JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(First Chamber)
9 December 2008
Case F-52/05
Q
v
Commission of the European Communities
(Civil service – Officials – Psychological harassment – Administration’s duty to provide assistance – Rejection of request for assistance – Administration's duty to have regard for the welfare of officials – Appraisal – Appraisal exercise for 2003 – Career development review)
Application: brought under Articles 236 EC and 152 EA, in which Q seeks in essence, first, annulment of the decision by which the Commission implicitly rejected her request for assistance, secondly, annulment of her career development reviews drawn up for the periods from 1 January to 31 October 2003 and from 1 November to 31 December 2003 respectively and, thirdly, an order against the Commission to pay her damages.
Held: The decision of the Commission rejecting the request for assistance submitted on 29 April 2004 by the applicant is annulled in so far as it refused to move her temporarily to another post. The Commission is ordered to pay the applicant the sum of EUR 18 000. The remainder of the application is dismissed. The Commission is to bear its own costs and to pay three quarters of the applicant’s costs. The applicant is to bear one quarter of her own costs.
Summary
1. Officials – Psychological harassment – Definition – Conduct aimed at discrediting the person concerned or at impairing his working conditions
(Staff Regulations, Art. 12a(3); Council Directive 2000/78, 30th recital and Arts 1 and 2(3))
2. Officials – Actions – Act adversely affecting an official – Definition – Implied decision refusing a request for assistance
(Staff Regulations, Arts 24, 90 and 91)
3. Officials – Obligation of administration to provide assistance – Field of application – Scope – Duty of administration to examine complaints of harassment – Requirements of solicitude and rapidity
(Staff Regulations, Art. 24)
4. Officials – Actions – Interest in bringing proceedings – Action for annulment of a periodic report – Official retired during the procedure before the Tribunal
(Staff Regulations, Arts 43, 90 and 91)
5. Officials – Actions for damages – Claims seeking compensation for the harm resulting from the applicant’s illness and invalidity retirement as a consequence of a wrongful act of the administration
(Staff Regulations, Art. 73; Rules on insurance against the risks of accident and of occupational disease, Arts 18 and 22)
6. Officials – Actions – Actions for damages – Annulment of the contested measure not adequate compensation for non-material harm
(Staff Regulations, Art. 91)
1. Article 12a(3) of the Staff Regulations defines psychological harassment as ‘improper conduct’ which requires, in order to be established, that two cumulative conditions be satisfied. The first condition relates to the existence of physical behaviour, spoken or written language, gestures or other acts which take place ‘over a period’ and are ‘repetitive or systematic’ (the assumption being that psychological harassment must be understood as a process which necessarily takes place over time and that there is repeated or continuous reprehensible conduct) and which are ‘intentional’. The second condition, separated from the first by the conjunction ‘and’, requires that such physical behaviour, spoken or written language, gestures or other acts have the effect of undermining the personality, dignity or physical or psychological integrity of any person. By virtue of the fact that the adjective ‘intentional’ applies to the first condition, and not to the second, it is possible to draw a twofold conclusion. Firstly, the physical behaviour, spoken or written language, gestures or other acts referred to by Article 12a(3) of the Staff Regulations must be intentional in character, which excludes from the scope of that provision reprehensible conduct which arises accidentally. Secondly, it is not, on the other hand, a requirement that such physical behaviour, spoken or written language, gestures or other acts were committed with the intention of undermining the personality, dignity or physical or psychological integrity of a person. In other words, there can be psychological harassment within the meaning of Article 12a(3) of the Staff Regulations without the harasser’s having intended, by his reprehensible conduct, to discredit the victim or deliberately impair the latter’s working conditions. It is sufficient that such reprehensible conduct, provided that it was committed intentionally, led objectively to such consequences.
A contrary interpretation of Article 12a(3) of the Staff Regulations would result in depriving the provision of any useful effect, on account of the difficulty of proving the malicious intent of the perpetrator of an act of psychological harassment. While there are cases where such intent can be inferred naturally from the reprehensible conduct of the person responsible for it, the fact is that such cases are rare and that, in the majority of situations, the alleged harasser is careful to avoid any conduct which could indicate his intention to discredit his victim or to impair the latter’s working conditions. Furthermore, such an interpretation, based on the malicious intent of the alleged harasser, would not be reconcilable with the definition of ‘harassment’ given by Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, which provides that unwanted conduct ‘has the purpose or effect’ of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment, showing that the Community legislature intended, as is confirmed by recital 30 in the preamble to that directive, to ensure adequate judicial protection for the victims of psychological harassment. Such protection could not be ensured if psychological harassment were to refer only to conduct with the purpose of undermining the personality of a person, in view of the great difficulty faced by the victims of behaviour intentionally aimed at harassing them psychologically in proving the reality of such intent as well as the motive behind that intent. Lastly, it would also hardly be likely that the Community legislature, having determined, by Directive 2000/78, that behaviour which, without having the purpose, nevertheless has the effect of undermining the dignity of a person constitutes harassment, would have decided, in 2004, on the occasion of the reform of the Staff Regulations by Regulation No 723/2004 amending the Staff Regulations of Officials and the Conditions of employment of other servants, to reduce the level of judicial protection guaranteed to officials and other servants and, in adopting Article 12a(3) of the Staff Regulations, would have restricted psychological harassment solely to conduct which had the purpose of undermining the dignity of a person.
(see paras 132-139)
2. The failure to reply to a request for assistance under Article 24 of the Staff Regulations gives rise, at the end of the period of four months provided for in Article 90(1) of the Staff Regulations, to an implied decision rejecting that request, which constitutes an act adversely affecting the person concerned. Even if the administration is under an obligation, when an official who is asking his institution for protection provides some evidence of the reality of the attacks of which he claims he was the victim, to take the necessary measures, in particular to carry out an inquiry to determine the facts which gave rise to the complaint, such an obligation cannot allow the institution concerned to derogate from the provisions of Article 90(1) of the Staff Regulations, which enable the official to prompt the administration to adopt a position constituting a decision within a set period.
Moreover, although it is true that the administration cannot, prior to the conclusion of the administrative inquiry, be considered to have definitively rejected the request for assistance, the fact nevertheless remains that, even before definitively adopting a position on such a request, the administration is required to adopt certain measures, at the very least as a precaution. The failure to adopt such measures, as a consequence of the silence of the administration on that request, is capable of adversely affecting the person concerned.
(see paras 193, 195-196)
See:
T-135/89 Pfloeschner v Commission [1990] ECR II‑153, para. 17; T‑223/95 Ronchi v Commission [1997] ECR-SC I‑A‑321 and II‑879, para. 31; T-154/05 Lo Giudice v Commission [2007] ECR-SC I‑A‑2‑0000 and II‑A‑2‑0000, para. 136
3. By reason of the duty to provide assistance laid down in 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.
The administration fails to reply with all the necessary diligence to a request for assistance based on an allegation of psychological harassment where it does not, before even opening an administrative inquiry, remove the official concerned from his post temporarily, even though the importance and seriousness of the facts alleged reveal, if not the existence of psychological harassment, at least a suspicion thereof, and the internal rules adopted by the institution in question provide for the possibility of adopting such measures for the benefit of the presumed victim at the least suspicion of psychological harassment.
(see paras 205, 207, 209, 213)
See:
224/87 Koutchoumoff v Commission [1989] ECR 99, paras 15 and 16
T-5/92 Tallarico v Parliament [1993] ECR II‑477, para. 31; T‑136/98 Campogrande v Commission [2000] ECR-SC I‑A‑267 and II‑1225, para. 42
4. The periodic report, an internal document which plays an important role in the progress of an official’s career, affects the interest of the person appraised only until the termination of his service. After that termination, an official no longer has any legal interest in continuing an action brought against a staff report, unless he establishes the existence of a special circumstance proving a current, personal interest in obtaining the annulment of the report in question. An official who retires on the ground of invalidity no longer has any such interest where the Invalidity Committee considered that, because of the permanent nature of the illness resulting in that measure, no further medical review was needed.
However, that official still has an interest in seeking a ruling on the lawfulness of that report in connection with a claim for compensation for the professional and non‑material damage which he considers that he has suffered owing to the administration’s allegedly wrongful conduct.
(see paras 227, 228, 259)
See:
T-20/89 Moritz v Commission [1990] ECR II‑769, para. 18; T‑105/03 Dionyssopoulou v Council [2005] ECR-SC I‑A‑137 and II‑621, para. 20; T-249/04 Combescot v Commission [2007] ECR-SC I‑A‑2‑0000 and II‑A‑2‑0000, para. 47, on appeal before the Court of Justice, C‑525/07 P
5. A claim for compensation for the material harm suffered by an official on account of his retirement on the ground of invalidity, allegedly as the consequence of an occupational disease due to the administrative faults committed by his administration, must be dismissed. The Community judicature does not have jurisdiction to rule on the causal connection existing between the conditions of service of an official and the illness which he relies on, since Article 18 of the common rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease provides that the decision recognising the occupational nature of a disease is to be taken by the appointing authority on the basis of the findings of the doctor(s) appointed by the institution and, where the official so requests, after consulting the Medical Committee referred to in Article 22 of the Insurance Rules . The scheme established pursuant to Article 73 of the Staff Regulations provides for lump‑sum compensation in case of accident or occupational disease, without there being any need for the person concerned to prove any fault on the part of the institution, and it is only in circumstances where the staff insurance scheme does not permit appropriate compensation for the injury suffered that the official is entitled to seek additional compensation.
On the other hand a claim for compensation for the non-material damage suffered by the applicant must be considered by the court.
(see paras 238-240, 242)
See:
169/83 and 136/84 Leussink v Commission [1986] ECR 2801, para. 13; C-257/98 P Lucaccioni v Commission [1999] ECR I‑5251, para. 22
T-165/95 Lucaccioni v Commission [1998] ECR-SC I‑A‑203 and II‑627, para. 74; T-300/97 Latino v Commission [1999] ECR-SC I‑A-259 and II‑1263, para. 95
F-23/05 Giraudy v Commission [2007] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 193
6. The annulment of an unlawful career development review cannot, by itself, constitute appropriate and sufficient compensation for the non-material damage suffered by an official where that review contains explicitly negative assessments of the official’s abilities.
(see para. 273)