JUDGMENT OF THE GENERAL COURT (Appeal Chamber)
12 July 2011 (*)
(Appeal – Civil service – Officials – Cross-appeal – Psychological harassment – Article 12a of the Staff Regulations – Memorandum on psychological harassment policy at the Commission – Duty on the part of the administration to provide assistance – Article 24 of the Staff Regulations – Scope – Request for assistance – Provisional distancing measures – Duty to have regard for the welfare of officials – Liability – Claim for damages – Unlimited jurisdiction – Conditions for implementation – Staff report – Action for annulment – Interest in bringing proceedings)
In Case T‑80/09 P,
APPEAL against the judgment of the European Union Civil Service Tribunal (First Chamber) of 9 December 2008 in Case F‑52/05 Q v Commission [2008] ECR-SC I-A-1-409 and II-A-1-2235, seeking to have that judgment set aside,
European Commission, represented by V. Joris, D. Martin and B. Eggers, acting as Agents,
appellant,
the other party to the proceedings being
Q, former official of the European Commission, residing in Domsjö (Sweden), represented by S. Rodrigues and Y. Minatchy, lawyers,
applicant at first instance,
THE GENERAL COURT (Appeal Chamber),
composed of M. Jaeger, President, I. Pelikánová (Rapporteur) and A. Dittrich, Judges,
Registrar: C. Kristensen, Administrator,
having regard to the written procedure and further to the hearing on 21 January 2011,
gives the following
Judgment
1 In its appeal, brought under Article 9 of Annex I to the Statute of the Court of Justice, the European Commission is seeking to have set aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 9 December 2008 in Case F‑52/05 Q v Commission [2008] ECR-SC I-A-I-409 and II-A-I-2235 (‘the judgment under appeal’), by which the Tribunal annulled its implied decision to refuse the request for assistance made by Q on 3 May 2004 pursuant to Article 24 of the Staff Regulations of the European Communities (‘the request for assistance’ and ‘the Staff Regulations’ respectively), in so far as it refused to take a provisional distancing measure, and ordered it to pay to Q the sum of EUR 15 500 by way of reparation for non-material damage suffered as a result of the illegality of that decision and of the failure of the administration to fulfil its duty to have regard for the welfare of officials.
Facts
2 The background to the dispute is set out in paragraphs 18 to 101 of the judgment under appeal.
The proceedings at first instance and the judgment under appeal
3 By application lodged at the Registry of the Court of First Instance on 4 July 2005, Q brought an action seeking, firstly, annulment of the implicit decision to reject the request for assistance, secondly, annulment of her career development reports drawn up for the periods from 1 January to 31 October 2003 and from 1 November to 31 December 2003 respectively (‘the 2003 CDRs’) and, thirdly, an order against the Commission to pay her damages. The action was originally lodged at the Registry of the Court of First Instance (now the General Court) under the reference T‑252/05.
4 By order of 15 December 2005, the General Court, pursuant to Article 3(3) of Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7), referred the present case to the Tribunal. The action was lodged as Case F‑52/05.
5 By the judgment under appeal, the Civil Service Tribunal partially upheld the action, annulling the implied decision to refuse the request for assistance, in so far as it refused to take a provisional distancing measure, and ordering the Commission to pay to Q the sum of EUR 18 000 by way of damages. It dismissed the remainder of the application.
Procedure before the General Court and forms of order sought by the parties
6 By document lodged at the Registry of the General Court on 27 February 2009, the Commission brought the present appeal.
7 On 9 June 2009, Q lodged her response, in which she also brought a cross-appeal against the judgment under appeal. Furthermore, she requested anonymity, which the Registry immediately granted.
8 By letter lodged on 24 June 2009, the Commission requested leave to submit a brief reply.
9 By decision of 3 July 2009, the President of the Appeal Chamber granted that request.
10 On 24 August 2009, the Commission lodged a reply, in which it also replied to the cross-appeal, in accordance with Article 143(2) of the Rules of Procedure of the General Court.
11 By letter lodged on 24 September 2009, Q requested leave to submit further pleadings in the cross-appeal.
12 By decision of 6 October 2009, the President of the Appeal Chamber granted that request.
13 On 15 October 2009, Q submitted a rejoinder.
14 On 13 November 2009, Q lodged further pleadings in the cross-appeal.
15 On 5 January 2010, the Commission lodged a reply to the further pleadings in the cross-appeal. On the same day, the written procedure was concluded.
16 By letter lodged on 11 February 2010, the Commission made an application under Article 146 of the Rules of Procedure to be heard in the oral stage of the procedure.
17 After hearing the report of the Judge-Rapporteur, the General Court (Appeal Chamber) decided to open the oral procedure and, in the framework of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure, put a number of written questions to the parties, to be answered at the hearing.
18 The parties presented oral argument and answered the written and oral questions put by the Court at the hearing on 21 January 2011. The replies to the Court’s written questions were noted in the minutes of the hearing.
19 The Commission claims that the Court should:
– set aside the judgment under appeal in so far as it upholds the second plea in the action at first instance, alleging the illegality of the implied decision to refuse to take a provisional distancing measure, and the claims in that action seeking compensation for damage suffered as a result of that illegality and of the administration’s failure to fulfil its duty to have regard for the welfare of officials;
– dismiss the cross-appeal;
– dismiss the application at first instance or, in the alternative, refer the case back to the Civil Service Tribunal;
– make an appropriate order as to the costs of the proceedings before the Civil Service Tribunal and of the main appeal or, in the alternative, reserve the costs of the proceedings before the Civil Service Tribunal and of the main appeal;
– order Q to pay the costs of the cross-appeal.
20 Q contends that the Court should:
– dismiss the main appeal as inadmissible and, in any event, unfounded;
– declare the cross-appeal admissible;
– set aside the judgment under appeal,
– uphold her claims for annulment and damages submitted at first instance;
– order the Commission to pay the entire costs.
The main appeal
21 The main appeal, brought under Article 9 of Annex I to the Statute of the Court of Justice, is seeking to have the judgment under appeal set aside inasmuch as it annulled the implied decision to refuse the request for assistance, in so far as it refused to take a provisional distancing measure, and ordered the Commission to pay to Q the sum of EUR 15 500 by way of reparation for the non-material damage suffered as a result of the illegality of that decision and of the failure of the administration to fulfil its duty to have regard for the welfare of officials.
Admissibility
22 Q argues that the main appeal is inadmissible, inasmuch as, in the two pleas in law on which it is based, the Commission asks the Appeal Chamber to rule again on facts which have been determined once and for all by the court at first instance. The Commission is not entitled to ask the Appeal Chamber, in the first plea in the main appeal, to review the findings on which the Civil Service Tribunal based its conclusion that she should be compensated for the non-material damage she suffered as a result of the Commission’s infringement of the duty to have regard for the welfare of officials, revealed by some of the acts alleged in the request for assistance. Also, in the second plea in the main appeal, the Commission is not entitled to challenge implicitly before the Appeal Chamber, in the light of the documents in the case, the findings on which the court at first instance based its conclusion that, in the circumstances of the present case, the Commission’s implied refusal to take a provisional distancing measure was sufficient to incur the Community’s non-contractual liability.
23 The Commission claims that the plea of inadmissibility raised by Q should be rejected.
24 According to Article 225a EC and the Article 11(1) of Annex I to the Statute of the Court of Justice, an appeal to the General Court shall be limited to points of law. It shall lie on the grounds of lack of jurisdiction of the Civil Service Tribunal, a breach of procedure before it which adversely affects the interests of the appellant as well as the infringement of Community law by the Civil Service Tribunal. Moreover, Article 138(1)(c) of the Rules of Procedure provides that the appeal must contain the pleas in law and legal arguments relied on.
25 It is apparent from the foregoing provisions that an appeal is only possible on grounds relating to the infringement of rules of law, to the exclusion of any assessment of the facts. The court at first instance has sole jurisdiction to find and appraise the facts, except in a case where the factual inaccuracy of its findings arises from evidence adduced before it. The appraisal of the facts by the court at first instance does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the appeal court (see Case T‑107/07 P Rossi Ferreras v Commission [2008] ECR-SC I-B-1-5 and II-B-1-31, paragraph 29 and the case-law cited).
26 In the present case, the Commission is not asking the appeal court, by the first plea, taken in two parts, and by the second plea, to re-examine facts which have already been found and evaluated by the court at first instance.
27 In the first part of the first plea, it alleges that, in the judgment under appeal, the Civil Service Tribunal infringed the condition governing the incurring by the Community of non-contractual liability connected with the existence of unlawful conduct, as interpreted by the Court of Justice in Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraphs 43 and 44, and by the General Court in Case T‑57/99 Nardone v Commission [2008] ECR-SC I-A-2-83 and II-A-2-505, paragraphs 162 to 164.
28 The first part of the first plea therefore raises a point of law and, consequently, must be declared admissible.
29 The second part of the first plea covers, in essence, three main grounds of appeal.
30 The first ground alleges that, in the judgment under appeal, the Civil Service Tribunal infringed Articles 90 and 91 of the Staff Regulations, inasmuch as it granted Q compensation on a basis which was not relied on either in the request, within the meaning of Article 90(1) of the Staff Regulations, or in the complaint, within the meaning of Article 90(2) of the Staff Regulations, or in the application at first instance. At the hearing, the Commission stated that that amounted to alleging that the Civil Service Tribunal had ruled ultra petita by changing the subject-matter of the dispute.
31 The second ground of appeal alleges infringement of the obligation to state reasons for judgments, in that the Civil Service Tribunal did not state the reasons which led it to give certain facts alleged in the request for assistance, taken together, the legal characterisation of an administrative fault capable of incurring the liability of the Community.
32 Finally, the third ground of appeal, which is an alternative to the second ground, alleges that the Civil Service Tribunal committed an error in the legal characterisation of certain facts alleged in the request for assistance, by holding that these, taken as a whole, constituted an administrative fault capable of incurring the liability of the Community.
33 The second part of the first plea therefore raises points of law and, consequently, must be declared admissible.
34 Finally, by the second plea, the Commission complains that the Civil Service Tribunal infringed the condition governing the incurring by the Community of non-contractual liability connected with the existence of unlawful conduct, Articles 7 and 24 of the Staff Regulations and the obligation to state reasons for judgments, inasmuch as, in point 2 of the operative part of the judgment under appeal, it partly upheld Q’s claims seeking compensation for the damage resulting from the unlawfulness of the implied decision rejecting the request for assistance, after having held, in paragraphs 250, 251 and 254 of the judgment under appeal, that the condition connected with the existence of unlawful conduct was satisfied, owing to the illegality of the Commission’s implied decision refusing to take a provisional distancing measure, as established in paragraphs 209 to 214 of the judgment under appeal, and to the delay in opening the administrative inquiry.
35 The second plea in the main appeal therefore raises points of law and, consequently, must be declared admissible.
36 It follows from the foregoing that the plea of inadmissibility raised by Q must be rejected, in so far as it is directed against the main appeal and the pleas or parts of pleas relied on to support it.
Substance
37 It is apparent from paragraphs 27, 29 to 32 and 34 above, that, in support of the main appeal, the Commission raises a first plea, of which the first part alleges infringement of the condition governing the incurring by the Community of non-contractual liability connected with the existence of unlawful conduct, and the second part infringement of Articles 90 and 91 of the Staff Regulations, of the obligations to state reasons for judgments and of the condition governing the incurring by the Community of non-contractual liability connected with the existence of unlawful conduct, and a second plea, alleging infringement of the condition governing the incurring by the Community of non-contractual liability connected with the existence of unlawful conduct, of Articles 7 and 24 of the Staff Regulations and of the obligation to state reasons for judgments.
The first part of the first plea, alleging infringement of the condition governing the incurring by the Community of non-contractual liability connected with the existence of unlawful conduct
– Arguments of the parties
38 The Commission criticises the Civil Service Tribunal for having held that the condition governing the incurring by the Community of non-contractual liability connected with the existence of unlawful conduct was satisfied, without having established the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals, in accordance with the applicable case-law (Bergaderm and Goupil v Commission, paragraph 27 above, paragraphs 43 and 44, and Nardone v Commission, paragraph 27 above, paragraphs 162 to 164).
39 Q contends that the first part of the first plea in law should be rejected, since it relies on case-law resulting from the judgment in Bergaderm and Goupil v Commission, paragraph 27 above, which is not applicable to Civil Service proceedings.
– Findings of the Court
40 A dispute between an official and the institution to which he is or was answerable concerning compensation for damage is pursued, where it originates in a relationship of employment between the person concerned and the institution, under Article 236 EC and Articles 90 and 91 of the Staff Regulations and, as regards in particular the question of its admissibility, lies outside the sphere of application of Article 235 EC and the second paragraph of Article 288 EC and of Article 46 of the Statute of the Court of Justice (see the order in Case T‑114/08 P Marcuccio v Commission [2009] ECR-SC I-B-1-53 and II-B-1-313, paragraph 12 and the case-law cited).
41 The Staff Regulations are themselves an independent instrument, the sole purpose of which is to regulate legal relations between the institutions and their officialsby establishing reciprocal rights and obligations between them (see, to that effect, Case T‑342/04 Adam v Commission [2006] ECR-SC I-A-2-23 and II‑A‑2‑107, paragraph 34). The Staff Regulations have thus created, in the legal relations between the institutions and their officials, a balance of reciprocal rights and obligations which must not be infringed by either the institutions or the officials (see, to that effect, the judgment of the Court of Justice in Case 167/86 Rousseau v Court of Auditors [1988] ECR 2705, paragraph 13, and the judgment of the Court of First Instance in Case T‑13/95 Kyrpitsis v ESC [1996] ECR-SC I-A-167 and II‑503, paragraph 52). This balance of rights and obligations is intended primarily to preserve the relationship of trust which must exist between the institutions and their officials, in order that citizens may be assured that the tasks in the public interest entrusted to the institutions are carried out effectively (see, to that effect and by analogy, Case C‑274/99 P Connolly v Commission [2001] ECR I‑1611, paragraphs 44 to 47).
42 It is also apparent from settled case-law that, in disputes arising from relations between the institutions and their officials, a right to reparation is recognised if three conditions are satisfied: the illegality of the allegedly wrongful act committed by the institutions, actual harm suffered, and the existence of a causal link between the act and the damage alleged to have been suffered (judgment in Case T‑82/91 Latham v Commission [1994] ECR-SC I-A-15 and II‑61, paragraph 72; order in Case T‑172/00 Pierard v Commission [2001] ECR-SC I-A-91 and II‑429, paragraph 34, and judgment in Case T‑249/04 Combescot v Commission [2007] ECR-SC I-A-2-181 and II-A-2-1219, paragraph 49).
43 This solution is unaffected by the judgment in Bergaderm and Goupil v Commission, paragraph 27 above, which requires, as regards the condition concerning the illegality of the allegedly wrongful act committed by the institutions and in the interests of harmonising the different liability regimes, a finding that there has been a sufficiently serious breach of a rule of law intended to confer rights on individuals. Indeed, it is apparent from paragraphs 39 to 43 of the judgment in Bergaderm and Goupil v Commission, paragraph 27 above, that that particular condition and the purpose of harmonisation relate only to the non-contractual liability of the Community under the second paragraph of Article 288 EC and the liability of the Member States for infringement of Community law.
44 Furthermore, the difference between, on the one hand, the conditions for implementing the liability of the Community for damage caused to its officials and former officials owing to an infringement of statutory provisions and, on the other hand, the conditions governing the liability of the Community vis-à-vis third parties owing to an infringement of other provisions of Community law is justified, in the light of the balance of rights and obligations which the Staff Regulations has specifically established in the relations between the institutions and their officials, in order to assure European citizens that the tasks in the general interest entrusted to the institutions are carried out effectively.
45 Although, in the judgment in Nardone v Commission, paragraph 27 above (paragraphs 162 to 173), the General Court examined whether the alleged illegality constituted a sufficiently serious breach of a rule of law intended to confer rights on individuals, such an examination is not required since, in disputes arising from relationships between the institutions and their officials, it is apparent from settled case-law that a finding of illegality is on its own sufficient for regarding as satisfied the first of the three conditions necessary for the Community to incur liability for damage caused to its officials owing to an infringement of Community law by the Civil Service (see paragraph 42 above).
46 The first part of the first plea in law must therefore be rejected as unfounded.
The second part of the first plea in law, alleging infringement of Articles 90 and 91 of the Staff Regulations, of the obligations to state reasons for judgments and of the condition governing the incurring by the Community of non-contractual liability connected with the existence of unlawful conduct
– Arguments of the parties
47 The Commission complains that, in the judgment under appeal, the Civil Service Tribunal infringed Articles 90 and 91 of the Staff Regulations, the obligation to state reasons for judgments and the condition governing the incurring by the Community of non-contractual liability connected with the existence of unlawful conduct, inasmuch as it granted Q compensation for the damage resulting from an infringement of the duty to have regard for the welfare of officials, revealed by certain acts alleged in the request for assistance.
48 First, the Commission maintains that the Civil Service Tribunal infringed Articles 90 and 91 of the Staff Regulations inasmuch as it granted Q compensation on the basis of a wrongful act in the performance of public duties which was not relied on either in the claim for damages brought on 3 May 2004, attached to the request for assistance (‘the compensation claim’), or in the complaint of 26 November 2004, or in the application at first instance.
49 Second, the Commission considers that the Civil Service Tribunal infringed the obligation to state reasons for judgments, in that it did not set out the reasons which led it to conclude, in paragraphs 236 and 237 of the judgment under appeal, that certain acts alleged in the request for assistance, taken as a whole, could be given the legal characterisation of an administrative fault capable of giving rise to reparation in the action before it. The finding of ‘a certain failure ... to comply with its duty to have regard for the welfare of officials’ is not equivalent to a finding of a serious and manifest infringement of the duty to have regard for the welfare of officials. Furthermore, the Civil Service Tribunal contradicted itself by holding that none of the facts alleged in the request for assistance had undermined Q’s personality, dignity or physical or psychological integrity.
50 Third, the Commission maintains that the Civil Service Tribunal infringed the condition governing the incurring by the Community of non-contractual liability connected with the existence of unlawful conduct, in that, in this case, it held the Community liable solely on the basis of an infringement of the duty to have regard for the welfare of officials.
51 In any event, the Commission maintains that the facts or actions which the Civil Service Tribunal described, in paragraph 236 of the judgment under appeal, as revealing a certain failure by the administration to comply with its duty to have regard for the welfare of officials could not be characterised as an administrative fault capable of incurring the non-contractual liability of the Community.
52 Q contends that the second part of the first plea should be rejected.
53 First of all, Q contends that the complaint alleging infringement of Articles 90 and 91 of the Staff Regulations should be rejected, on the ground that, in support of her compensation claim, she referred, in essence, to damage relating to the deterioration in her state of health as a result of the failure by the administration to comply with its duty to have regard for the welfare of officials in the compensation claim, in the complaint of 24 November 2004 and also, expressly, in the application at first instance. Moreover, according to the case-law, the submissions and arguments made to the EU judicature in support of those heads of claim need not necessarily appear in the complaint, but must be closely linked to it.
54 Q then contends that the ground of appeal alleging an infringement of the obligation to state reasons should be rejected. The Civil Service Tribunal set out, in paragraph 236 of the judgment under appeal, the reasons why, in the present case, the administration had failed to comply with the duty to have regard for the welfare of officials. By so doing, the court at first instance established the existence of an administrative fault capable of incurring the liability of the Community.
55 Q contends, finally, that the plea alleging infringement of the condition governing the incurring by the Community of non-contractual liability connected with the existence of unlawful conduct should be rejected. Failure to comply with the duty to have regard for the welfare of officials may be invoked by an official, irrespective of the infringement of a specific provision of the Staff Regulations, in all cases in which the administration has ruled on a situation without taking account of his rights and interests.
– Findings of the Court
56 According to the combined provisions of Article 236 EC, Article 1 of the Statute of the Court of Justice and Article 91(1) of the Staff Regulations, the Civil Service Tribunal exercises, at first instance, jurisdiction in disputes between the Communities and any person to whom the Staff Regulations apply regarding the legality of an act adversely affecting such person.
57 According to the second sentence of Article 91(1) of the Staff Regulations, in disputes of a financial character the Civil Service Tribunal has unlimited jurisdiction. That jurisdiction entrusts the Civil Service Tribunal with the task of providing a complete solution to the disputes brought before it (Case C‑135/06 P Weißenfels v Parliament [2007] ECR I‑12041, paragraph 67, and Case C‑197/09 RX-II M v EMEA [2009] ECR I‑12033, paragraph 56). It is primarily intended to enable the Civil Service Tribunal to guarantee the effectiveness of the judgments it pronounces in staff cases, so that it may award compensation of its own motion to a person to whom the Staff Regulations apply if it considers that the annulment of the act which adversely affects him and which contains errors of law is not sufficient to assist the official concerned in enforcing his rights or to protect his interests effectively, and that the annulment of that act would constitute an excessive penalty for the irregularity committed and that the award of damages to the party concerned constitutes the form of compensation which best meets both his interests and the requirements of the department (see, to that effect, the judgments of the Court of Justice in Case 24/79 Oberthür v Commission [1980] ECR 1743, paragraphs 13 and 14, and Case C‑583/08 P Gogos v Commission [2010] ECR I‑4469, paragraph 50; and the judgment of the General Court in Case T‑10/02 Girardot v Commission [2004] ECR-SC I‑A‑109 and II‑483, paragraphs 86, 87 and 89 and the case-law cited). In such a case, it is for the Civil Service Tribunal to assess, taking account of all of the circumstances of the case, the damage suffered by the party concerned ex aequo et bono (Oberthür v Commission, paragraph 14, and Gogos v Commission, paragraph 44).
58 However, it is settled case-law that the second sentence of Article 91(1) of the Staff Regulations is governed by the first sentence, with the result that that provision confers unlimited jurisdiction on the court only where there exists a dispute regarding the legality of an act adversely affecting an official, within the meaning of Article 90(2) of the Staff Regulations (see Case T‑54/92 Schneider v Commission [1994] ECR-SC I‑A‑281 and II‑887, paragraph 49 and the case-law cited, and Case T‑79/92 Ditterich v Commission [1994] ECR-SC I‑A‑289 and II‑907, paragraph 37 and the case-law cited).
59 Furthermore, under Article 91(2) of the Staff Regulations, an appeal may be brought before the Civil Service Tribunal only if the appointing authority has previously had a complaint submitted to it pursuant to Article 90(2) of the Staff Regulations, within the period prescribed therein, and the complaint has been rejected by express or implied decision. Article 90(2) of the Staff Regulations provides that a complaint may be submitted to the appointing authority against an act adversely affecting a person to whom the Staff Regulations apply either where the appointing authority has taken a decision or where it has failed to adopt a measure prescribed by the Staff Regulations. An act adversely affecting an official may consist, inter alia, in an implied or express rejection of a prior request addressed by the person concerned to the appointing authority, in accordance with Article 90(1) of the Staff Regulations.
60 If the person to whom the Staff Regulations apply wishes to contest the legality of an act adversely affecting him, he may submit a complaint direct to the appointing authority and, if it is rejected, he may then bring an action before the Civil Service Tribunal. It is established case-law that, following the rejection of a complaint against an act adversely affecting him, the person to whom the Staff Regulations apply may bring an action seeking the annulment of the act adversely affecting him and/or compensation (see Schneider v Commission, paragraph 58 above, paragraph 52 and the case-law cited, and Ditterich v Commission, paragraph 58 above, paragraph 40 and the case-law cited).
61 If, on the other hand, the illegality complained of by the official does not constitute an act adversely affecting him within the meaning of the Staff Regulations, but an administrative fault committed by the administration, he may only initiate the procedure by submitting a request to the appointing authority pursuant to Article 90(1) of the Staff Regulations; if that request is rejected, its rejection will constitute a decision adversely affecting him, against which he may lodge a complaint which may subsequently, as the case may be, form the subject-matter of an action (see Schneider v Commission, paragraph 58 above, paragraph 53 and the case-law cited, and Ditterich v Commission, paragraph 58 above, paragraph 41 and the case-law cited).
62 It follows that, when an official seeks compensation for damage he considers he has suffered in the absence of an act adversely affecting him, he must, as a general rule, follow a two-stage pre-litigation procedure, namely, a request and then a complaint against the decision rejecting his request for compensation, in accordance with Article 90(1) and (2) of the Staff Regulations.
63 It is thus apparent from Articles 90 and 91 of the Staff Regulations that the Civil Service Tribunal, when hearing an action brought by an official concerning the illegality of an act adversely affecting him, cannot, even of its own motion, by virtue of its unlimited jurisdiction under the second sentence of Article 91(1) of the Staff Regulations, award compensation to that person unless such compensation seeks to make reparation for damage suffered by the official owing to the illegality of the act adversely affecting him, which is the subject of the action, or, at the very least, damage arising out of an illegality which is closely connected to that act (see, to that effect and by analogy, the order in Case C‑12/05 P Meister v OHIM [2006] ECR-SC I‑B-2-23 and II-B-2-143, paragraphs 112 to 116, and the judgment in Gogos v Commission, paragraph 57 above, paragraphs 49 to 53).
64 In the present case, it is apparent from paragraphs 232 to 242 of the judgment under appeal, that, in respect of the ‘claims seeking compensation for the damage resulting from the alleged psychological harassment’, the Civil Service Tribunal awarded Q the sum of EUR 500 by way of compensation for the ‘non-material damage’ she suffered as a result of the Commission’s administrative fault, which ‘contributed to [Q’s] isolation within her unit’. The administrative fault established in that regard consists in ‘breaches by the Commission of its duty to have regard for the welfare of officials’ or, as stated in paragraph 236 of the judgment under appeal, ‘a certain failure by the Commission to comply with its duty to have regard for the welfare of officials’, revealed by ‘some of the facts relied on by [Q] in support of her compensation claim ... considered as a whole’. Those breaches are set out in paragraphs 156 to 160, 164, 171 and 180 of the judgment under appeal and consist, for the Commission, firstly and as regards the extension of Q’s probation, in not having previously made complaints to her and in having deprived her and the persons whose views she wished to be heard of a hearing by the Reports Committee; secondly, in having allocated isolated offices to her until the summer of 2004; thirdly, in not having assigned any tasks to Q between January and June 2003; and, fourthly, in having been slow to respond to her request for annual leave relating to the period from 19 July to 27 August 2004 and in having finally deducted the days corresponding to that request from her balance of annual leave, even though Q had, on 5 July 2004, submitted a medical certificate for the period from 17 July to 27 August 2004, which had not been challenged by the administration.
65 It is apparent from the findings of the Civil Service Tribunal in paragraphs 112, 115 and 232 of the judgment under appeal, which are not disputed by the Commission in this appeal, that, by her compensation claim, Q was seeking reparation for material damage, constituted by a serious effect on her state of health, demonstrated by numerous medical certificates and opinions, and unfitness to perform her duties normally within her unit, as a result of the psychological harassment, within the meaning of Article 12a(3) of the Staff Regulations, complained of in her request for assistance, and that, since the Commission had not replied to that request within a period of four months, that failure to reply gave rise, pursuant to Article 90(1) of the Staff Regulations, to a decision rejecting it. It is also apparent, from the aforementioned findings of the Civil Service Tribunal, and from those in paragraph 117 of the judgment under appeal, that the action at first instance sought, in essence, the annulment of the implied decision rejecting the request for assistance and the compensation claim, pursuant to Article 24 of the Staff Regulations, and, as a consequence of that annulment, an order against the Commission to pay Q the compensation requested by way of reparation for the ‘damage resulting from that alleged psychological harassment’.
66 It should be pointed out in that regard that the duty to provide assistance laid down in Article 24 of the Staff Regulations is concerned with the defence of officials, by the institutions, against acts of third parties and not against acts of the institutions themselves, the review of which falls under other provisions of the Staff Regulations (see, to that effect, Case 178/80 Bellardi-Ricci and Others v Commission [1981] ECR 3187, paragraph 23, and Case 98/81 Munk v Commission [1982] ECR 1155, paragraph 21). Although the first paragraph of Article 24 is devised primarily to protect officials against attacks and maltreatment by third parties, it also imposes on the administration a duty to provide assistance in a case in which the perpetrator of the acts referred to by that provision is another official (see, to that effect, Case 18/78 V v Commission [1979] ECR 2093, paragraph 15, and Case T‑254/02 L v Commission [2005] ECR-SC I‑A‑63 and II‑277, paragraph 85 and the case-law cited).
67 The second paragraph of Article 24 of the Staff Regulations concerns compensation for damage caused to an official by acts of third parties or other officials referred to in the first paragraph of that article, provided that he has been unable to obtain compensation for such damage from the persons who caused it (see, to that effect, Case C‑365/05 P Schmidt-Brown v Commission [2006] ECR‑SC I-B-2-17 and II-B-2-107, paragraph 78). The admissibility of an action for damages brought by an official pursuant to the second paragraph of Article 24 of the Staff Regulations is thus conditional on national remedies having been exhausted, provided that they protect the persons concerned effectively and may culminate in compensation for the alleged damage (see L v Commission, paragraph 66 above, paragraph 148 and the case-law cited).
68 The special liability regime established by the second paragraph of Article 24 of the Staff Regulations is based on the duty of the administration to protect the health and safety of its officials and agents against attacks or ill-treatment by third parties or other officials, of which they may be victim in the exercise of their duties, particularly in the form of psychological harassment, within the meaning of Article 12a(3) of the Staff Regulations. It is a strict liability regime, which is different from the ordinary law regime of Community liability in the context of the Civil Service, as evoked in Article 234 of the judgment under appeal and also in paragraph 42 above, which requires an official who wishes to obtain compensation from the Community to show that he has suffered damage as a consequence of wrongful conduct on the part of an institution (see, to that effect, Case T‑59/92 Caronna v Commission [1993] ECR II‑1129, paragraphs 25 and 68, and L v Commission, paragraph 66 above, paragraphs 143 to 146 and 147 to 153). Moreover, that special strict liability regime must be distinguished from the scheme to compensate officials for illnesses contracted or accidents suffered in the exercise of their duties or for the worsening of such illnesses, in accordance with Article 73 of the Staff Regulations and the common rules concerning cover against the risk of accident and occupational disease of officials adopted on the basis of that article. Indeed, in the absence of any express provision in the rules concerning cover against the risk of accident and occupational disease of officials, it cannot be considered that those rules exclude the right of the official and his dependents to seek additional compensation where the institution is liable for compensation, either under the ordinary law, if it is held liable for the illness or accident of that official, or on the basis of Article 24(2) of the Staff Regulations, if that accident or illness is the result of attacks by third parties or other officials in relation to that official’s exercise of his duties in the service of the Communities and if the benefits of the statutory regime are not adequate to compensate in full for the damage suffered (see, to that effect, Joined Cases 169/83 and 136/84 Leussink v Commission [1986] ECR 2801, paragraphs 11 to 12).
69 It is apparent from the findings of the Civil Service Tribunal in the judgment under appeal themselves, as recalled in paragraphs 64 and 65 above, that the compensation claim was based only on reparation for the material damage which Q alleged she had suffered owing to the psychological harassment alleged in the request for assistance and emanating from several members of the Commission’s Directorate-General (DG) for Personnel and Administration, namely, acts personally attributable to other officials, not owing to an administrative fault on the part of the Commission, the review of which falls under other provisions of the Staff Regulations, in accordance with the case-law cited in paragraphs 42 and 66 above.
70 It follows that the action at first instance sought, as regards the claims for compensation for the damage allegedly suffered by Q, the same relief as that sought by the compensation claim, pursuant to the second paragraph of Article 24 of the Staff Regulations, and also sought, as a consequence of the rejection of the compensation claim, an order against the Commission to pay her the compensation requested by way of reparation for the damage suffered owing to the illegality of that decision, in the amount of EUR 100 000. On the other hand, those same findings do not permit the conclusion that, by her compensation claim, Q sought compensation for non-material damage resulting from an administrative fault on the part of the Commission, constituted by its failure to comply with its duty to have regard for the welfare of officials as evidenced by certain facts complained of in the request for assistance.
71 Furthermore, it cannot be considered that the administrative fault attributed to the Commission in this case, as described in paragraph 64 above, is closely linked to the implied decision rejecting the compensation claim, which sought, pursuant to the second paragraph of Article 24 of the Staff Regulations, compensation for the material damage suffered by Q owing to the psychological harassment alleged in the request for assistance. Although the facts alleged in the request for assistance to constitute psychological harassment, within the meaning of Article 12a(3) of the Staff Regulations, must be regarded as acts attributable to their perpetrators, namely the members of the Directorate-General (DG) for Personnel and Administration specifically mentioned by name, such is not the case with the implied decision rejecting the request for assistance and the compensation claim, which is an act attributable to the Commission. In any event, the acts of which the Civil Service Tribunal took account to find that the Commission had committed an administrative fault (see paragraph 64 above) are prior to the date on which the implied decision rejecting the request for assistance and the compensation claim was taken, namely 3 September 2004. That fault, which therefore pre-existed the implied decision cannot be regarded as closely linked to that decision, within the meaning of the case-law cited in paragraph 63 above.
72 Therefore, although an action had been lawfully brought before the Civil Service Tribunal, pursuant to Articles 90 and 91 of the Staff Regulations, concerning the legality, in the light of the provisions of the second paragraph of Article 24 of the Staff Regulations, of the implied decision rejecting the compensation claim, the Civil Service Tribunal could not, without infringing those same articles, rule on whether certain facts alleged in the request for assistance could, taken as a whole, be described as an administrative fault of the Commission causing non-material damage to Q for which reparation must be made.
73 The Civil Service Tribunal therefore infringed Articles 90 and 91 of the Staff Regulations and ruled ultra petita, by changing the subject-matter of the dispute, in that, as is apparent from paragraph 242 of the grounds and point 2 of the operative part, it ordered the Commission to pay compensation for the non-material damage arising from an administrative fault which helped to isolate Q within her department, constituted by the Commission’s failure to comply with its duty to have regard for the welfare of officials, as evidenced by certain acts alleged in the request for assistance.
74 Consequently, and without it even being necessary to examine the other claims or arguments put forward in support of the second part of the first plea, the latter must be upheld and point 2 of the operative part of the judgment under appeal must be annulled, in so far as it orders the Commission to pay Q compensation in the amount of EUR 500.
The second plea in law, alleging infringement of the condition governing the incurring by the Community of non-contractual liability connected with the existence of unlawful conduct, of Articles 7 and 24 of the Staff Regulations and of the obligation to state the reasons for judgments
Arguments of the parties
75 The Commission complains that the Civil Service Tribunal infringed the condition governing the incurring by the Community of non-contractual liability connected with the existence of unlawful conduct, Articles 7 and 24 of the Staff Regulations and the obligation to state the reasons for judgments, inasmuch as, in point 2 of the operative part of the judgment under appeal, it partly upheld Q’s claims seeking compensation for the damage resulting from the illegality of the implied decision rejecting the request for assistance, after having held, in paragraphs 250, 251 and 254 of the judgment under appeal, that the condition connected with the existence of unlawful conduct was satisfied, owing to the illegality of the Commission’s implied decision refusing to take a provisional distancing measure, as found in paragraphs 209 to 212 of the judgment under appeal, and to the delay in opening the administrative inquiry.
76 First, the Commission maintains that the Civil Service Tribunal infringed the condition governing the incurring by the Community of non-contractual liability connected with the existence of unlawful conduct, Articles 7 and 24 of the Staff Regulations and the obligation to state the reasons for judgments, in paragraphs 209 to 212, 250, 251 and 254 of the judgment under appeal, in that it held, without even having found a manifest and serious infringement of the limits placed on its discretion in this case, in accordance with the case-law (Bergaderm and Goupil v Commission, paragraph 27 above), that the non-contractual liability of the Community was incurred in so far as it had refused to take a provisional distancing measure. In the case of a provisional distancing measure in respect of an official who is allegedly the victim of psychological harassment, the institutions enjoy, under Article 7 of the Staff Regulations, a wide discretion, recognised by the case-law (Case T‑136/98 Campogrande v Commission [2000] ECR-SC I‑A‑267 and II‑1225, paragraph 42) and the Memorandum of 22 October 2003 on psychological harassment policy at the Commission [C (2003) 3644] (‘the Memorandum on psychological harassment’). Therefore, the administration is under no general and absolute obligation automatically to take a preventive measure, such as a reassignment or transfer at the least suspicion of psychological harassment. Such reassignments or transfers would, in any event, be contrary to Article 7 of the Staff Regulations, according to which all assignments must be made in the interests of the service.
77 The Commission maintains that paragraphs 250, 251 and 254 of the judgment under appeal are also marred by a failure to state reasons, since the Civil Service Tribunal omitted to examine, in accordance with the case-law, whether the Commission had manifestly and gravely disregarded, in the present case, the limits on its discretion (Bergaderm and Goupil v Commission, paragraph 27 above, paragraphs 43 and 44).
78 In any event, the Commission considers that, in the light of the acts complained of in the request for assistance, of Q’s absences for medical or other reasons during the greater part of 2004, of the chronic and unspecific nature of the problems to be treated, of Q’s previous refusals of certain proposed reassignments and of the discussions held with Q with a view to finding her an appropriate post in one of the DGs she had chosen, the decision not to reassign Q obligatorily but to involve her in the search for a constructive solution, was appropriate both with a view to furthering the reconstruction of her career and in the interests of the service. Since her probation, Q has already been ‘distanced’ several times at her own request and the administration acted, in this case, with speed, offering to reassign her to one of the DGs of her choice.
79 Secondly, the Commission maintains, in essence, that the Civil Service Tribunal also infringed the condition governing the incurring by the Community of non-contractual liability connected with the existence of unlawful conduct in that it held, in paragraph 251 of the judgment under appeal, that the administration had behaved improperly by delaying in opening the administrative inquiry relating to the acts alleged in the request for assistance. The Civil Service Tribunal did not take into account the direct link between the treatment to be given to requests for annulment and that to be given to claims for compensation. Since, in paragraph 200 of the judgment under appeal, the Civil Service Tribunal had rejected as inadmissible the claim for the annulment of the implied decision rejecting the request for assistance, in so far as it refused to open an administrative inquiry, it should also have rejected as inadmissible the claim for compensation which was closely linked to that request for annulment. Moreover, the case-law allows a certain delay in opening an administrative inquiry, if that delay is justified in the light of the circumstances of the case (Campogrande v Commission, paragraph 76 above, paragraph 54). In the present case, the delay, of about four months, in opening the administrative procedure, was justified by the fact that that inquiry was to be entrusted to an independent hearing officer from the Investigation and Disciplinary Office (‘the IDOC’), a body under the authority of the Director General of the DG ‘Personnel and Administration’.
80 Q contends, first, that the Court should reject the plea alleging infringement of the condition governing the incurring by the Community of non-contractual liability connected with the existence of unlawful conduct, Articles 7 and 24 of the Staff Regulations and the obligation to state the reasons for judgments. The case-law in Bergaderm and Goupil v Commission (paragraph 27 above) does not apply in Civil Service procedures. By the Memorandum on psychological harassment, the Commission undertook to ‘[prohibit] reprisals against any member of staff who complains of psychological harassment’ and, for that purpose and ‘depend[ing] on the needs of each particular situation’, to take provisional distancing measures ‘in order to separate the parties involved’ and ‘to give the alleged victim a breathing-space in which to re-establish themselves’. In the present case, the Commission should have taken account not only of the long-standing and repetitive nature of the acts alleged in the request for assistance, but also of the opinions of several doctors and experts, who all recommended that she should be moved from the DG for Personnel and Administration. Moreover, the provisional distancing of the alleged victim of psychological harassment may be regarded as an assignment decided in the interest of the service, within the meaning of Article 7 of the Staff Regulations. Commission Decision C(2006) 1264/3 of 26 April 2006 on the European Commission policy on protecting the dignity of the person and preventing psychological harassment and sexual harassment, which repealed and replaced the Memorandum on psychological harassment, confirmed that ‘[a distancing measure] t[ook] the form of a reassignment in the interests of the service’. In the light of the criteria laid down in the judgment in Campogrande v Commission, paragraph 76 above, the Civil Service Tribunal did not mar the judgment under appeal with an error of law by holding that the Commission had committed an administrative fault by not having acted with the necessary vigour and by not having replied to the request for assistance with the speed and solicitude required by the circumstances of the case.
81 Secondly, Q contends that the Court should reject the plea alleging errors of law in the Civil Service Tribunal’s assessment, according to which the Commission may be criticised for having delayed in opening the administrative inquiry relating to the acts alleged in the request for assistance. Paragraph 54 of the judgment in Campogrande v Commission, paragraph 76 above, does not authorise the Commission to consider that a certain delay in opening an administrative inquiry may be justified. That judgment stresses, rather, the requirements of solicitude, speed and diligence connected with the obligation to provide assistance under Article 24 of the Staff Regulations.
Findings of the Court
82 It is necessary, first, to examine the Commission’s pleas alleging infringement of the condition governing the incurring by the Community of non-contractual liability connected with the existence of unlawful conduct and of Articles 7 and 24 of the Staff Regulations, inasmuch as the Civil Service Tribunal held that the Community was rendered non-contractually liable since, owing to the effect of the implied decision rejecting the request for assistance, the appointing authority had refused to adopt a distancing measure, although, as pointed out in paragraph 209 of the judgment under appeal, ‘the importance and seriousness of the facts alleged by [Q] in her request for assistance revealed ... a “suspicion of psychological harassment” within the meaning of the Memorandum ... on psychological harassment’.
83 First of all, it is important to point out that Article 24 of the Staff Regulations, which imposes on the Communities a duty to assist their officials, appears in Title II concerning the ‘rights and obligations of officials’. Accordingly, in each situation in which the required factual conditions are met, that duty to provide assistance is the counterpart of a right of the official concerned under the Staff Regulations (Caronna v Commission, paragraph 68 above, paragraph 58).
84 According to settled case-law, by reason of the duty to provide assistance under the first paragraph of Article 24 of the Staff Regulations, the administration must, when faced with an incident which is incompatible with the good order and tranquillity of the service, intervene with all the necessary vigour and respond with the rapidity and solicitude required by the circumstances of the case with a view to ascertaining the facts and, consequently, taking the appropriate action in full knowledge of the facts. To that end, it is sufficient that the official who is seeking the protection of his institution provide at least some evidence of the reality of attacks of which he claims he was the victim. When such evidence is provided, the institution concerned is under an obligation to take the necessary measures, in particular to undertake an inquiry, with the cooperation of the complainant, to determine the facts which gave rise to the complaint (see, to that effect, Case 224/87 Koutchoumoff v Commission [1989] ECR 99, paragraphs 15 and 16, and L v Commission, paragraph 66 above, paragraph 84 and the case-law cited), failing which it cannot adopt a definitive position, inter alia as to whether no action should be taken on the complaint or whether a disciplinary procedure should be opened and, if appropriate, whether disciplinary sanctions should be imposed (see, to that effect, Case 53/72 Guillot v Commission [1974] ECR 791, paragraphs 3, 12 and 21, and Case 55/88 Katsoufros v Court of Justice [1989] ECR 3579, paragraph 16).
85 Furthermore, where the administration receives a request for assistance from an official, pursuant to the first paragraph of Article 24 of the Staff Regulations, it is also required, under the duty of protection imposed on it by that article (V v Commission, paragraph 66 above, paragraph 16), to take the appropriate preventive measures, such as the reassignment or provisional transfer of the victim, in order to protect him against a repetition of the alleged conduct during the period required for the administrative inquiry (see, to that effect, Campogrande v Commission, paragraph 76 above, paragraph 55).
86 The administration has a wide discretion, subject to review by the European Union Court, in the choice of the measures, both provisional and definitive, which must be taken pursuant to Article 24 of the Staff Regulations. The review by the European Union Court is limited to the question of whether the institution concerned has acted within reasonable limits and has not exercised its discretion in a manner which is manifestly incorrect (see, the that effect, Case T‑154/05 Giudice v Commission [2007] ECR-SC I-A-2-203 and II-A-2-1309, paragraph 137 and the case-law cited).
87 However, it is also important to point out that the Memorandum on psychological harassment had already been adopted at the time the implied decision rejecting the request for assistance, submitted on 3 May 2004, was taken, and that, both in its wording and form and in its content, that Memorandum had the character of an internal directive, by which the Commission was bound since it had not clearly stated its intention to depart from it, by a reasoned and substantiated decision (see, to that effect and by analogy, Case 148/73 Louwage v Commission [1974] ECR 81, paragraph 12, and Joined Cases T‑246/04 and T‑71/05 Wunenburger v Commission [2007] ECR-SC I-A-2-21 and II-A-2-131, paragraph 127).
88 According to point 4.1.1 of the Memorandum on psychological harassment, which concerns the ‘[a]ction required where harassment is established’, the harassment-prevention policy was to be a new tool to protect the persons employed within the institution and to ensure that the alleged victims and any witnesses were protected by the institution. It was with this intention of affording protection that point 4.1.1(i) of the Memorandum on psychological harassment provided, by way of ‘[e]mergency measures’, that ‘[a]t the least suspicion of psychological harassment, it [might] be possible to move staff from their post’, that ‘[t]his would be purely in order to separate the parties involved and have nothing to do with the staff mobility policy’, that ‘[s]uch an approach [could] be proposed to the appointing authority, in writing, by confidential counsellors or the Mediator’ and that, ‘[s]ince such removals would be temporary, they [would] not depend on the availability of free posts’. That provision also stated that ‘[r]ecourse to such measures, which [would] depend on the needs of each particular situation, [could] be immediate and, if necessary, for a pre-defined period’ and that ‘[t]he idea was to give the alleged victim a breathing-space in which to re-establish themselves’.
89 It is apparent from those provisions that the Memorandum of psychological harassment, which was subsequently repealed and replaced by Decision C(2006) 1264/3, was based on the idea that that administration should not wait for the conflict situation to become perpetual but, on the contrary, should act with all the necessary vigour and respond with the speed and solicitude required by the circumstances of the case by adopting any necessary distancing measure as a prevention. The Commission is not justified, in that regard, in relying on the use of the verb ‘to be able’ in the Memorandum on psychological harassment for the purpose of claiming that it was, in any event, free to assess whether a provisional distancing measure was required in the light of the facts of the case. In the context of that Memorandum, the verb ‘to be able’ was to be understood as meaning that the administration had the power to adopt a distancing measure as a prevention, for the whole of the period required for the administrative inquiry, which was to enable it to establish the facts and to take a definitive position with regard to them. On the other hand, that was without prejudice to the fact that the need to ensure the effectiveness of the duty of protection, under the first paragraph of Article 24 of the Staff Regulations, meant that the administration might be required, where certain factual conditions were met, to assist an official by adopting, as a prevention, a distancing measure.
90 In the light of the first paragraph of Article 24 of the Staff Regulations and of the Memorandum on psychological harassment, it must therefore be stated that, at the time the implied decision rejecting the request for assistance was taken, the administration was required to assist any official who requested its assistance, pursuant to the first paragraph of Article 24 of the Staff Regulations, by adopting a distancing measure as a prevention, where it was faced with information which led it or should reasonably have led it to suspect that that official had been subject to acts falling within the scope of the first paragraph of Article 24 of the Staff Regulations, such as psychological harassment, within the meaning of Article 12a(3) of the Staff Regulations (see, to that effect, Lo Giudice v Commission, paragraph 86 above, paragraph 153), and where it was established that that measure was necessary in order to protect the health and safety of the person concerned, particularly in view of the risk of repetition of the suspected acts (see, to that effect, Campogrande v Commission, paragraph 76 above, paragraph 55; see, to that effect and by analogy, Case T‑48/01 Vainker v Parliament [2004] ECR-SC I‑A‑51 and II‑197, paragraphs 92 and 93).
91 In the present case, although, for the reasons already set out in paragraphs 40 to 45 above, the Commission erred in maintaining that the Civil Service Tribunal should have examined whether the Commission had manifestly and seriously abused the limits of its discretion, the fact remains that, by its grounds of appeal, it claims, in essence, that the Civil Service Tribunal erred in law and infringed the obligation to state the reasons for decisions by annulling the implied decision rejecting the request for assistance, in that it refused to take a provisional distancing measure, without taking into account its discretion to adopt such a measure.
92 It should be noted at the outset that provisional distancing measures adopted on the basis of the first paragraph of Article 24 of the Staff Regulations are designed to protect, as a prevention, the health and safety of the official who is alleged to be a victim of one of the acts referred to in that provision. In accordance with the objective of protection, such measures cannot depend on the existence of a free post within the services, as the Memorandum on psychological harassment rightly states. Accordingly, those measures of assistance must not be confused with decisions to reassign in the interests of the service, taken on the basis of Article 7(1) of the Staff Regulations. These latter decisions concern the proper functioning of the service, even if they are justified by internal relationship difficulties, and consequently fall within the broad discretion accorded by the case-law of the Court of Justice to the institutions to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, provided such assignment conforms with the principle of assignment to an equivalent post (see Case C‑294/95 Ojha v Commission [1996] ECR I‑5863, paragraphs 40 and 41 and the case-law cited).
93 It therefore remains to be examined, in accordance with the case-law cited in paragraph 86 above, whether the Civil Service Tribunal established that the Commission kept within reasonable limits and did not use its power in a manifestly erroneous manner by refraining from adopting a provisional distancing measure, since the factual conditions which require the Commission to adopt such a measure, as set out in paragraph 90 above, were satisfied.
94 After having summarised, in paragraph 208 of the judgment under appeal, the facts alleged in the request for assistance and having stated that ‘among the many documents which the applicant [had] attached to her request for assistance, there was a list of persons able, according to applicant, to confirm the existence of the psychological harassment alleged’, the Civil Service Tribunal held, in paragraph 209 of the judgment under appeal, that ‘the importance and seriousness of [those] facts ... revealed, if not the existence of psychological harassment, at least a “suspicion of psychological harassment” within the meaning of the Memorandum ... on psychological harassment and required the Commission to take, even before carrying out an inquiry and ascertaining the reality of her complaints, measures to “move [her] from [her] post”’. It then held, in paragraph 214 of the judgment under appeal, that the implied decision by which the Commission had declined to adopt a distancing measure was unlawful and should be annulled. That echoes the findings, in paragraph 196 of the judgment under appeal, from which it is apparent that ‘even before definitively adopting a position on [the] request [for assistance], the Commission was required to adopt certain measures, at the very least as a precaution’. In paragraphs 250 and 253 of the judgment under appeal, the Civil Service Tribunal held that the Community incurred non-contractual liability on account in particular of ‘the refusal by the Commission to take provisional measures, and [of] the delay in opening the administrative inquiry’, conduct which had caused ‘non-material damage’ consisting in ‘a state of uncertainty and anxiety [suffered by Q], since she may have feared that the Commission would not consider her request for assistance and that the wrongful conduct to which she had until then been subjected on the part of the institution might continue’. In paragraph 254 of the judgment under appeal, the Civil Service Tribunal included that non-material damage in the non-material damage for which it considered fair compensation was made ‘by directing the Commission to pay to [Q] the sum of EUR 15 000’.
95 It is apparent from paragraph 250 of the judgment under appeal that the only reason put forward by the Civil Service Tribunal for concluding that the Commission was required, in this case, to take a provisional distancing measure was the existence of a ‘suspicion of psychological harassment’ within the meaning of the Memorandum on psychological harassment.
96 Nevertheless, it is not apparent from paragraphs 207 to 214 and 250 of the judgment under appeal, that the Civil Service Tribunal examined, as it was legally bound to do under the rule set out in paragraph 98 above, whether a provisional distancing measure was necessary in order to protect Q’s health and safety throughout the administrative inquiry.
97 Accordingly, the Civil Service Tribunal erred in law by holding, in paragraphs 209 and 211 of the judgment under appeal, that the Commission was required to take a provisional distancing measure without examining whether, in the circumstances of the case, that measure was necessary in order to protect Q’s health and safety throughout the administrative inquiry.
98 However, according to the case-law of the Court of Justice, an error of law made by the court at first instance does not invalidate its judgment if the operative part thereof appears founded on other legal grounds (see Case C‑312/00 P Commission v Camar and Tico [2002] ECR 11355, paragraph 57, and Case C‑93/02 P Biret International v Council [2003] ECR I‑10497, paragraph 60 and the case-law cited). In such a substitution of grounds, the appeal court may take into consideration the facts, as established by the court at first instance (Biret International v Council, paragraphs 60 to 66).
99 In that regard, it is apparent, first of all, from paragraph 41 of the judgment under appeal, that, following a medical examination carried out by the institution’s medical officer, the medical officer, in an opinion of 7 May 2004, considered that Q was ‘100% fit to work as from 10 [May] 2004’ but that ‘a change of post was desirable for the sake of [Q]’s health’. Secondly, it is apparent from paragraph 54 of the judgment under appeal that, ‘[on] 18 May 2004, the psychiatrist to whom the Medical Service had entrusted the task of drawing up a psychiatric report on [Q] pointed out, in his report, that “[s]ince the problem is of a social nature (a dispute within her [i]nstitution), the solution … must therefore be adopted at the social level (reintegration in another [d]irectorate-[g]eneral)”’. Furthermore, paragraph 69 of the judgment under appeal states that ‘[o]n 6 September 2004, the medical examination which [Q] had been required to undergo following the production of the medical certificate relating to the period from 28 August to 25 September 2004 concluded that she was “100% fit to work as of today” but nevertheless reiterated the observation, made on 18 May 2004 by the psychiatrist who had examined [Q] at that time, that “a change of post [was] desirable for the sake of [her] health”’. Finally, it is apparent from paragraph 73 of the judgment under appeal that, ‘[i]n the conclusion of his medico-psychological examination report dated 6 October 2004, the independent doctor chosen following the request for an opinion made by [Q] ... found that “she [was] fit to go back to work but in another [directorate-general]” and explained that “putting her back in her previous post [could] only revive the experiences of psychological harassment and destabilise her”’. It is therefore apparent from the facts, as established in the judgment under appeal, that numerous medical opinions and certificates concluded that a distancing measure was necessary in order to protect Q’s state of health, even before the administration carried out the administrative inquiry enabling it to ascertain the reality of the psychological harassment suffered by Q and, consequently, before definitive measures might be taken to penalise the perpetrators of that harassment and, in the alternative, to compensate for the harmful consequences of their acts.
100 In the light of the opinions and certificates submitted by persons who have the power to circumscribe, by their medical assessments, the Commission’s decision-making power, it must be considered that, at least from 6 October 2004, a provisional distancing measure was required in order to ensure immediate protection for Q’s state of health. Accordingly, in this case, the factual circumstances leading to the conclusion that, at the time of the adoption of the implied decision rejecting the request for assistance, the administration was required to adopt, as a prevention, a provisional distancing measure, as stated in paragraph 98 above, were satisfied. Therefore, the Commission did not act within reasonable limits and exercised its discretion in a manifestly incorrect manner by refraining from moving Q provisionally from the DG for Personnel and Administration or from Unit D2 of that DG, to which she was assigned, even though it was established that such a measure was necessary to protect her state of health.
101 It follows that, notwithstanding the error of law in the judgment under appeal in that regard, the Civil Service Tribunal was fully entitled to hold, in points 1 and 2 of the operative part of the judgment under appeal, that the implied decision rejecting the request for assistance should be annulled, inasmuch as it refused to take a provisional distancing measure, and that the Commission should compensate Q for the harmful consequences of that refusal.
102 To that extent, it is necessary to reject as irrelevant the complaints, raised in the second plea, alleging infringement of the condition governing the incurring by the Community of non-contractual liability connected with the existence of unlawful conduct, and of Articles 7 and 24 of the Staff Regulations.
103 It is necessary, secondly, to examine the complaints, raised in the second plea, alleging that, in paragraph 251 of the judgment under appeal, the Civil Service Tribunal infringed the condition governing the incurring by the Community of non-contractual liability connected with the existence of unlawful conduct, in that it held that the administration had acted unlawfully by delaying in opening the administrative inquiry, without taking account of the fact that the delay in opening that inquiry was justified by the need to ensure its impartiality.
104 In paragraph 251 of the judgment under appeal, the Civil Service Tribunal pointed out that, ‘on the date when the implied decision rejecting the request for assistance took effect, the administrative inquiry had not yet been opened, since it was not until 8 September 2004 that the hearing officer received authority from the Secretary-General of the Commission to conduct such an inquiry and the first hearings held by him did not begin until October 2004’. In paragraph 253 of the judgment under appeal, it held that the non-material damage arising from that delay was to be compensated, which was included in the non-material damage which, according to the Civil Service Tribunal, was fairly compensated ‘by directing the Commission to pay to the applicant the sum of EUR 15 000’.
105 The duty to provide assistance, under the first paragraph of Article 24 of the Staff Regulations, requires the administration to respond with the rapidity required by the circumstances of the case, inter alia by arranging for an administrative inquiry, in order to establish the facts which led to the complaint, in collaboration with the complainant (Campogrande v Commission, paragraph 76 above, paragraphs 42 and 53). However, that case-law does not preclude objective reasons, which may relate inter alia to the inquiry’s organisational requirements, serving to justify a delay in opening that inquiry (see, to that effect, Campogrande v Commission, paragraph 76 above, paragraph 56).
106 In the present case, as is apparent from paragraph 40 of the judgment under appeal, in the request for assistance Q sought the opening of an administrative inquiry by a ‘neutral body’ outside the DG for Personnel and Administration and, therefore, independent of the IDOC. It is also apparent, from paragraph 59 of the judgment under appeal, that, by a letter of 11 June 2004, the director of the IDOC informed the Secretary-General of the Commission that ‘in view of the applicant’s implication of the entire hierarchy of the DG for Personnel and Administration, including its director-general, it seemed appropriate to him that the Secretary-General of the Commission should act as the appointing authority in the administrative inquiry and that someone from outside the DG for Personnel and Administration should be appointed as the “hearing officer” to conduct that inquiry’. Furthermore, paragraph 64 of the judgment under appeal shows that, ‘[o]n 1 July 2004, the Secretary-General of the Commission informed the director of the IDOC that he agreed to act as the appointing authority in the proposed administrative inquiry and gave the name of the hearing officer he had chosen to conduct that inquiry’. Finally, it is apparent from paragraph 71 of the judgment under appeal that, ‘[b]y a note of 8 September 2004, the hearing officer appointed by the Secretary-General of the Commission in connection with the administrative inquiry requested by the applicant received authority from the Secretary-General to “establish the truth of the claims made, as regards in particular the conduct of the official(s) whose names are mentioned in the file, and thus make it possible to determine the truth of the situation and any action which may, where appropriate, have to be taken”’.
107 In the present case, the Civil Service Tribunal nevertheless refrained from examining whether the purpose of organising an administrative inquiry by a ‘neutral body’, in accordance with the wish expressed by Q in the request for assistance, and of entrusting that inquiry not to the IDOC, as is usually prescribed, but to a hearing officer appointed, exceptionally, outside the DG for Personnel and Administration, justified the delay in question.
108 By not carrying out all the checks it was required by law to make, the Civil Service Tribunal did not give the judgment under appeal any legal basis, inasmuch as it orders the Commission to pay Q damages for the delay, of approximately four months, which elapsed before the opening of the administrative inquiry.
109 To that extent, it is necessary to uphold the second plea and to annul point 2 of the operative part, inasmuch as it orders the Commission to pay Q damages for the delay in opening the administrative inquiry. Since, as is apparent from paragraphs 250 to 254 of the judgment under appeal, the Civil Service Tribunal did not distinguish the damages owing to Q under that head from those owing in respect of the Commission’s refusal to take a provisional distancing measure, it is necessary to annul point 2 of the operative part, inasmuch as it orders the Commission to pay Q the sum of EUR 15 000, in so far as that sum is designed to compensate for the non-material damage suffered by Q owing to the alleged delay in opening the administrative inquiry.
110 In the light of all the foregoing conclusions, the main appeal should be upheld in part and dismissed as to the remainder.
The cross-appeal
111 The cross-appeal, brought pursuant to Article 142(2) of the Rules of Procedure, seeks the annulment of the judgment under appeal, in so far as it rejects the claims of the action at first instance seeking the annulment of the 2003 CDRs and compensation for the additional damage resulting from the implied decision rejecting the request for appropriate definitive measures to penalise the perpetrators of the alleged psychological harassment and, in the alternative, to compensate for the harmful consequences of their acts.
112 In support of the cross-appeal, Q raises nine pleas in law. The first eight pleas in the cross-appeal are directed against the judgment under appeal, in so far as it rejects the claims of the action at first instance, seeking compensation for the additional damage resulting from the implied decision rejecting the request for appropriate definitive measures to penalise the perpetrators of the alleged psychological harassment and, in the alternative, to compensate for the harmful consequences of their acts. The first plea alleges infringement of Article 12a(3) of the Staff Regulations. The second plea alleges an error in the legal classification of the facts alleged in the request for assistance, in the light of Article 12a(3) of the Staff Regulations. The third plea alleges a material inaccuracy in the facts, the source of an error of law in the definition of the subject-matter of the proceedings. The fourth plea alleges a distortion of the clear sense of some of the evidence produced at first instance. The fifth plea alleges that the Commission infringed the Memorandum on psychological harassment. The sixth plea alleges infringement of the obligation to state the reasons on which decisions are based. The seventh plea alleges failure to comply with the prohibition on ruling ultra petita and, consequently, abuse of the limits imposed on the jurisdiction of the Civil Service Tribunal. The eighth plea alleges a misinterpretation of two administrative notes. The ninth plea is directed against the judgment under appeal, in that it rejects the claims of the action at first instance seeking the annulment of the 2003 CDRs. It alleges an error of law concerning the existence of a legal interest in bringing proceedings for the annulment of the 2003 CDRs.
113 The Commission points out that, for the purposes of replying to the cross-appeal, it must comment on the interpretation of the concept of psychological harassment within the meaning of Article 12a(3) of the Staff Regulations, as upheld by the Civil Service Tribunal in the judgment under appeal. It maintains that several errors of law mar that interpretation. Q contests the Commission’s observations in that regard.
114 For reasons of the proper administration of justice, it is necessary to examine, firstly, the fifth plea, secondly, the eighth plea, thirdly, the first, second, third, fourth and sixth pleas together, and the observations of the Commission and Q regarding the concept of psychological harassment, within the meaning of Article 12a(3) of the Staff Regulations, fourthly, the seventh plea and, fifthly and lastly, the ninth plea.
The fifth plea in the cross-appeal, alleging that the Commission infringed the Memorandum on psychological harassment
Arguments of the parties
115 Q states that the Commission infringed points 2.2 and 4.1 of the Memorandum on psychological harassment, in that none of her superiors acted to remedy the psychological harassment alleged in her request for assistance.
116 The Commission claims that the Court should reject the fifth plea as manifestly inadmissible. Q does not identify any error of law committed by the Civil Service Tribunal in the judgment under appeal, but merely repeats the arguments she had put forward in support of her action at first instance. In any event, the interpretation of the Memorandum on psychological harassment upheld by the Civil Service Tribunal in the judgment under appeal was favourable to Q’s interests.
117 Q claims that the Court should reject the plea of inadmissibility raised by the Commission against the fifth plea, on the ground that the error of law in the judgment under appeal was adequately identified in the cross-appeal.
Findings of the Court
118 It is apparent from the provisions cited in paragraph 24 above that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see the order in Case T‑233/07 P Lebedef-Caponi v Commission [2008] ECR-SC I-B-1-3 and II-B-1-19, paragraph 25 and the case-law cited).
119 That requirement is not satisfied by an appeal which confines itself to repeating or reproducing the pleas in law and arguments submitted to the court at first instance, including those founded on facts explicitly rejected by that court. Such an appeal amounts in reality to a request for no more than a re-examination of the application submitted to the court at first instance, which the appeal court does not have jurisdiction to undertake (Lebedef-Caponi v Commission, paragraph 118 above, paragraph 26 and the case-law cited).
120 Under the cloak of the fifth plea, Q invokes an error of law committed by the Commission, not by the Civil Service Tribunal, since she states that ‘the Commission infringed point 2.2 of the Memorandum on psychological harassment’ or that ‘[point 4.1 of that Memorandum] was also infringed by the Commission’.
121 Consequently, it is necessary to uphold the plea of inadmissibility raised by the Commission and, accordingly, to reject the fifth plea as inadmissible.
The eighth plea in the cross-appeal, alleging misinterpretation of two administrative notes
Arguments of the parties
122 Q maintains that the Civil Service Tribunal committed an error of law by misinterpreting two administrative notes in the file. First, in paragraph 64 of the judgment under appeal, it misinterpreted the note of the Secretary-General to the Director of the IDOC of 1 July 2004, by stating that, in that note, the former informed the latter that he agreed to act as the appointing authority in the administrative inquiry. In fact, the Secretary-General stated, in that note, that he agreed to act as the appointing authority in respect of the institution’s reply to the request for assistance, the aim of that step being to avoid any criticism of partiality within the DG for Personnel and Administration. Secondly, in paragraph 86 of the judgment under appeal, the Civil Service Tribunal misinterpreted the note of 16 September 2005 which the Director-General of the DG for Personnel and Administration had sent to it, by stating that it contained an express decision of the appointing authority rejecting the request for assistance. That note was not from the Secretary-General of the Commission, who alone acted as appointing authority on its behalf, and no decision of the appointing authority was annexed thereto, so no express decision on the request for assistance was taken by the appointing authority.
123 The Commission contends that the paragraphs in the judgment under appeal which are contested by the eighth plea form part of the statements of facts and do not therefore come under the ‘Law’ section of that judgment. As to the remainder, that plea is inadmissible, since the error of law allegedly committed by the Civil Service Tribunal is not identified.
124 Q claims that the plea of inadmissibility raised by the Commission against the eighth plea should be rejected, on the ground that the error of law invoked was adequately identified in the cross-appeal.
Findings of the Court
125 As has already been pointed out in paragraph 118 above, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal.
126 In the present case, Q has not identified, in her pleadings, an error of law vitiating the operative part of the judgment under appeal, resulting from misinterpretation of the content of the two aforementioned administrative notes, vitiating paragraphs 64 and 86 of the judgment under appeal relating to the summary of the ‘facts’, in accordance with Article 81, tenth indent, of the Rules of Procedure.
127 It is therefore necessary to uphold the plea of inadmissibility raised by the Commission and, accordingly, to reject the eighth plea as inadmissible.
The first plea, alleging infringement of Article 12a(3) of the Staff Regulations, the second plea, alleging an error in the legal classification of the facts alleged in the request for assistance in the light of Article 12a(3) of the Staff Regulations, the third plea, alleging a material inaccuracy in the facts, the source of an error of law in the definition of the subject-matter of the dispute, the fourth plea, alleging distortion of the clear sense of some of the evidence presented at first instance, and the sixth plea, alleging infringement of the duty to state reasons
128 The first, second, third, fourth and sixth pleas, and also the observations of the Commission and Q relating to the concept of psychological harassment within the meaning of Article 12a(3) of the Staff Regulations, are directed against the grounds of the judgment under appeal, in particular paragraphs 189 and 236, by which the Civil Service Tribunal ruled, as stated in paragraph 147 of the judgment under appeal, on the ‘complaint of psychological harassment raised by [Q]’ and held, in paragraph 189 of the judgment, that Q ‘[was] not justified in maintaining that she was the victim of psychological harassment’, or, therefore, in obtaining compensation in that respect. That was without prejudice to the fact that, in paragraphs 236 and 238 to 242 of the judgment under appeal, the Civil Service Tribunal held that some of the facts relied on by Q in support of her request for assistance were, considered as a whole, such as to reveal an administrative fault of the Commission, consisting in a failure to comply with its duty to have regard for the welfare of officials and awarded Q compensation for the non-material damage which resulted from that fault, in that it had contributed to isolate Q within her unit, but not for the material damage corresponding to the occupational disease which was due to that same fault, since such compensation would have been premature, as the procedure for the recognition of the occupational nature of the pathologies from which the person concerned suffered was still ongoing and it was impossible to ascertain whether all the material damage suffered by Q could not be compensated under the staff insurance scheme against the risk of occupational disease.
129 In that regard, it should be pointed out that, under Article 113 of the Rules of Procedure, the Court may at any time of its own motion consider whether there exists any absolute bar to proceeding with a case.
130 Since the conditions for admissibility of an action under Articles 90 and 91 of the Staff Regulations are a matter of public policy, it is for the Union judicature, where appropriate, to consider them of its own motion (see Case T‑498/07 P Krcova v Court of Justice [2009], paragraph 52 and the case-law cited), without first having invited the parties to submit their observations (see, to that effect, M v EMEA, paragraph 57 above, paragraph 57 and the case-law cited).
131 The existence of an act adversely affecting the official concerned within the meaning of Articles 90(2) and 91(1) of the Staff Regulations is an essential condition for the admissibility of any action brought by officials against the institution by which they are employed (see the judgment in Case T‑20/92 Moat v Commission [1993] ECR II‑799, paragraph 39 and the case-law cited, and the order in Case T‑243/02 J v Commission [2003] ECR-SC I‑A‑99 and II‑523, paragraph 30).
132 For the purposes of ruling on the existence of the psychological harassment alleged in the request for assistance, the Civil Service Tribunal implicitly but necessarily presupposed, in paragraphs 118 and 119 of the judgment under appeal, that it had been seised of an act adversely affecting an official corresponding to a decision of the appointing authority rejecting, albeit implicitly, the request for assistance, in that it declined to establish the existence of the alleged psychological harassment.
133 The supposition on which the Civil Service Tribunal necessarily relied in order to rule on the existence of the alleged psychological harassment is incorrect, as is apparent from its own findings in the rest of the judgment under appeal.
134 Indeed, the Civil Service Tribunal found, first of all, in paragraph 117 of the judgment under appeal, that the action at first instance must be regarded as seeking the ‘annulment of the implied decision rejecting the request for assistance’, the ‘annulment of the 2003 CDRs’ and an ‘order against the Commission to pay damages to the applicant’.
135 It is apparent inter alia from paragraph 196 of the judgment under appeal, that, in the judgment, the Civil Service Tribunal only regarded the implied decision rejecting the request for assistance as an act adversely affecting Q in that it declined ‘to adopt certain measures, at the very least as a precaution [for the period needed for the administrative inquiry]’. By so doing, it did not characterise the existence of the act adversely affecting Q consisting in refusal to determine the existence of the psychological harassment alleged in the request for assistance, the existence of which it had, implicitly but necessarily, presupposed, in paragraphs 118 and 119 of the judgment under appeal, in order to rule on the ‘complaint of psychological harassment raised by [Q]’.
136 In any event, it must be taken into account, in the present case, that Q herself requested, in the request for assistance, that an administrative inquiry be opened in order to establish the truth of the psychological harassment alleged in her request for assistance, and asked the Commission to entrust that inquiry to a ‘neutral body’, other than the IDOC, which is the body usually authorised to conduct such an inquiry. It is apparent from paragraphs 198, 199 and 251 of the judgment under appeal that, prior to the bringing of the action, on 4 July 2005, the administration acceded to that request, because an administrative inquiry was opened, on 8 September 2004, which was conducted between October 2004 and 21 March 2005, in accordance with the rules governing administrative inquiries laid down in Annex IX to the Staff Regulations, which were themselves adopted in accordance with Article 86(3) of the Staff Regulations.
137 Since it is an inquiry procedure conducted under Article 86(3) of the Staff Regulations, for the purposes of being able to rule on the request for assistance of an official, pursuant to Article 24 of the Staff Regulations, it concludes with the final decision of the appointing authority, taken on the basis of the inquiry report, as the Civil Service Tribunal itself pointed out, in paragraph 196 of the judgment under appeal, and as is also apparent from Article 3 of Annex IX to the Staff Regulations (see, to that effect, Guillot v Commission, paragraph 84 above, paragraphs 21, 22 and 36, and Joined Cases 36/81, 37/81 and 218/81 Seton v Commission [1983] ECR 1789, paragraphs 29 to 31). It is at the moment that decision is taken that the official’s legal position is affected (see also, to that effect and by analogy, with regard to a procedure conducted pursuant to Article 73 of the Staff Regulations, L v Commission, paragraph 66 above, paragraph 123).
138 Since it refers to the conclusions of the administrative inquiry report, which was completed after the implied decision was taken and in which the allegations of the official concerned concerning the existence of psychological harassment were examined in detail, on the basis of the documents and evidence produced or collected during the inquiry, the appointing authority’s final decision must be regarded not as a decision merely confirming the implied decision, but as a decision replacing it , at the end of a review of the situation by the administration (see, to that effect, Lo Giudice v Commission, paragraph 86 above, paragraphs 47 and 48).
139 In the present case, it is clear that, ‘[b]y letter of 16 September 2005 addressed to [Q], the appointing authority expressly rejected the request for assistance made by her, taking the view, on the basis of the conclusions of the administrative inquiry, that the claims of psychological harassment were not well founded or had not been susceptible of proof’. In accordance with the case-law cited in paragraph 138 above, the express decision of the appointing authority definitively rejecting the request for assistance, the content of which was notified to Q by letter of 16 September 2005, replaced, during the proceedings at first instance, the implied decision rejecting the request for assistance, at the end of a review of the situation by the appointing authority on the basis of the conclusions of the administrative inquiry, in accordance with Article 3 of Annex IX to the Staff Regulations.
140 It is not apparent from paragraphs 117, 196 and 197 of the judgment under appeal that the Civil Service Tribunal was seised, at first instance, of the express decision of the appointing authority definitively rejecting the request for assistance. Nor is it apparent from the judgment under appeal that, in the judgment, the Civil Service Tribunal reviewed the legality of the latter decision or even merely the grounds which provided the basis it required.
141 Questioned on this point at the hearing, Q confirmed that the purpose of the action which she had brought before the Tribunal was inter alia to review the legality of the implied decision rejecting the request for assistance and not the express decision of the appointing authority rejecting the request for assistance, the content of which had been notified to her by letter of 16 September 2005. She did not state that, during the course of the proceedings at first instance, she had requested permission to adapt her pleadings and pleas following the replacement of the first decision by the second (see, to that effect, Case T‑55/03 Brendel v Commission [2004] ECR-SC I‑A‑311 and II‑1437, paragraph 50 and the case-law cited, and the order in Case T‑161/00 Tsarnavas v Commission [2001] ECR-SC I‑A‑155 and II‑721, paragraph 27 and the case-law cited). The Commission, for its part, maintained that only the express decision of the appointing authority rejecting the request for assistance constituted the act adversely affecting Q, in that it refused to establish the psychological harassment alleged in the request for assistance on the basis of the findings of the administrative inquiry. It also points out that, in the judgment under appeal, the Civil Service Tribunal had taken a decision which was independent of the decision of the appointing authority as regards the existence of the alleged psychological harassment.
142 It follows from the above that, since it was not seised of a case whose subject-matter was the assessment of the legality of the express decision of the appointing authority rejecting the request for assistance, the content of which was notified to Q by letter of 16 September 2005, the Civil Service Tribunal infringed Articles 90 and 91 of the Staff Regulations and exceeded the limits of the judicial review, by, in practice, assuming the role of the administration, in that it ruled, in paragraphs 147 and 189 of the judgment under appeal, on the ‘complaint of psychological harassment raised by [Q]’ (see, to that effect, Case C‑277/01 P Parliament v Samper [2003] ECR I‑3019, paragraphs 44 and 50) and in that it held, in paragraph 189 of that judgment, that Q was not justified in maintaining that she was the victim of psychological harassment, within the meaning of Article 12a(3) of the Staff Regulations (see, to that effect, Case T‑73/05 Magone v Commission [2006] ECR-SC I‑A‑2-107 and II‑A‑2‑485, paragraphs 14 to 16, and Lo Giudice v Commission, paragraph 86 above, paragraphs 54 to 56).
143 Therefore, without its even being necessary to rule on the first, second, third, fourth and sixth pleas, it is appropriate to set aside the judgment under appeal, in so far as it rules on the ‘complaint of psychological harassment raised by [Q]’ and in so far as it holds that she was not justified in maintaining that she was the victim of psychological harassment, within the meaning of Article 12a(3) of the Staff Regulations.
The seventh plea, alleging that the Civil Service Tribunal failed to comply with the prohibition on ruling ultra petita and, consequently, abused the limits imposed on it
Arguments of the parties
144 Q complains that the Civil Service Tribunal ruled ultra petita and, therefore, abused the limits imposed on its own competence by rejecting, in paragraph 241 of the judgment under appeal, her claim for compensation for the material damage corresponding to the loss of remuneration owing to her automatic retirement on grounds of invalidity, resulting from the psychological harassment alleged in the request for assistance. The Civil Service Tribunal based that rejection on the memorandum by which, on 17 October 2005, she had submitted a request for the recognition, as an occupational disease, under Article 73 of the Staff Regulations, of the ‘anxio-depressive’ syndrome from which she claimed to be suffering, although that memorandum had clearly not been presented for the consideration of the Civil Service Tribunal by the parties to the proceedings and had not been the subject-matter of an exchange of arguments.
145 The Commission claims that the Court should reject the seventh plea as manifestly unfounded.
Findings of the Court
146 In this case, Q does not maintain that the Civil Service Tribunal distorted the evidence in the case-file at first instance, in paragraph 241 of the judgment under appeal.
147 She maintains only that, even though it is apparent from the evidence in the case-file at first instance that she had requested that a procedure be initiated to recognise the occupational origin of her illness, the Civil Service Tribunal could not take that fact into account for the purpose of rejecting her compensation claim as inadmissible, in so far as it sought compensation for material damage corresponding to the loss of remuneration owing to her automatic retirement on grounds of invalidity, since that fact and the consequences of it for the admissibility of the compensation claim were not specifically invoked by the parties and discussed before the Tribunal.
148 It is apparent from paragraphs 232 and 233 of the judgment under appeal that the question of the premature and, as such, inadmissible nature of the disputed compensation claim was not raised by the Commission or discussed between the parties at first instance.
149 It should be pointed out, however, that, according to the case-law cited in paragraph 130 above, since the conditions for admissibility of an action under Articles 90 and 91 of the Staff Regulations are a matter of public policy, it is for the Union judicature, where appropriate, to consider them of its own motion.
150 Moreover, it cannot be criticised for making findings of fact when examining, of its own motion, the conditions for admissibility of a compensation claim submitted to it in such an action, since they emerge from the documents in the case-file presented to it by the parties, for the purposes of ruling on their claim.
151 Therefore, Q is not justified in complaining that the Civil Service Tribunal ruled ultra petita and abused the limits of its competence, by establishing, of its own motion, in paragraph 241 of the judgment under appeal, the inadmissibility of the disputed compensation claim after making certain findings of fact on the basis of evidence in the case-file.
152 For those reasons, the seventh plea must be rejected as unfounded.
The ninth plea, alleging an error of law concerning the existence of a legal interest in bringing proceedings for the annulment of the 2003 CDRs
Arguments of the parties
153 Q considers that the rejection by the Civil Service Tribunal, in paragraph 227 of the judgment under appeal, of her claims for the annulment of the 2003 CDRs is vitiated by an error of law, in that it disregards recent case-law of the Court of Justice, according to which an official in a state of total permanent invalidity nevertheless retains an interest in challenging his career development reports. It is therefore necessary to distinguish, as does the Court of Justice, the situation of an official who is automatically retired pursuant to Articles 53 and 78 of the Staff Regulations from the situation of an official who has reached the age of retirement, or who has resigned or been dismissed. Moreover, Article 53 of the Staff Regulations must be read in conjunction with Articles 13 and 15 of Annex VIII to the Staff Regulations, which state that the employment of an official recognised as suffering from invalidity is only suspended and his invalidity may be examined periodically until he reaches the age of 63 years. Q also considers that she has a certain and present interest in obtaining the annulment of the 2003 CDRs on the account of the negative assessments with respect to her that they contain.
154 In her further pleadings, Q relies on a document which she claims she did not know existed when she brought her counter-appeal, namely a document, signed on 26 July 2005 by the Commission’s medical officer, Dr D, as a member of the Invalidity Committee, in which he stated that he did not agree with the declaration of her invalidity and with the decision taken, by a majority, by the other members of the Committee, Drs R and S. Owing to the dissenting opinion of the medical officer, the findings of the Invalidity Committee and the decision declaring her invalidity were obviously seriously flawed, which gave her the right to request a declaration that those acts were non-existent. The dissident opinion shows that it is possible to be restored to good health and that, therefore, reinstatement in the Commission is not ruled out. She could also seek reinstatement if she considered that she no longer satisfied the conditions for receiving an invalidity allowance. Consequently, the Civil Service Tribunal committed an error of law by inferring that she no longer had an interest in bringing proceedings against the 2003 CDRs and that it was therefore unnecessary to rule on her claim for their annulment.
155 The Commission contends that the ninth plea should be rejected as unfounded.
Findings of the Court
156 It is settled case-law that, for a person falling within the scope of the Staff Regulations to be able, within the framework of an action brought under Articles 90 and 91 of those regulations, to seek the annulment of an act which adversely affects him, he must have, at the time he brings the action, a vested and present interest, which is sufficiently established to have that act annulled, such an interest assuming that the claim is likely, if successful, to benefit him (see, to that effect, Joined Cases T‑35/05, T‑61/05, T‑107/05, T‑108/05 and T‑139/05 Agne-Dapper and Others v Commission and Others [2006] ECR-SC I‑A‑2-291 and II‑A‑2‑1497, paragraph 35 and the case-law cited). As a condition for admissibility, the applicant’s interest in bringing proceedings must be assessed at the time the action is brought (see, to that effect, Case T‑147/04 Ross v Commission [2005] ECR-SC I‑A‑171 and II‑771, paragraph 25 and the case-law cited). However, as is apparent from established case-law, for an official to be able to bring an action for annulment against a decision of the appointing authority, he must retain a personal interest in the annulment of the contested decision (see Case T‑159/98 Torre and Others v Commission [2001] ECR-SC I‑A‑83 and II‑395, paragraph 30 and the case-law cited). In that regard, in the absence of a present interest in bringing proceedings, there is no further need to adjudicate on the action (Torre and Others v Commission, paragraph 31 and the case-law cited).
157 As regards the interest of an official or former official in bringing proceedings for the annulment of career development reports concerning him, first, it should be pointed out that that report is a value judgment by his immediate superiors on the manner in which the official being appraised has performed the duties conferred on him and on his conduct in the service during the relevant period, and that, irrespective of its future usefulness, it constitutes written, formal evidence of the quality of the work carried out by the official. Such an appraisal does not merely describe the tasks performed during the relevant period, but also includes an assessment of the personal qualities shown by the individual assessed in the conduct of his professional life. Therefore, every official has a right to have his work recognised by means of an appraisal carried out in a just and equitable manner. Consequently, in accordance with the right to effective judicial protection, officials must in any event be acknowledged as having the right to challenge their career development report on account of its content or because it has not been drawn up in accordance with the rules laid down by the Staff Regulations (Case C‑198/07 P Gordon v Commission [2008] ECR I‑10701, paragraphs 43 to 45).
158 In the second place, while it is true that an official who is recognised by the Invalidity Committee as being in a state of total permanent incapacity is automatically retired pursuant to Articles 53 and 78 of the Staff Regulations, the situation of that official is distinct from that of an official who has reached the age of retirement, or who has resigned or been dismissed, because it is reversible (Gordon v Commission, paragraph 157 above, paragraph 46). An official in a state of total permanent invalidity may one day resume his duties within a Union institution. In that regard, the general provision of Article 53 of the Staff Regulations must be read in conjunction with the specific provisions of Articles 13 to 15 of Annex VIII to the Staff Regulations. The employment of an official who is declared to be in a state of invalidity is merely suspended, since the evolution of his position within the institutions is subject to the continued existence of the conditions which justified that invalidity, which can be reviewed at regular intervals (Gordon v Commission, paragraph 157 above, paragraph 47). Moreover, given that an official who is recognised as being in a state of permanent invalidity, which is considered to be total, may be reinstated in a post within an institution, that official has an interest, within the meaning of the case-law referred to in paragraph 156 above, to have his career development report drawn up fairly, objectively and in accordance with normal reporting standards. In the event of reinstatement, the report would be useful for the official’s development within his service or the Union institutions (Gordon v Commission, paragraph 157 above, paragraphs 46 to 51).
159 It can be otherwise only in certain specific cases, in which the examination of the specific situation of the official declared to be in a state of invalidity reveals that he is no longer likely one day to resume his duties within an institution, in the light, for example, of the findings of the Invalidity Committee entrusted with considering his situation, from which it is apparent that the pathology which has led to the invalidity is permanent and that no additional medical examination will therefore be necessary (see, to that effect, Ross v Commission, paragraph 156 above, paragraphs 9 and 32) or in the light of statements made by the official concerned showing that, in any event, he will not resume his duties within an institution (see, to that effect, Combescot v Commission, paragraph 42 above, paragraphs 27 and 29).
160 In this case, the Civil Service Tribunal held, in paragraph 117 of the judgment under appeal, a point not challenged by Q in her cross-appeal, that the action brought by Q pursuant to Articles 90 and 91 of the Staff Regulations sought inter alia annulment of the 2003 CDRs. In paragraphs 218 to 224 of the judgment under appeal, it set out the reasons why it considered that the claims for annulment of the 2003 CDRs were admissible at the date of commencement of the action at first instance. However, it considered, in paragraphs 225 to 230 of the judgment under appeal, that there was no longer any need to rule on those claims, since Q had lost her interest in continuing proceedings for the annulment of the 2003 CDRs. In order to deny Q any interest in bringing proceedings in this case, the Civil Service Tribunal pointed out that she ‘[had been] retired and granted an invalidity allowance by decision of the appointing authority of 23 August 2005 with effect from 31 August 2005’, that, ‘[m]oreover, the Invalidity Committee considered, “faced with the permanent nature of the pathology which led to the invalidity, that no additional medical examination [was] necessary”, that, “[a]ccordingly, amendment of the 2003 CDRs could not entail any consequences for [Q’s] career” and that, “[m]oreover, [Q] [did] not establish or even rely on the existence of a special circumstance justifying the retention of a current, personal interest in bringing an action for annulment [of the 2003 CDRs]’”.
161 When assessing Q’s interest in bringing proceedings, the Civil Service Tribunal was justified in taking into account the findings of the Invalidity Committee which show, according to its own statements, that all the conditions for justifying Q’s automatic retirement on grounds of total permanent invalidity, in accordance with Article 13 of Annex VIII to the Staff Regulations, could be regarded as definitively satisfied, since only that Committee was competent, under Articles 53 and 78 of the Staff Regulations, to rule on Q’s invalidity and the findings of that Committee were not unlawful simply because, as was apparent from the document produced by the Commission, they were made only by a majority of the members of the Committee, one of them having expressed a different opinion. Indeed, the decisions of the Invalidity Committee are collegiate in nature, taken by a majority of its members.
162 However, the Civil Service Tribunal omitted to take into account, as it is legally bound to do, the interest which Q may, in any event, have retained in challenging the 2003 CDRs on the basis of their content and, in particular, as was stated in paragraph 273 of the judgment under appeal, because they ‘contain[ed] explicitly negative assessments of [Q’s] abilities’, in accordance with the interpretation of the concept of the interest of an official or former official in bringing proceedings for the annulment of his career development report upheld by the Court of Justice in Gordon v Commission, paragraph 157 above (paragraphs 43 to 45).
163 It is true that the judgment in Gordon v Commission, paragraph 157 above, is subsequent, by a few days, to the judgment under appeal. However, that does not justify the Tribunal reviewing the validity of the judgment under appeal, in the light of the concept of interest in bringing proceedings for the annulment of a career development report, without taking into account the interpretation which the Court of Justice gave to that concept in Gordon v Commission, point 157 supra.
164 The interpretation which the Court of Justice gives to a rule of European Union law clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force. It follows that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships arising and established before the Court’s ruling provided that in other respects the conditions enabling an action relating to the application of that rule to be brought before the courts having jurisdiction, are satisfied (see, to that effect, and by analogy, as regards the effects in time of interpretations given by the Court in the exercise of the jurisdiction conferred upon it by Article 234 EC, Case 61/79 Denkavit italiana [1980] ECR 1205, paragraph 16, and Joined Cases C‑367/93 to C‑377/93 Roders and Others [1995] ECR I‑2229, paragraph 42). In the light of those principles, it is only in exceptional circumstances that a restriction is placed on the effects of the interpretation given by the Court of Justice (Denkavit italiana, paragraph 17, and Roders and Others, paragraph 43).
165 In the present case, it is not apparent from the judgment in Gordon v Commission, paragraph 157 above, that circumstances justifying a derogation from the principle of the retroactivity of the interpretation which the Court of Justice gave, in that judgment, of the concept of interest in bringing proceedings for the annulment of a career development report, are established.
166 Consequently, it is necessary to uphold the ninth plea and, accordingly, to set aside the judgment under appeal, in so far as it rules that there is no need to proceed to judgment on the claim for annulment of the 2003 CDRs.
167 In the light of all the foregoing considerations, it is necessary to allow the cross-appeal in part and to dismiss it as to the remainder.
Referral of the case back to the Civil Service Tribunal
168 Pursuant to Article 13(1) of Annex I to the Statute of the Court of Justice, if the appeal is well founded, the General Court is to quash the decision of the Civil Service Tribunal and itself give judgment in the matter. However, it is to 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.
169 In the present case, since the Civil Service Tribunal has not ruled, as is apparent from paragraph 230 of the judgment under appeal, on the claims for annulment of the 2003 CDRs, the state of these proceedings does not permit a decision in that regard and the case must be referred back to the Civil Service Tribunal in order that it may rule on those claims.
170 Moreover, since the Civil Service Tribunal has not ruled, as is apparent from point 2 of the operative part of the judgment under appeal, read in the light of paragraphs 250 to 254 of that judgment, on the sum payable to Q by the Commission solely in respect of the non-material damage resulting from the Commission’s refusal to take a provisional distancing measure, the state of these proceedings does not permit a decision in that regard and this case must be referred back to the Civil Service Tribunal in order that it may rule on that sum.
Costs
171 Since the case is being referred back to the Civil Service Tribunal, the costs relating to the present appeal proceedings must be reserved.
On those grounds,
THE GENERAL COURT (Appeal Chamber)
hereby:
1. Sets aside the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 9 December 2008 in Case F‑52/05 Q v Commission, in so far as, at paragraph 2 of the operative part of the judgment, it orders the Commission of the European Communities to pay to Q compensation in the sum of EUR 500 together with the sum of EUR 15 000, in so far as that sum is intended to make reparation for the non-material damage suffered by Q as a result of the delay in opening the administrative inquiry, and, for the purpose of dismissing the application at first instance as to the remainder at paragraph 3 of the operative part, rules, at paragraphs 147 to 189 of the grounds of the judgment, on ‘the complaint of psychological harassment raised by [Q]’ and, at paragraph 230 of the grounds, finds that there is no need to rule on the claim for annulment of Q’s career development reports drawn up in respect of the periods from 1 January to 31 October and from 1 November to 31 December 2003, respectively;
2. Dismisses the appeal and cross-appeal as to the remainder;
3. Refers the case back to the Civil Service Tribunal for a ruling on the claim seeking annulment of the career development reports referred to above and on the sum to be paid to Q by the Commission solely in respect of the non-material damage resulting from the Commission’s refusal to take a provisional distancing measure;
4. Reserves the costs.
Jaeger | Pelikánová | Dittrich |
Delivered in open court in Luxembourg on 12 July 2011.
[Signatures]