposed to ‘accidental’ (see, to that effect, judgments of 13 December 2017, HQ v CPVO, T‑592/16, EU:T:2017:897, paragraph 101, and of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraphs 76 and 77).
393 That reference in the case-law concerning Article 12a of the Staff Regulations to a process that necessarily occurs over time and presumes the existence of repetitive or continual conduct can also apply by analogy for the purpose of applying the concept of psychological harassment applicable to members of staff of the ECB (see, by analogy, judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 90 and the case-law cited).
394 Furthermore, while a finding of sexual harassment does not necessarily depend on the recurrence of the unwelcome behaviour with sexual undertones, a finding of psychological harassment is the outcome of a finding of a series of acts and cannot, in principle, be made on the basis of a finding of one single isolated act. That is why, for example, the fact that a staff member may have accidentally adopted an inappropriate tone at meetings or discussions with another member of staff is not, in principle, covered by the concept of psychological harassment (judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 92).
395 However, it cannot be required that the classification of ‘psychological harassment’ should depend on the repetition over time of identical or similar acts, as that would be at odds with the notion of a process over time. As a result of that process, psychological harassment may, by definition, be the outcome of a series of different acts by one member of staff of the ECB towards another which, considered in isolation, would not necessarily constitute psychological harassment but which, viewed as a whole and in context, including by reason of their build-up over time, could be regarded as having objectively entailed an attack on the self-esteem and self-confidence of that other member of staff to whom the acts were directed (see, by analogy, judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 93).
396 That is why, in the examination as to whether the acts alleged by the applicant constitute psychological harassment, those facts should be examined both individually and jointly as part of the general working environment created by the behaviour of one member of staff towards another (judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 94).
397 In the light of the foregoing, it was for the panel to examine whether each instance of conduct complained of by the applicant, considered both in isolation and in combination with others, could objectively have resulted in an attack on her self-esteem, dignity, self-confidence or physical or psychological integrity (see paragraph 373 above).
398 In the present case, however, it must be noted that the inquiry report examines in isolation each instance of conduct or each decision contested by the applicant, without taking account of the broader context in which they occurred and without investigating whether those instances of conduct and those decisions, taken together, established the existence of the psychological harassment complained of by the applicant.
399 In view of the absence of an overall examination of all the instances of conduct, decisions and facts alleged by the applicant in support of the complaint alleging that there was psychological harassment, the conclusions reached in the contested decisions of 24 November 2009 and 24 March 2010 are vitiated by an error of law.
400 In the light of the foregoing, the second part of the fourth plea in law must be upheld, without it being necessary, first, to carry out an overall examination of all the facts, conduct and decisions relied on by the applicant in support of the complaint of alleged psychological harassment, an examination which the ECB itself did not carry out or, second, to address the applicant’s additional arguments referred to in paragraph 358 above.
401 Consequently, the fourth plea in law must be upheld.
The fifth plea in law, alleging infringement of the duty to provide assistance
402 The applicant alleges that the ECB infringed its duty to provide assistance. In the application, she claims that that infringement was demonstrated by the refusal to grant her a sufficient time dispensation in the light of the work she was carrying out for the Staff Committee, by the refusal to provide her with the assistance of a colleague for her workload on the ‘standardisation’ file or to take any effective action, by letting negative rumours about her circulate, by refusing to place her ‘out of the managerial line’ as she had requested and as her doctor advised and, finally, by the lack of a neutral assessment of the work she had carried out in 2007. In the application, the applicant also complained that the panel did not properly assess the circumstances of the case. In addition, she challenges the panel’s examination of the complaint of psychological harassment, which, in her view, did not take into account all of the facts which she had alleged. Furthermore, she alleges that the panel did not properly investigate the rumours about her as it did not verify whether they were well founded and did not demand that they be stopped. Finally, the applicant invoked the panel’s bias as evidence of a breach of the duty to provide assistance in the present case.
403 The ECB contends that the number of meetings with the Director-General DG‑P illustrates the extent and duration of the assistance provided to the applicant and the thorough nature of the administrative inquiry. The very fact that an administrative inquiry was opened proves that the ECB had indeed attempted to assist the applicant.
The ECB’s duty to provide assistance
404 Under Article 9(c) of the Conditions of Employment:
‘… The [ECB] shall apply: (i) the general principles of law common to the Member States, (ii) the rules contained in EU regulations and directives concerning social policy which are addressed to Member States … In interpreting the rights and obligations under the … Conditions of Employment, due regard shall be shown for the authoritative principles of the regulations, rules and case-law which apply to the staff of other EU institutions.’
405 Among the ‘authoritative principles of the regulations’ and ‘case-law which apply to the staff of the institutions’ referred to in Article 9(c) of the Conditions of Employment is the administration’s duty to assist officials and other servants, enshrined in Article 24 of the Staff Regulations.
406 Article 24 of the Staff Regulations, in the version applicable to the facts at issue, provided as follows:
‘The Communities shall assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties.
They shall jointly and severally compensate the official for damage suffered in such cases, in so far as the official did not either intentionally or through grave negligence cause damage and has been unable to obtain compensation from the person who did cause it.’
407 In the present case, it must be noted that the body of rules applicable to the ECB at the time of the facts at issue did not contain any provision similar to Article 24 of the Staff Regulations.
408 However, according to Article 3(4) of Circular No 1/2006, ‘if the competent senior manager becomes … aware of a possible breach of professional duties, [he or she] shall assess as soon as possible the submitted facts and evidence’. In that regard, it should be noted that compliance with the Dignity at Work Policy note is one of the ‘professional duties’ covered by that provision.
409 Furthermore, according to Article 4(1) and (2) of Circular No 1/2006, if ‘competent senior managers’ consider that the infringements of the Dignity at Work Policy note alleged by a member of staff in their unit justify, in their view, an administrative inquiry, they must inform the Director-General DG-H, who in turn is to propose to the Executive Board of the ECB that that inquiry should be opened, in accordance with Article 4(2) of that circular.
410 It follows from the provisions referred to in paragraphs 404 to 409 above that where an infringement of the Dignity at Work Policy note is at issue, compliance with that policy, which covers, inter alia, discrimination and harassment (see paragraph 367 above), implies, at the very least, that the ECB, through its Executive Board, is to open an administrative inquiry in order to establish whether such an infringement has occurred.
411 In the context of employment relations governed by the Staff Regulations, the obligation referred to in paragraph 410 above forms part of the duty to provide assistance within the meaning of Article 24 of the Staff Regulations, as interpreted by the case-law (see, to that effect, judgment of 13 December 2018, CN v Parliament, T‑76/18, not published, EU:T:2018:939, paragraphs 47 to 51).
412 Consequently, in the event of a complaint by a member of staff of the ECB alleging sufficiently serious and significant breaches of the Dignity at Work Policy note and, more generally, acts of discrimination or harassment, the ECB is under an obligation to provide assistance which, under Article 9(c) of the Conditions of Employment, must be interpreted in the light of the case-law regarding Article 24 of the Staff Regulations (see paragraphs 404 and 405 above).
413 Furthermore, by the complaint of 8 April 2008, the applicant must be considered to have submitted a request for assistance to the ECB in order to put an end to the discrimination, psychological harassment and other attacks of which she considered herself to be the victim.
414 The ECB therefore had an obligation to provide assistance to the applicant, which, moreover, the ECB has never disputed.
The infringements of the duty to provide assistance relied on by the applicant
415 First, the applicant submits that the ECB failed to fulfil its duty to assist her in so far as it did not grant her a sufficient dispensation from working time in the service, it refused to provide her with the assistance of a colleague for her workload on the ‘standardisation’ file or to take any effective measures, it allowed negative rumours to circulate about her, it refused to place her ‘out of the managerial line’ as she had requested and as her doctor advised and, finally, because it did not assess in a neutral manner the work that she had carried out in 2007.
416 First, it should be noted that the conduct and decisions referred to in paragraph 415 were prior to the request for assistance based on discrimination, psychological harassment and infringement of the Dignity at Work Policy note. The applicant considered herself a victim of all of those issues, in respect of which she submitted the complaint of 8 April 2008.
417 Second, it follows from the case-law regarding Article 24 of the Staff Regulations that, in cases of allegations of harassment, the duty to provide assistance includes, in particular, the administration’s duty to examine seriously, expeditiously and in total confidentiality, the request for assistance in which harassment is alleged and to inform the applicant of the action taken (judgments of 13 December 2018, CH v Parliament, T‑83/18, EU:T:2018:935, paragraph 65, and of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 88).
418 It must be noted that, in the present case, after receiving the request for assistance in the complaint of 8 April 2008, the ECB opened an administrative inquiry in order to establish whether the applicant’s allegations were serious and, following that inquiry, informed the applicant of the action taken.
419 Furthermore, on the date when the complaint was made, the applicant, who had been on sick leave since 17 January 2008, was no longer exposed to the conduct and decisions stated in paragraph 415 above.
420 Consequently, the applicant is not entitled to argue that the ECB infringed its duty to provide assistance in relation to the conduct and decisions referred to in paragraph 415 above.
421 In the second place, the applicant submits that the panel did not properly investigate the rumours about her, since it did not verify whether they were well founded and did not demand that those rumours be stopped.
422 However, it is apparent from paragraphs 300 to 304 above that the panel did investigate whether the rumours contested by the applicant existed and concluded that those rumours did exist. However, since it does not appear from the file that those rumours had been put into circulation or had been spread by the Director-General DG‑P, the ECB cannot be criticised for not ordering the rumours to be stopped.
423 The applicant’s complaint must therefore be rejected.
424 In the third place, as regards the applicant’s argument that the panel did not properly assess the circumstances of the case, it is apparent from the examination of the third plea in law that the panel investigated the applicant’s complaint without showing all the diligence required by the case-law referred to in paragraph 417 above, in that it failed, in particular, to examine certain conduct by the applicant’s line managers, such conduct being challenged by the applicant in the complaint (see paragraphs 241, 242, 276, 286 and 287 above). Furthermore, it follows from the examination of the first plea in law that the time limit laid down in Article 3(1) of the Rules of Procedure of the Executive Board of the ECB was not complied with, since the latter received the final inquiry report on the same day as that on which it took a decision on the applicant’s complaint (see paragraph 203 above).
425 The shortcomings in the inquiry report referred to in paragraph 424 above and the very short period of time available to the Executive Board of the ECB to analyse the inquiry report and to decide on the action to be taken regarding the applicant’s complaint show that the ECB failed to examine that complaint with sufficient seriousness, in infringement of its duty to provide assistance.
426 The applicant’s complaint must therefore be upheld.
427 In the fourth place, as regards the argument that the panel did not take into consideration all the facts alleged by the applicant in support of the complaint of psychological harassment, it must be held that that argument is, in essence, that there was an error of law vitiating the inquiry report’s conclusions with regard to the concept of psychological harassment applied by the panel and validated by the Executive Board of the ECB in the contested decision of 24 November 2009, and subsequently in the contested decision of 24 March 2010.
428 Consequently, the applicant’s argument, arising from confusion between the duty to provide assistance under Article 24 of the Staff Regulations, on the one hand, and the prohibition of harassment referred to in Article 12a of the Staff Regulations, on the other, must be rejected.
429 In the fifth and last place, as regards the panel’s alleged infringement of the principle of impartiality, it should be noted that the principle of good administration, now enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, requires the competent institutions, bodies, offices and agencies of the European Union to examine carefully and impartially all relevant aspects of the case.
430 In that regard, first, the fact of having worked for 10 years on the Staff Committee and of having, in that context, assisted members of staff in disputes between them and members of the panel is not in itself sufficient to call into question the panel’s impartiality.
431 Second, it does not appear from the documents produced by the applicant that, when the administrative inquiry took place, she was still assisting ECB members of staff in disputes between them and one or more members of the panel. Nor does it appear from the file that the panel members were involved in the facts giving rise to the applicant’s complaint.
432 The applicant’s complaint must therefore be rejected without it being necessary to rule on whether it is admissible.
433 The fifth plea in law must therefore be upheld.
434 In the light of all of the foregoing, the fourth plea in law and, in part, the third and fifth pleas in law must be upheld. The contested decisions of 24 November 2009 and of 24 March 2010 must therefore be annulled, without it being necessary to rule on the applicant’s requests for the adoption of measures of inquiry and organisation of procedure referred to in paragraph 12 above.
The claims for compensation
435 The applicant bases her claims for compensation, in essence, on the ECB’s infringement of its duty to provide assistance, on the unlawfulness of the contested decision of 24 November 2009, on the fact that the ECB furthered the rumours, defamation and attack on her dignity in the inquiry and, finally, on the fact that, since October 2008, the ECB has not reached any conclusion on her request for acknowledgement that work-related factors caused her illness. According to the applicant, those wrongful acts had a negative impact on her health, making it impossible for her to return to work, resulting in her suffering significant damage in the form of loss of salary, a reduced increase in her salary since 2007 and the loss of several opportunities for career progression. Furthermore, the applicant considers that she has suffered non-material damage which she assesses ex aequo et bono at EUR 50 000. Finally, she claims that the ECB’s attitude forced her to seek the assistance of a lawyer, which caused her material damage estimated at EUR 15 000.
436 The ECB contends that the applicant’s claims for damages should be rejected. In that regard, the ECB argues that, in the absence of an unlawful decision, the applicant cannot claim compensation. As regards the insufficient assistance provided by the ECB, the latter points out that several meetings with the Director-General DG‑P took place and that an in-depth internal inquiry was opened within a reasonable period of time. Furthermore, in the ECB’s view, the allegations in paragraph 108 of the application are too general. Finally, the ECB contends that legal costs incurred at the pre-contentious or administrative procedure stage are not recoverable and that legal costs incurred in the contentious procedure constitute costs.
437 According to settled case-law, whether the ECB incurs non-contractual liability 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 (see, to that effect, judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 165 and the case-law cited). The fact that one of those three conditions is not satisfied is sufficient for an action for damages to be dismissed (judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 167).
438 As a preliminary point, it must be noted that the applicant seeks compensation for a number of instances of harm incurred, some of which arise from the alleged errors vitiating the legality of the contested decisions of 24 November 2009 and 24 March 2010 and others from circumstances extraneous to those decisions.
The claims for compensation based on circumstances extraneous to the contested decisions of 24 November 2009 and 24 March 2010
439 In the first place, the claim for compensation for the alleged material damage consisting of legal fees which, according to the applicant, were incurred before and during the contentious procedure, is not damage that can be compensated and that claim must be rejected. First, legal fees incurred in the contentious procedure fall within the issue of the burden of recoverable costs, which is governed by Article 134 et seq. of the Rules of Procedure. Second, as regards legal fees incurred during the pre-contentious procedure, it must be noted that Article 140 of the Rules of Procedure refers, among recoverable costs, only to ‘expenses necessarily incurred by the parties for the purpose of the [court] proceedings’, thus excluding those relating to the phase prior to those proceedings. Consequently, to regard costs incurred in the pre-contentious procedure as loss for which compensation may be awarded in an action for damages would be inconsistent with the fact that costs incurred during the phase before the judicial proceedings are not recoverable (see, to that effect, and by analogy, order of 14 September 2005, Ehcon v Commission, T‑140/04, EU:T:2005:321, paragraph 79, and judgment of 8 November 2011, Idromacchine and Others v Commission, T‑88/09, EU:T:2011:641, paragraph 100).
440 In the second place, the claim for compensation based on the fact that the ECB did not reach any conclusion on the applicant’s request for recognition that her illness was work-related must be rejected. That claim is not sufficiently substantiated and the applicant has not even explained to what extent that failure to take a decision is unlawful and causes her damage.
The claims for compensation based on the unlawfulness of the contested decisions of 24 November 2009 and 24 March 2010
441 In the first place, the applicant seeks compensation, in essence, for the material and non-material damage resulting from the rumours, defamation and attack on her dignity arising from the inquiry and the contested decisions of 24 November 2009 and 24 March 2010. However, it follows from paragraphs 343 to 345 above that the foregoing instances of unlawfulness have not been established in the present case. Consequently, the applicant’s claim for compensation must be rejected in so far as it concerns the material and non-material damage referred to above.
442 In the second place, the applicant claims that the infringement of the duty to provide assistance caused her various kinds of damage. She submits that her health was unable to improve and that therefore she could not return to work, resulting in a loss of salary, a reduced salary increase since 2007 and a loss of career-progression opportunities.
443 However, it must be held the applicant has not demonstrated that there is a causal link between the infringement of the duty to provide assistance and the kinds of damage referred to in paragraph 442 above. She has not demonstrated, or even alleged, that the lack of improvement in her state of health and the fact that she was unable to return to work, with all the consequences that that entailed in terms of loss of salary and opportunities for progression, were a direct consequence of the infringement of the duty to provide assistance. The applicant’s claim for compensation must therefore be rejected in so far as it concerns the abovementioned kinds of damage.
444 Finally, if the applicant is seeking to obtain compensation for the damage caused by the discrimination and psychological harassment which she claims to have suffered, that claim must also be rejected (see, to that effect and by analogy, judgment of 10 July 2014, CG v EIB, F‑103/11, EU:F:2014:185, paragraphs 113 to 115).
445 In view of the annulment of the contested decisions of 24 November 2009 and 24 March 2010, it will be for the ECB to take all the measures to give effect to the judgment to be handed down and, therefore, if necessary, to again take a decision on the applicant’s complaint in order to determine whether the conduct complained of constitutes psychological harassment or discrimination against her.
446 In the third place, it should be noted that, according to settled case-law, the annulment of an illegal act in itself constitutes appropriate and, in principle, sufficient reparation for any non-material harm which that act may have caused (see judgment of 7 February 1990, Culin v Commission, C‑343/87, EU:C:1990:49, paragraph 26 and the case-law cited).
447 However, it is clear from the case-law that, in order to ensure, in the interest of the applicant, that the judgment setting aside the decision is effective, the EU Courts may exercise the unlimited jurisdiction conferred on them in disputes of a financial nature and may order, even of their own motion, the defendant institution to pay compensation for the damage caused by its wrongful act. In such a case, it is for the Court, taking account of all of the circumstances of the case, to assess the damage suffered by the interested parties ex aequo et bono (see, to that effect and by analogy, judgments of 20 May 2010, Gogos v Commission, C‑583/08 P, EU:C:2010:287, paragraphs 44 and 50, and of 12 July 2011, Commission v Q, T‑80/09 P, EU:T:2011:347, paragraph 57 and the case-law cited).
448 In that regard, case-law accepts that the feeling of injustice and distress caused by the fact that an individual is required to undergo a pre-contentious procedure and then a contentious procedure in order to ensure recognition of his or her rights constitutes harm which may be inferred from the mere fact that the administration acted unlawfully. That harm must give rise to reparation where it is not compensated by the satisfaction resulting from the annulment of the act in question (judgments of 13 December 2018, CH v Parliament, T‑83/18, EU:T:2018:935, paragraph 115, and of 10 July 2014, CG v EIB, F‑103/11, EU:F:2014:185, paragraph 99).
449 In the present case, the ECB rejected the applicant’s complaint, finding, inter alia, that there was no psychological harassment and no discrimination of which she claimed to be the victim, thus compelling her to bring a special appeal and then an action before the Civil Service Tribunal, for a declaration, inter alia, that the ECB had committed the alleged errors by applying the concept of psychological harassment. Furthermore, it follows from the annulment of the contested decisions of 24 November 2009 and 24 March 2010 that, to date, the applicant has still not obtained a decision definitively ruling on the existence of the infringements alleged in her complaint, even though the acts of psychological harassment which she had complained of, if established, could have had extremely destructive effects on her state of health (see, to that effect, judgment of 16 December 2015, De Loecker v EEAS, F‑34/15, EU:F:2015:153, paragraph 43 and the case-law cited).
450 The rejection of the applicant’s complaint therefore placed her in a state of insecurity, uncertainty and distress constituting, in view of the length of time that has elapsed since the facts giving rise to her complaint, non-material damage which is not capable of being made good in full by the mere annulment of the contested decisions of 24 November 2009 and 24 March 2010 (see, to that effect and by analogy, judgments of 13 December 2018, CH v Parliament, T‑83/18, EU:T:2018:935, paragraph 115, and of 10 July 2014, CG v EIB, F‑103/11, EU:F:2014:185, paragraph 100).
451 In the light of the foregoing, in the circumstances of the present case, the ECB must be ordered to pay the applicant damages assessed ex aequo et bono in the sum of EUR 20 000.
452 The action is dismissed as to the remainder.
Costs
453 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. Furthermore, under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.
454 In the present case, each of the parties has failed on several heads. However, the ECB has been largely unsuccessful, in so far as several unlawful acts vitiate the contested decisions of 24 November 2009 and of 24 March 2010 (see paragraphs 204, 354, 356, 389, 399 and 425 above) and those decisions are annulled in their entirety.
455 Furthermore, the destruction of the inquiry file by the ECB has had consequences for the conduct of the present referral proceedings, the consequences of which the ECB must bear.
456 It is therefore justified, in view of the circumstances of the present case, to order the ECB to bear, in addition to its own costs, two thirds of the costs incurred by the applicant and to order the applicant to bear one third of her own costs, relating to the initial proceedings before the Civil Service Tribunal in respect of the action in Case F‑43/10, the appeal proceedings in Case T‑114/13 P and the present referral proceedings in Case T‑483/16 RENV.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Annuls the decision of the European Central Bank (ECB) of 24 November 2009 closing the internal administrative inquiry opened following the complaint by Ms Maria Concetta Cerafogli and annuls the decision of the ECB of 24 March 2010 dismissing the special appeal brought by Ms Cerafogli;
2. Orders the ECB to pay to Ms Cerafogli the sum of EUR 20 000 by way of damages;
3. Dismisses the action as to the remainder;
4. Orders the ECB to bear, in addition to its own costs, two thirds of the costs incurred by Ms Cerafogli relating to the initial proceedings before the Civil Service Tribunal in respect of the action in Case F‑43/10, the appeal proceedings in Case T‑114/13 P and the present referral proceedings in Case T‑483/16 RENV;
5. Orders Ms Cerafogli to bear one third of her own costs relating to the initial proceedings before the Civil Service Tribunal in respect of the action in Case F‑43/10, the appeal proceedings in Case T‑114/13 P and the present referral proceedings in Case T‑483/16 RENV.
Kanninen | Schwarcz | Iliopoulos |
Delivered in open court in Luxembourg on 28 May 2020.
E. Coulon | | M. van der Woude |
Table of contents
Background to the dispute
The original proceedings before the Civil Service Tribunal which gave rise to the judgment of 12 December 2012, Cerafogli v ECB (F43/10)
The appeal before the General Court (Appeals Chamber) and the judgment of 23 September 2015, Cerafogli v ECB (T114/13 P)
Procedure for referral back
Admissibility
Preliminary observations
Rules of procedure applicable to the referral back procedure
Subject matter of the proceedings following referral back
Scope of the claims for annulment and admissibility of the claims for annulment of the contested decision of 24 March 2010
Pleas of inadmissibility relied on by the ECB in its defence
Failure to follow the pre-contentious procedure, and failure to observe the time limit applicable to special appeals and the rule of ‘consistency between the complaint and the action’
Absence of any act having adverse effect
Admissibility of the additional claim for compensation and of the new plea relied on by the applicant during the referral back procedure
Admissibility of the documents sent voluntarily by the ECB on 9 March 2017
Substance
Authenticity, validity and evidential value of the minutes of the hearings of witnesses submitted by the ECB in the referral back procedure
The first plea, alleging, in essence, infringement of the right to be assisted by a lawyer, breach of Article 6(5) and Article 7(1) and (3) of Circular No 1/2006, breach of the obligation to state reasons, breach of Article 3(1) of the Rules of Procedure of the Executive Board of the ECB and breach of Articles 51 and 52 of the Conditions of Employment
Claim alleging breach of the obligation to state reasons
Claim alleging infringement of the right to be assisted by a lawyer
Claim alleging breach of Article 7(1) and (3) of Circular No 1/2006
Claim alleging breach of Article 6(5) of Circular No 1/2006
Claim alleging breach of Article 3(1) of the Rules of Procedure of the Executive Board of the ECB
Second plea, alleging breach by the panel of its mandate
Third plea, alleging, in essence, omissions and manifest errors of assessment vitiating the inquiry report and the contested decisions of 24 November 2009 and 24 March 2010
First part of the third plea, alleging the incomplete nature of the inquiry report
– The contention that the panel failed to examine the claim relating to the lack of proper support given to the applicant in coping with her excessive workload (in particular the ECB’s refusal to recruit a part-time resource)
– The contention that the panel failed to take into account the circumstance that, first, all the applicant’s tasks had been removed from her by the Director-General DGP in March 2007 and had not been subsequently reassigned to her as communicated to her in May 2007 and, second, the Director-General DGP stated that she should leave the DGP, giving rise to uncertainty about her future career and the allocation of her tasks
– The contention that the inquiry report failed to examine the claim relating to the applicant’s isolation within the department
– The contention that the inquiry report failed to take account of the lack of an appraisal of the applicant’s performance in due time for 2007
– The contention that the panel failed to take into account the circumstance that the applicant had been refused a salary increase in 2007 because of her alleged unsatisfactory performance
– The contention that the panel failed to investigate the comments made by the Director-General DGP on the circumstance that the applicant received a very high salary compared with her colleagues
– The contention that the inquiry report makes no reference to the specific rules of the ECB applicable in cases of psychological harassment
– The contention that the inquiry report fails to mention the contribution of the social counsellor of the ECB, whose assistance the applicant had requested and obtained
– The contention that the applicant’s health problems were neither considered nor mentioned by the panel at least to describe the temporal sequence of the events
– The contention that the panel failed to examine the inconsistency of the explanations provided by the Director-General DGP for the offensive remarks that it is claimed he made about the applicant regarding her alleged bad reputation
– The contention that the panel did not investigate the refusal of the Director-General DGP to assign a colleague to assist the applicant
– The contention that the panel failed to seek information regarding the circumstance that the Director-General DGP asked the applicant to leave the Staff Committee following the temporary reduction in her working time for health reasons
– The contention that the panel did not find that there was a contradiction between the comments made by the Director-General DGP on the applicant’s alleged professional incompetence and her annual appraisals
– The failure to refer to the decision of the Director-General DGP to apply a temporary 35% reduction in working time in relation to the activity within the MIS Division, which led to a reallocation of the applicant’s workload and prevented her from continuing to work on the ‘standardisation’ file
– The contention that the inquiry report does not refer to the applicant’s request for a review of the circumstance that colleagues in the MIS Division were informed that she had received a bonus for 2006, which constituted a ‘breach of confidentiality’
– The contention that the panel did not investigate the failure of an ECB member of staff to respect the confidentiality of a letter from the applicant’s advisor of 18 January 2008
The second part of the third plea in law, alleging manifest errors of assessment
– The contention that the inquiry report exonerates the Director-General DGP for the comments that it is claimed he made about the applicant which were based on unsubstantiated rumours, and the contention that the panel also failed to take into account that those rumours were, in themselves, a form of harassment
– The contention that the panel considered that the comments made by the Director-General DGP concerning the applicant’s bad reputation, in her view offensive and unjustified, the repetition of those comments during the administrative inquiry and the refusal by the Director-General DGP to withdraw them and to apologise were not intentional acts, even though the Director-General DGP was well aware of the fragile nature of the applicant’s health and state of mind
– The contention that the inquiry report is vitiated by a manifest error in that it did not consider the refusal to award the applicant an ad personam promotion in 2008 to be discriminatory, on the basis of incorrect information, namely that she did not fulfil the criterion of two years’ service at the highest level of merit required for such a promotion
– The contention that the inquiry report was manifestly incorrect in concluding that the applicant had received the support of the DGP, whereas, despite numerous requests for assistance, no measure was taken to alleviate her excessive workload before March 2007, when her working time had been reduced because of the deterioration in her state of health
– The contention that, at page 60, the inquiry report notes, contrary to the annual appraisals which the applicant had received, that, due to the time she devoted to the Staff Committee and her absences, her working time for the service had been reduced and that that situation, combined with her ‘professional problems’, had required special attention on the part of the Director-General DGP
– The contention that the inquiry report is vitiated by a contradiction in that it notes, first, that the members of staff of the MIS Division were opposed to the applicant receiving assistance from a colleague and, second, that they showed that they were prepared to work with her
– The contention that the inquiry report is vitiated by an error in that it overlooked the fact that the other members of the DGP who had been absent on sick leave were able to resume their positions on their return, whereas, in the applicant’s case, the ‘standardisation’ file was permanently withdrawn from her after the end of the reduction in her working time on medical grounds
– The contention that the content of the inquiry report and the content of the contested decisions of 24 November 2009 and 24 March 2010 resulted in further defamation of the applicant
– The contention that the contested decision of 24 March 2010 is based on extracts from the applicant’s annual appraisals which are unfavourable to her because they were altered or taken out of context
Conclusion
The fourth plea in law, alleging infringement of the concept of psychological harassment
Preliminary observations
The first part of the fourth plea in law, alleging, in essence, that the panel did not correctly investigate whether the conduct complained of was intentional
The second part of the fourth plea in law, alleging, in essence, that there was no joint and contextual assessment of the conduct alleged by the applicant
The fifth plea in law, alleging infringement of the duty to provide assistance
The ECB’s duty to provide assistance
The infringements of the duty to provide assistance relied on by the applicant
The claims for compensation
The claims for compensation based on circumstances extraneous to the contested decisions of 24 November 2009 and 24 March 2010
The claims for compensation based on the unlawfulness of the contested decisions of 24 November 2009 and 24 March 2010
Costs