Case T‑570/16

HF

v

European Parliament

(Civil service — Contract staff for auxiliary tasks — Article 24 of the Staff Regulations — Request for assistance — Article 12a of the Staff Regulations — Four-month time-limit for reply under the Staff Regulations — Decision of the administration to open an administrative inquiry — Administration not adopting a position as to 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)

Summary — Judgment of the General Court (First Chamber), 24 April 2017

1.      Actions brought by officials — Acts adversely affecting an official — Concept — Implied decision rejecting a request for assistance — Included — Exception — Administration not replying because of the need to conduct an inquiry

(Staff Regulations, Arts 12a, 24 and 90(1))

2.      Officials — Obligation of administration to provide assistance — Implementation in the case of psychological harassment — Bringing of a request for assistance — Opening of an administrative inquiry — Need to conduct the inquiry until its conclusion

(Staff Regulations, Arts 12a and 24)

3.      Officials — Obligation of administration to provide assistance — Implementation in the case of psychological harassment — Bringing of a request for assistance — Opening of an administrative inquiry — Inquiry continuing beyond expiry of the time-limit under the Staff Regulations for replying to the request for assistance — No implied rejection decision

(Staff Regulations, Arts 12a and 24)

1.      Where the administration 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. 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.

Such a situation is different, however, from that in which, in response to a request for assistance, the administration considers that it has 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. 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 paras 54, 56, 57)

2.      In the case of an administrative inquiry opened by the administration following the bringing of an application for assistance by reason of an allegation of psychological harassment, the point of such an inquiry is to confirm or negate the existence of psychological harassment within the meaning of Article 12a of the Staff Regulations. Accordingly, the administration may not prejudge the outcome of the inquiry and in particular may not adopt a position, even impliedly, as to 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 the conclusion of that inquiry, which must be undertaken as an adversarial procedure and with the participation of the alleged harasser.

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.

Conducting the administrative inquiry through to completion is also important because, should the administration 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 that authority, that 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 and may also be used by the victim for the purposes of a national court action, in respect of which the administration’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. Equally, carrying 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.

(see paras 59-61)

3.      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, particularly in cases involving psychological harassment. Thus, the fact that an administrative inquiry opened within four months following a request for assistance is still ongoing after that time does not give rise to an implied decision by the administration denying the reality of the facts alleged in the request or regarding them as not constituting psychological harassment within the meaning of Article 12a of the Staff Regulations.

(see para. 62)