JUDGMENT OF THE GENERAL COURT (First Chamber)
24 April 2017 (*)
(Civil service — Contract staff for auxiliary tasks — Article 24 of the Staff Regulations — Request for assistance — Article 12a of the Staff Regulations — Psychological harassment — Article 90(1) of the Staff Regulations — Four-month time limit for reply under the Staff Regulations — AECE decision to open an administrative inquiry — Failure by the AECE to adopt a position on the existence of the alleged psychological harassment within the time limit for reply under the Staff Regulations — Concept of implied decision refusing the request for assistance — Non-existent act — Inadmissibility)
In Case T‑570/16,
HF, residing in Bousval (Belgium), represented by A. Tymen, lawyer,
applicant,
v
European Parliament, represented by E. Taneva and M. Ecker, acting as Agents,
defendant,
ACTION under Article 270 TFEU for, first, annulment of an implied decision allegedly taken on 11 April 2015 by the Parliament’s Authority empowered to conclude contracts of employment refusing the request for assistance submitted by the applicant on 11 December 2014 and, secondly, compensation for the harm allegedly suffered by the applicant,
THE GENERAL COURT (First Chamber),
composed of I. Pelikánová, President, P. Nihoul and J. Svenningsen (Rapporteur), Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
1 The applicant, Ms HF, was employed by the European Parliament’s Authority empowered to conclude contracts of employment (‘the AECE’) through successive contracts from 6 January to 14 February 2003, 15 February to 31 March 2003, 1 April to 30 June 2003 and 1 to 31 July 2003, as a member of the auxiliary staff, an employment category provided for in the Conditions of Employment of Other Servants of the European Communities (‘the CEOS’), in the version thereof prior to 1 May 2004. The applicant was assigned to the Audiovisual Division, which has since become a unit (‘the Audiovisual Unit’) of the Media Directorate of the Directorate-General (DG) for Information and Public Relations, which has since become the Directorate-General (DG) for Communication (‘DG Communication’). In that role she performed the tasks of assistant in category B, group V, class 3.
2 Subsequently she was employed from 1 August 2003 to 31 March 2005 by a company established in France and providing services to the Parliament as a production administrator in order to meet increased demand for services relating to production administration in the Audiovisual Unit.
3 The applicant was again employed by the AECE, this time as a member of the contract staff assigned to the Audiovisual Unit from 1 April 2005 to 31 January 2006. She was then assigned to the same unit as a member of the temporary staff from 1 February 2006 to 31 January 2012.
4 From 1 February 2012 to 31 May 2015, she remained employed as a member of contract staff for auxiliary tasks assigned to the Audiovisual Unit through successive fixed-term contracts.
5 The applicant was placed on sick leave as from 26 September 2014 and has not resumed employment with the Parliament since that time.
6 By letter of 11 December 2014, addressed to the Secretary-General of the Parliament (‘the Secretary-General’), with the Chairman of the Advisory Committee on Harassment and its Prevention at the Workplace (‘the Advisory Committee’), the President of the Parliament and the Director-General of DG Personnel in copy, the applicant, pursuant to Article 90(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), submitted a request for assistance within the meaning of Article 24 of the Staff Regulations (‘the request for assistance’), those articles being applicable by analogy to members of the contract staff under Articles 92 and 117 respectively of the CEOS. In support of that request, she claimed that she had been the victim of psychological harassment by the head of the Audiovisual Unit, which harassment took the form of behavior and spoken and written language by the Head of Unit, in particular during unit meetings. She requested that urgent measures be adopted in order to protect her immediately from her alleged harasser and that an administrative inquiry be opened by the AECE in order to establish the reality of the facts.
7 By letter of 13 January 2015, the Head of the Human Resources Unit (‘the Human Resources Unit’) of the Resources Directorate of DG Personnel, who was also the Chairman of the Advisory Committee, acknowledged receipt of the applicant’s request for assistance and informed her that the request had been forwarded to the Director-General of DG Personnel, who would rule on it in his capacity as AECE within four months, upon the expiry of which, if applicable, an implied decision refusing that request for assistance could be deemed to have been taken and subsequently be the subject of a complaint pursuant to Article 90(2) of the Staff Regulations.
8 By letter of 23 January 2015, the applicant’s legal advisor informed the Director-General of DG Personnel inter alia that the Head of the Audiovisual Unit had been informed that the request for assistance had been made and an administrative inquiry opened by the AECE. That information was contained in the minutes of a meeting of the Audiovisual Unit, contributing to the dissemination of certain information not only to the applicant’s colleagues, but also to certain persons external to the institution. During that meeting, the Head of Unit also announced that the applicant would not be returning to the Audiovisual Unit and that, consequently, a restructuring of the Newsdesk Hotline part of the Audiovisual Unit would have to be undertaken.
9 By email of 26 January 2015, an official of the Contract Staff and Accredited Parliamentary Assistants Recruitment Unit (‘the Contract Staff Recruitment Unit’) of the Directorate for Human Resources Development (‘the HR Directorate’) of DG Personnel of the Secretariat General of the Parliament, sent the applicant a ‘memorandum confirming [her] reassignment as from 21 [January] 2015’. That memorandum, also dated 26 January 2015, stated that the applicant would be assigned, with retroactive effect to 21 January 2015, to the European Union Visitors Programme (EUVP) Unit (‘the Visitors Programme Unit’) of the Directorate for Relations with the Citizens of DG Communication and that, apart from the change in assignment, her contract of employment was otherwise unaffected (‘the reassignment decision’).
10 By letter of 4 February 2015, the Director-General of DG Personnel replied to the letter from the applicant’s legal advisor of 23 January 2015 by stating that a measure keeping the applicant away from the Head of the Audiovisual Unit had been adopted, consisting in her being reassigned to the Visitors Programme Unit. With respect to the information revealed by the Head of Unit during the meeting of the Audiovisual Unit, the applicant was told that that information ‘[had] to be understood in the context of the distancing measure adopted in respect of [the applicant] and not as intimidation intended for the other members of her unit [and] even less as a new sign of harassment directed at [the applicant]’. The Director-General of DG Personnel further informed the applicant that, following an in-depth examination of her file and in response to her request that an administrative inquiry be opened, it had been decided to forward that file to the Advisory Committee, whose Chairman would keep her informed of any subsequent developments. The Director-General of DG Personnel considered that, in so doing, he had addressed the request for assistance which, within the scope of his duties, brought about the ‘closure of [the applicant’s] file’ (‘the decision of 4 February 2015’).
11 By letter of 12 February 2015, the applicant’s legal advisor requested the Director-General of DG Personnel to specify the scope of the measure announced by him in his decision of 4 February 2015 and, in particular, to state whether the distancing measure adopted in respect of the applicant was temporary in nature. He further pointed out that, under the Internal Rules for the Advisory Committee on Harassment and its Prevention in the Workplace (‘the Internal Rules on Harassment’), in particular Articles 14 and 15 thereof, it was not for the Advisory Committee to rule on a request for assistance; it could merely provide a confidential report to the Secretary-General who, in any event, was responsible for taking measures pursuant to Article 16 of those internal rules. The applicant thus took the view that the Director-General of DG Personnel — and not the Advisory Committee — remained the person responsible for ruling on her request for assistance in his capacity as AECE.
12 By letter of 4 March 2015, the Director-General of DG Personnel reiterated his view that, by his decision to forward the request for assistance to the Advisory Committee, he had ‘closed the file as regard[ed] the scope of his duties’ and that, even if the Parliament had entrusted him with the AECE’s powers to rule on requests for assistance submitted pursuant to Article 24 of the Staff Regulations, the fact remained that he could not disregard the Internal Rules on Harassment, which entrusted the Secretary-General with the task of acting when confronted with a situation of harassment over a protracted period. He further stated that the distancing measure adopted in respect of the applicant removing her from the Audiovisual Unit and placing her with the Visitors Programme Unit had also been put in place both at her request, as put forward in the request for assistance, and ‘in the interest of the service in order to address increasing needs within the [Visitors Programme Unit]’ and that the reassignment would continue until the end of her contract.
13 By email of 9 March 2015, the applicant was summoned by the Advisory Committee to present her case on 25 March 2015.
14 By letter dated 24 April 2015, the applicant lodged a complaint pursuant to Article 90(2) of the Staff Regulations against: first, the reassignment decision in so far as, by that decision, the AECE reassigned her permanently and not temporarily to the Visitors Programme Unit; secondly, the decision of 4 February 2015, by which the Director-General of DG Personnel ruled on the request for assistance by considering the case to be closed ‘within the scope of his duties’; and, thirdly, a decision allegedly taken on 11 April 2015, by which the AECE impliedly refused the request for assistance.
15 By letter of 20 August 2015, the Secretary-General, in his capacity as AECE, decided to uphold in part the applicant’s complaint of 24 April 2015. Regarding the reassignment of the applicant to the Visitors Programme Unit, the Secretary-General noted that that reassignment was necessarily temporary in nature and had to be maintained for the duration of the administrative inquiry, which was still ongoing, whilst essentially rejecting the arguments put forward by the applicant challenging the merits or the detailed rules for the distancing measure (‘the decision of 20 August 2015’).
16 However, in the decision of 20 August 2015, the Secretary-General decided to amend the decision of 4 February 2015 in that, in that decision, the Director-General of DG Personnel had considered, incorrectly, that the AECE had closed the procedure relating to the request for assistance. In that regard, he stated that the request for assistance would give rise subsequently to a definitive decision of the Director-General of DG Personnel and that, consequently, contrary to the applicant’s assertion, no implied decision refusing the request for assistance had been taken, with the result that her claim was inadmissible on this point.
Facts arising subsequently to the action being lodged
17 By letter of 8 December 2015, the Director-General of DG Personnel informed the applicant of his intention to consider her request for assistance unfounded further to, inter alia, the Advisory Committee’s hearing the submissions of the Head of Unit and of 14 other officials and servants of the Audiovisual Unit.
18 The Director-General found, in essence, that although the facts alleged occurred repeatedly, the tone used by the Head of the Audiovisual Unit in his verbal communication and in the written correspondence provided by the applicant did not seem inappropriate in the context of the facts and the working conditions prevailing within that unit. He stated that, ‘whilst acknowledging that the words used [had] sometimes been somewhat frank and direct, it [was] nevertheless clear that they [did not] go beyond the reasonable limits of a professional discussion between a Head of Unit and the members of his or her team’. He took the view, inter alia, that those conversations had taken place in departmental meetings during which problems within the organisation had been aired, so that they could be considered as having been expressed as part of day-to-day management, with a view to resolving issues that seemed obvious to most of the members of the unit. As for the emails sent by the Head of the Audiovisual Unit to the applicant, the Director-General of DG Personnel took the view that it ‘[was] obvious that they were intended either to improve the functioning of the service or to serve as a reminder of his instructions’, so that, ‘viewed in that context, their content [could] not be considered inappropriate’.
19 In accordance with Article 41(2)( a) of the Charter of Fundamental Rights of the European Union, the Director-General of DG Personnel invited the applicant to submit her observations on his intention to declare her request for assistance unfounded, at her convenience and orally or in writing. The applicant was given until 20 December 2015 to inform the Director-General of DG Personnel of her intentions in that regard.
20 By letter of 17 December 2015, the applicant’s legal advisor informed the Director-General of DG Personnel that she would lodge her observations in writing. However, relying in that regard on the judgment of 23 September 2015, Cerafogli v ECB (T‑114/13 P, EU:T:2015:678), he requested to be provided with the inquiry report drawn up by the Advisory Committee, which request he reiterated by letter of 5 February 2016.
21 By letter of 9 February 2016, the Director-General of DG Personnel gave the applicant until 1 April 2016 to lodge her observations on his intention to refuse the request for assistance. He further stated, in response to her request to be provided with the inquiry report, that the Advisory Committee had merely provided him with an opinion finding that the applicant had not been the victim of any psychological harassment. It had not provided him with any report such as referred to in Article 14 of the Internal Rules on Harassment, as such reports were drawn up by the Advisory Committee only when it found that there was psychological harassment.
22 By decision of 3 June 2016, the Director-General of DG Personnel, acting in his capacity as AECE, refused the request for assistance (‘the decision of 3 June 2016’). In that decision, he stated inter alia that the applicant had been provided with a complete and detailed set of reasons for why, on 8 December 2015, he intended to refuse the request for assistance, whilst pointing out that he alone was responsible for dealing with the request for assistance and that the Advisory Committee had no decision-making power in that regard. In his view, the applicant had no subjective right to be provided with an inquiry report, opinion or other records of the Advisory Committee.
23 As to the procedural irregularities alleged by the applicant, the Director-General of DG Personnel considered inter alia that, in putting the Advisory Committee in copy when submitting the request for assistance, the applicant had not formally lodged a complaint with the Advisory Committee for the purposes of the Internal Rules on Harassment.
24 Explaining that he had formally referred the matter to the Advisory Committee on 2 February 2015, the Director-General of DG Personnel found that the delay in dealing with the request for assistance and the inquiry, including the six months and 11 days it took to hold hearings, could be explained by the non-availability of the persons summoned by the Advisory Committee and the distribution of the Parliament’s staff over three workplaces and by the complexity of the case, which required testimony to be obtained from a large number of people.
25 As to the substance, the Director-General of DG Personnel upheld his analysis as set out in the letter of 8 December 2015 and accordingly decided not to endorse the position that the situation as described by the applicant came within the definition of psychological harassment within the meaning of Article 12a of the Staff Regulations.
Procedure
26 By application lodged at the Registry of the Civil Service Tribunal of the European Union on 17 November 2015, the applicant brought the present action, initially registered under number F‑142/15.
27 By document lodged on 29 January 2016 at the Registry of the Civil Service Tribunal, the Parliament put forward a plea of inadmissibility pursuant to Article 83 of that court’s Rules of Procedure, on which the applicant lodged her statement of observations on 22 February 2016.
28 By letter from the Registry of 28 April 2016, the parties were informed of the decision of the Civil Service Tribunal, taken pursuant to the first subparagraph of Article 83(3) of its Rules of Procedure, to join examination of the Parliament’s plea of inadmissibility with the merits of the case.
29 On 6 June 2016 the Parliament lodged its statement in defence at the Registry of the Civil Service Tribunal, attaching inter alia in annexes the correspondence referred to in paragraphs 17 to 25 above, whilst the applicant lodged her reply on 18 July 2016.
30 Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), the present case was transferred to the General Court as it stood on 31 August 2016 and must henceforth be dealt with in accordance with the Rules of Procedure of the General Court. The case was accordingly registered under number T‑570/16 and assigned to the First Chamber.
31 Following the second exchange of pleadings that had been authorised by the Civil Service Tribunal under Article 55 of its Rules of Procedure, the written phase of the procedure was closed pursuant to the Rules of Procedure of the General Court.
32 By letter from the Registry of 29 November 2016, the applicant was invited by the General Court, pursuant to Article 90(1) of its Rules of Procedure, to indicate whether she had lodged a complaint against the decision of 3 June 2016 pursuant to Article 90(2) of the Staff Regulations and, if so, to provide it with a copy of that complaint.
33 By letter sent to the Registry of the General Court on 13 December 2016, the applicant confirmed that she had lodged such a complaint on 6 September 2016, and produced a copy thereof.
34 By letter from the Registry of 19 January 2017, the Parliament was invited by the General Court, pursuant to Article 90(1) of its Rules of Procedure, to indicate to it whether it had followed up on the complaint of 6 September 2016 and, in the event that it the AECE had explicitly ruled on the complaint, to provide it with a copy of that decision.
35 On 1 February 2017, the Parliament confirmed to the General Court that it had explicitly ruled on the complaint of 6 September 2016. It provided a copy of the decision of 4 January 2017 by which the Secretary-General had, in his capacity as AECE, rejected that complaint.
36 As the parties did not request that a hearing be held pursuant to Article 106(1) of the Rules of Procedure, the General Court considered that it had sufficient material available to it from the case file and decided to give judgment in the case without holding an oral hearing.
Forms of order sought
37 The applicant claims that the Court should:
– annul the decision which, in her submission, was impliedly taken on 11 April 2015, by which the AECE refused the request for assistance;
– annul the decision of 20 August 2015 rejecting the complaint of 24 April 2015;
– order the Parliament to pay damages, to be fixed ex aequo et bono at EUR 50 000, by way of compensation for the harm suffered;
– order the Parliament to pay the costs.
38 The Parliament contends that the Court should:
– dismiss the action as manifestly inadmissible;
– in the alternative, dismiss the action as unfounded;
– order the applicant to pay the costs.
Law
The claim for annulment
39 In its plea of inadmissibility, the Parliament argued in essence that the decision of 4 February 2015 was the act adversely affecting the applicant by which the AECE had replied to the request for assistance. That decision, which was taken within the time limit for reply under the third sentence of Article 90(1) of the Staff Regulations, prevented there being a subsequent implied decision rejecting the same request, in this case the expiry of the four-month time limit for reply under the Staff Regulations, running as from 11 December 2014, the date on which that request for assistance was made. The decision the legality of which is challenged by the applicant is thus non-existent.
40 In the statement in defence, the Parliament then stated that the decision of 4 February 2015 was in fact a first explicit response from the AECE to the request for assistance with respect to the distancing measure adopted and the opening of an administrative inquiry. It stated, however, that that decision had been partly reported by the Secretary-General in the decision of 20 August 2015. The Secretary-General considered that, pursuant to Article 24 of the Staff Regulations, the Director-General of DG Personnel still had to rule on whether or not the situation of psychological harassment alleged by the applicant existed and that, therefore, it would necessarily have to rule again at the end of the administrative inquiry, which it ultimately did in the decision of 3 June 2016.
41 In her observations of 22 February 2016, the applicant challenged the Parliament’s analysis by stating that, under Article 90(1) of the Staff Regulations, an implied rejection decision had been taken under the third sentence of Article 90(1) of the Staff Regulations due to the Parliament’s explicit failure to state its position on 11 April 2015 as to the whether there was psychological harassment as alleged in the request for assistance.
42 She stated, first of all, that on this point the Parliament, in the decision of 4 February 2015, merely stated that it had referred the matter to the Advisory Committee, stating that, on that date, no position had been adopted by the AECE in response to the applicant’s request as to the existence of the facts alleged and their categorisation as psychological harassment within the meaning of Article 12a of the Staff Regulations. Secondly and especially, in the decision of 20 August 2015 ruling on the complaint of 24 April 2015, the Secretary-General had annulled the decision of 4 February 2015 in so far as the AECE claimed that it had closed the matter of the request for assistance merely by referring the matter to the Advisory Committee.
43 The applicant thus concluded in her observations of 22 February 2016 that, if the Parliament’s standpoint were to be endorsed, that would meant that it would be sufficient for the AECE to refer a matter to the Advisory Committee in order to avoid its obligation to reply within the four-month time limit under the Staff Regulations to any request addressed to it by a servant, including a request for assistance made pursuant to Article 24 of the Staff Regulations.
44 In the reply, the applicant stated inter alia that, ‘when [she had] brought [the present] action, her form of order seeking annulment was admissible [and that it was] only subsequently to the action being lodged that the form of order seeking annulment [had] become devoid of purpose due to the substitution of the decision of 3 June 2016 for that of 11 April 2015’.
45 As a preliminary point, it should be remembered that, according to settled case-law, the existence of an act adversely affecting the official concerned within the meaning of Article 90(2) and Article 91(1) of the Staff Regulations is an essential condition of admissibility for any action brought by officials against the institution employing them (see judgments of 13 July 1993, Moat v Commission, T‑20/92, EU:T:1993:63, paragraph 39; of 6 July 2004, Huygens v Commission, T‑281/01, EU:T:2004:207, paragraph 125; and order of 16 July 2015, FG v Commission, F‑20/15, EU:F:2015:93, paragraph 41 and the case-law cited).
46 In that regard, where a request for assistance within the meaning of Article 24 of the Staff Regulations is made to the AECE or, as the case may be, the authority vested with the appointing powers of an institution (‘the appointing authority’) pursuant to Article 90(1) of the Staff Regulations, it must, by virtue of the duty to provide assistance and when faced with an incident which is incompatible with the good order and tranquility of the service, intervene with all the necessary vigour and respond with the rapidity and solicitude required by the circumstances of the case so as to ascertain the facts and, having done so, to take the appropriate action in full knowledge of the matter. To that end, it is sufficient that the official or other staff member who is seeking the protection of his institution provide prima facie evidence that the attacks of which he claims to have been the victim actually took place. When such evidence is provided, the institution concerned is then under an obligation to take the necessary measures, in particular to conduct an administrative inquiry, with the cooperation of the complainant, to determine the facts which gave rise to the complaint (judgments of 26 January 1989, Koutchoumoff v Commission, 224/87, EU:C:1989:38, paragraphs 15 and 16; of 25 October 2007, Lo Giudice v Commission, T‑154/05, EU:T:2007:322, paragraph 136; and of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 87).
47 In cases of allegations of harassment, the duty to provide assistance includes, in particular, the duty of the administration to examine seriously, expeditiously and in total confidentiality, the request for assistance in which the harassment is alleged and to inform the complainant of the action to be taken in respect of that complaint (judgments of 27 November 2008, Klug v EMEA, F‑35/07, EU:F:2008:150, paragraph 74, and of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 88).
48 With regard to the measures to be taken in a situation which, as in the present case, is covered by Article 24 of the Staff Regulations, the administration enjoys a broad discretion — subject to review by the EU judicature — regarding the choice of measures and methods for implementing Article 24 of the Staff Regulations (judgments of 15 September 1998, Haas and Others v Commission, T‑3/96, EU:T:1998:202, paragraph 54; of 25 October 2007; Lo Giudice v Commission, T‑154/05, EU:T:2007:322, paragraph 137; and of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 89).
49 In the present case, it is common ground that, after the request for assistance was made, the AECE replied to the applicant within the four-month time limit for reply laid down in the third sentence of Article 90(1) of the Staff Regulations, informing her of the measures it had taken in response thereto under its duty of assistance. Those measures, set out in the decision of 4 February 2015 and the adoption of which necessarily implied that the AECE took the view that it had before it some evidence of the reality of facts potentially coming under Article 12a of the Staff Regulations, consisted in essence in the reassignment of the applicant by way of distancing measure and the opening of an administrative inquiry, which was entrusted to the Advisory Committee.
50 It must therefore be determined whether, notwithstanding the adoption by the AECE of the explicit decision of 4 February 2015, it can be held that, under the third sentence of Article 90(1) of the Staff Regulations, the failure by the AECE to adopt a position on the reality of the facts alleged and allegedly constituting psychological harassment within the meaning of Article 12a of the Staff Regulations within a period of four months starting on 11 December 2014, the date on which the request for assistance was made, enables a finding that an implied decision was taken, in the event on 11 April 2015, and that that implied decision amounts to refusal by the AECE to recognise the reality of the facts alleged and to categorise them as psychological harassment within the meaning of Article 12a of the Staff Regulations.
51 In that regard, it is true that the General Court had held previously that, generally speaking, a letter by which the person concerned is informed that their request is being examined does not amount to upholding the request in question, with the result that, notwithstanding such an informative letter having been issued, the failure to provide a definitive response to the initial request of the official or other staff member within the time limit laid down in Article 90(1) of the Staff Regulations in principle constitutes an implied decision by the AECE or the appointing authority, as the case may be, refusing the request (judgment of 3 July 2012, Marcuccio v Commission, T‑594/10 P, EU:T:2012:336, paragraph 21).
52 However, as regards a request for assistance within the meaning of Article 24 of the Staff Regulations made pursuant to Article 90(1) of the Staff Regulations, the person concerned is seeking the assistance of their administration in the form of adoption of measures to remedy the situation.
53 The measures that the AECE or the appointing authority may deem necessary to adopt when it takes the view that the person concerned has adduced some evidence of the reality of the alleged facts include the decision by the administration to open an administrative inquiry in order to establish the reality of the facts in collaboration with the party who made the request for assistance.
54 In that regard, when the AECE or the appointing authority fails to respond in any way to a request for assistance within the meaning of Article 24 of the Staff Regulations within the four-month time limit laid down in Article 90(1) thereof, it may be held that there has been an implied decision by that authority refusing the request for assistance. In that case, it must be presumed that that authority considered that the evidence produced in support of the request for assistance did not constitute some evidence of the reality of the alleged facts triggering the duty of assistance which, in the present case, concerned an alleged disregard of Article 12a of the Staff Regulations. The finding that there was an implied decision refusing the request for assistance is thus closely linked to the failure by the administration to adopt measures such as those required under its duty of assistance provided for in Article 24 of the Staff Regulations since, in that scenario, the administration, impliedly but necessarily, determines that the matter does not come within the scope of the latter provision.
55 This is in essence what the General Court held in paragraphs 41 and 42 of the judgment of 25 October 2007, Lo Giudice v Commission (T‑154/05, EU:T:2007:322), which, as is apparent from paragraphs 9 to 23 of that judgment, involved a situation in which, in a case of alleged psychological harassment, the appointing authority had not adopted any assistance measure in response to a request for assistance within the four-month time limit for reply laid down in Article 90(1) of the Staff Regulations. In that case, it was only subsequently to the lodging of a complaint by the applicant that the administration had decided to open an administrative inquiry, the results of which had been communicated to the administration merely days before the adoption of the response to the complaint, which occurred seven months after it had been lodged.
56 Such a situation is different, however, from the one at issue in the present case in which, in response to a request for assistance, the AECE considered that it had before it sufficient evidence to warrant opening an administrative inquiry to establish whether the facts alleged amounted to psychological or sexual harassment within the meaning of Article 12a of the Staff Regulations.
57 In such a situation, that inquiry must be allowed to run its course so that the administration, enlightened by the findings of the inquiry report, may adopt a definitive position in that regard, so that it may either decide that no action is to be taken on the request for assistance or, where the facts alleged are proven and come within Article 12a of the Staff Regulations, inter alia decide that disciplinary proceedings are to be initiated so that, if appropriate, disciplinary sanctions may be imposed on the alleged harasser (see, to that effect, judgments of 11 July 1974, Guillot v Commission, 53/72, EU:C:1974:80, paragraphs 3, 12 and 21; of 9 November 1989, Katsoufros v Court of Justice, 55/88, EU:C:1989:409, paragraph 16; and of 12 July 2011, Commission v Q, T‑80/09 P, EU:T:2011:347, paragraph 84).
58 However, to hold that in a case such as the present one that there was an implied decision by the AECE on 11 April 2016 in the sense that it found that there was no psychological harassment or that there was a refusal to make such a finding amounts to attributing to the AECE, throughout the administrative inquiry, a provisional position that it did not have before it a case coming within Article 12a of the Staff Regulations.
59 The very point of the administrative inquiry, however, is to confirm or negate the existence of psychological harassment within the meaning of Article 12a of the Staff Regulations. Accordingly, the AECE must not prejudge the outcome of the inquiry and precisely must not adopt a position — not even impliedly — on the reality of the alleged harassment before having received the results of the administrative inquiry. In other words, it is inherent in the fact that an administrative inquiry has been opened that the administration must not adopt a position prematurely, essentially on the basis of the unilateral description of the facts provided in the request for assistance, as it must, on the contrary, reserve its position until that inquiry, which must be undertaken as an adversarial procedure and with the participation of the alleged harasser (see, to that effect, judgment of 23 September 2015, Cerafogli v ECB, T‑114/13 P, EU:T:2015:678, paragraphs 35 to 41), promptly and in compliance with the ‘reasonable time’ principle, has been completed.
60 In that regard, in such a scenario the administration also remains under a duty to conduct the administrative inquiry through to completion, irrespective of whether the alleged harassment has ceased in the meantime and even when the party who made the request for assistance or the alleged harasser has left the institution (see, to that effect, judgment of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 122).
61 Conducting the administrative inquiry through to completion is also important because, should the AECE find that there has been psychological harassment upon completion of the administrative inquiry, which may have been conducted with the assistance of separate department of the AECE such as the Advisory Committee, this in itself is likely to have a beneficial effect in the therapeutic process of recovery of an official or other member of staff who has been harassed (judgment of 8 February 2011, Skareby v Commission, F‑95/09, EU:F:2011:9, paragraph 26) and may also be used by the victim for the purposes of a national court action, in respect of which the AECE’s duty to provide assistance under Article 24 of the Staff Regulations will apply and will not expire at the end of the servant’s period of employment. On the other side of the equation, the conduct of an administrative inquiry through to completion may make it possible to disprove the allegations made by the purported victim, thereby making it possible to repair the damage which such an accusation, should it prove to be unfounded, may have caused to the person named as the alleged harasser by an inquiry procedure (judgment of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraphs 123 and 124).
62 However, given that, unlike in disciplinary proceedings, the Staff Regulations make no specific provision as to the time within which an administrative inquiry must be conducted by the administration, inter alia in cases involving psychological harassment, the fact that an administrative inquiry which was opened in response to the request for assistance within four months after that request was made is still ongoing after that time does not give rise to an implied decision by the administration by which the AECE denied the reality of the facts alleged in the request for assistance or by which it considered that they did not constitute psychological harassment within the meaning of Article 12a of the Staff Regulations.
63 Consequently, the conclusion in the present case is that the AECE, in response to the request for assistance and within the four-month time limit for reply laid down in the third sentence of Article 90(1) of the Staff Regulations, adopted measures pursuant to Article 24 of the Staff Regulations, of which the applicant was informed by the decision of 4 February 2015, and responded positively to the request for assistance, although it remained bound to provide, subsequently and in the light of the outcome of the administrative inquiry it had decided to open, a response to the applicant on the question whether the facts relied on in support of the request for assistance were well founded and, if so, whether they came within the definition of psychological harassment within the meaning of Article 12a of the Staff Regulations.
64 However, in the circumstances of the present case and as found by the AECE in the decision of 20 August 2015 dismissing the complaint of 24 April 2015 as inadmissible on that point, there was no implied decision taken on 11 April 2015 rejecting the request for assistance that could be construed as an adoption of position by the AECE by which it refused to categorise the facts alleged in that request as amounting to psychological harassment within the meaning of Article 12a of the Staff Regulations.
65 This conclusion is supported by the adoption during the present litigation proceedings of the decision of 3 June 2016, by which the AECE adopted a position on precisely this question by refusing to categorise the facts as alleged as psychological harassment within the meaning of Article 12a of the Staff Regulations, inter alia on the basis of the conclusions set out in that regard by the Advisory Committee, to which it had entrusted the conduct of the administrative inquiry.
66 In the light of all the foregoing considerations, the forms of order seeking annulment must be rejected as inadmissible, as they are directed at a non-existent decision.
The claim for damages
67 In support of her head of claim seeking financial compensation, the applicant submits that the implied refusal of the request for assistance, comprising a refusal by the AECE to find that the facts as alleged in that request came within the definition of psychological harassment within the meaning of Article 12a of the Staff Regulations, caused her non-material damage due to the failure by the AECE to endorse the merits of her accusations against the Head of the Audiovisual Unit and, in that regard, the Advisory Committee’s failure to observe Article 11 of the Internal Rules on Harassment, under which it was required to hear the applicant’s submissions within 10 days after the request for assistance was made and to hear testimony from witnesses within one month after hearing the party who lodged the complaint with the Advisory Committee. The AECE, who should be held responsible for those problems within the Advisory Committee, thus disregarded Article 41 of the Charter of Fundamental Rights and failed to act within a reasonable time in the present case.
68 The Parliament contends that the claim for financial compensation should be dismissed as inadmissible and, in any event, unfounded.
69 In that regard, suffice it to note that claims for compensation for material or non-material damage must be rejected where, as in the present case, they are closely associated with claims for annulment which have themselves been dismissed as unfounded (judgments of 6 March 2001, Connolly v Commission, C‑274/99 P, EU:C:2001:127, paragraph 129; of 14 September 2006, Commission v Fernández Gómez, C‑417/05 P, EU:C:2006:582, paragraph 51; and of 30 April 2014, López Cejudo v Commission, F‑28/13, EU:F:2014:55, paragraph 105).
70 In the present case, the claim for financial compensation is closely associated with the claim for annulment, which was directed at a non-existent decision of the AECE.
71 In any event, as regards the complaint about the unreasonable time taken to conduct the administrative inquiry, the Court finds that a similar submission and claim of non-material damage were put forward by the applicant in the complaint lodged on 6 September 2016 against the decision of 3 June 2016, which was rejected by decision of the AECE of 4 January 2017. Therefore, they may be relied on in support of an action brought against those decisions pursuant to Article 270 TFEU.
72 In the light of the foregoing, the claim for financial compensation must be dismissed as inadmissible, as must the action in its entirety.
Costs
73 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. However, under Article 135(2) of the Court’s Rules of Procedure, the Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if he has made the opposite party incur costs which the Court holds to be unreasonable or vexatious.
74 In the present case, the Court notes that the applicant was partially misled as to whether there had been an implied decision refusing her request for assistance, both by the content of the email of 13 January 2015 from the Head of the Human Resources Unit and by the inaccurate and even contradictory responses of the Director-General of DG Personnel in his letters of 4 February 2015 and 4 March 2015. Nevertheless, the erroneous nature of the information provided by the AECE had been identified by the Secretary-General in the decision of 20 August 2015 ruling on the complaint, as he had rejected the complaint of 24 April 2015 as inadmissible on the ground that it was directed against a non-existent implied decision.
75 Accordingly, it should be declared that the Parliament is to bear its own costs and it should be ordered to pay half of those incurred by applicant.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Dismisses the action;
2. Orders the European Parliament to bear its own costs and to pay half the costs incurred by HF;
3. Orders Ms HF to bear half of her costs.
Pelikánová | Nihoul | Svenningsen |
Delivered in open court in Luxembourg on 24 April 2017.
[Signatures]