JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Single Judge)

18 December 2015

Case F‑104/13

Carlo De Nicola

v

European Investment Bank (EIB)

(Civil service — EIB staff — Psychological harassment — Investigation procedure — Report of the Committee of Inquiry — Incorrect definition of psychological harassment — Decision of the President of the EIB not to follow up a complaint — Annulment — Actions for damages)

Application:      under Article 270 TFEU, in which Mr De Nicola essentially seeks, first, annulment of the decision of 29 April 2013 by which the President of the European Investment Bank (EIB or ‘the Bank’) rejected his complaint of psychological harassment, and, second, an order that the EIB compensate him for the harm he considers he has suffered as a result of that harassment.

Held:      The decision of 29 April 2013 by which the President of the European Investment Bank rejected Mr De Nicola’s complaint of psychological harassment is annulled. The remainder of the action is dismissed. The European Investment Bank is to bear its own costs and is ordered to pay the costs incurred by Mr De Nicola.

Summary

1.      Actions brought by officials — Staff of the European Investment Bank — Act adversely affecting an official — Definition — Preparatory act — Opinion of the Committee of Inquiry on harassment

(Staff Code of Conduct of the European Investment Bank, Art. 3.6; Policy on Dignity at Work of the European Investment Bank, para. 5.5)

2.      Officials — Staff of the European Investment Bank — Internal inquiry into alleged psychological harassment — Opinion of the Committee of Inquiry vitiated by irregularities — Non-compliance with the definition of harassment set out in the Bank’s internal rules — Requirement that harasser should have malicious intent — Unlawful

(Staff Code of Conduct of the European Investment Bank, Art. 3.6.1; Policy on Dignity at Work of the European Investment Bank, para. 2.1)

1.      Only measures which give rise to binding legal effects capable of directly and immediately affecting the applicant’s interests by significantly altering his legal position constitute acts adversely affecting him. In the case of acts or decisions adopted by a procedure involving several stages, and particularly where they are the culmination of an internal procedure, it is in principle only those measures which definitively determine the position of the administration upon the conclusion of that procedure which are open to challenge and not intermediate measures whose purpose is to prepare the final decision. Acts preparatory to a decision do not adversely affect officials and an applicant may rely on defects in acts prior to the decision and closely linked to it only in the context of an action challenging the decision adopted at the end of the procedure.

Consequently, since the opinion of the Committee of Inquiry of the European Investment Bank is not an act which is open to challenge as such, claims seeking its annulment must be dismissed as inadmissible.

However, the unlawfulness of the opinion of the Committee of Inquiry may be relied on in support of claims for annulment of the final decision adopted by the President of the EIB. It follows from the internal rules entitled ‘Policy on Dignity at Work’, adopted by the European Investment Bank and referred to in Article 3.6 of the EIB’s Staff Code of Conduct, that the opinion of the Committee of Inquiry is a substantive procedural requirement, and any factual or procedural irregularities committed in the drawing up of that opinion constitute a defect which renders the final decision of the President of the EIB adopted on the basis of that opinion unlawful.

(see paras 44-46)

See:

Judgment of 11 November 2014 in De Nicola v EIB, F‑52/11, EU:F:2014:243, paras 144 and 145

2.      Under Article 3.6.1 of the European Investment Bank’s Code of Conduct, psychological harassment is defined as repeatedly hostile or tasteless remarks, acts or behaviour over a fairly long period by one or more members of staff towards another member of staff. The EIB’s Policy on Dignity at Work states that whether or not the conduct in question is intentional is irrelevant. The decisive principle is that harassment and bullying is unwelcome and unacceptable behaviour which demeans the self-respect and confidence of the recipient.

It follows that, according to the EIB’s internal rules, there is psychological harassment giving rise to a duty for the EIB to provide assistance where a harasser’s remarks, acts or behaviour have objectively, by their content, resulted in the demeaning of the self-respect and confidence of a recipient within the EIB, without any need to prove that the harasser behaved intentionally.

An opinion of the Committee of Inquiry on psychological harassment which requires that conduct must be intentional in order to constitute psychological harassment is not consistent with those binding internal rules.

(see paras 50, 51, 53)

See:

Judgment of 11 November 2014 in De Nicola v EIB, F‑52/11, EU:F:2014:243, para. 154