Judgment;Information — ECLI:EU:T:2022:452
Date: 2022-07-13
Language of the case: English
Court formation: Seventh Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Action for damages - unfounded;Staff cases - decision unnecessary

summary form in the application by putting forward complaints or arguments which do not appear therein. 105 The applicants contend that the application may be supported and supplemented, on specific points, by references to extracts from documents annexed thereto, provided that the essential facts and law on which the action is based are apparent, at least in summary form, from the text of the application itself, which is the case here. 106 Under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 thereof, and Article 76(d) of the Rules of Procedure of the General Court, the application must contain the subject matter of the dispute, the pleas in law and arguments relied on and a summary of those pleas in law. 107 With regard to the annexes to the application, it should be recalled that it is not for the General Court to seek and identify in those annexes the information on which the action could be based. The annexes in fact have a purely evidential and instrumental function, and cannot therefore serve as a basis for developing a plea set out in summary form in the application by putting forward complaints or arguments which are not contained in that application (see, to that effect, judgment of 30 January 2007, France Télécom v Commission, T‑340/03, EU:T:2007:22, paragraphs 30 and 167 and the case-law cited). 108 In the present case, Annexes A.27 and A.43, which are entitled, respectively, ‘Factual elements relat[ing] to the situation of HV’ and ‘Factual elements relat[ing] to the situation of HY’, constitute supplements to the application, drawn up for the purposes of the court proceedings by the applicants’ lawyers. Since they have neither a probative nor an instrumental function, those annexes are, accordingly, inadmissible. 109 The plea of inadmissibility raised by the ECDC must therefore be upheld. 2. Substance (a) The applicants’ respective claims for compensation 110 In their action, the applicants claim to have suffered material and non-material harm as a result of the lack of an appropriate response from the ECDC to the Head of Unit’s behaviour towards them between 2012 and 2018 which, in their view, constituted psychological harassment. (1) AI 111 AI claims that he had already informed the former Director of the erratic behaviour of the Head of Unit during a meeting with the members of the Staff Committee in May 2012. AI states that he had himself suffered harassment by the Head of Unit from 2013 onwards and had, in his capacity as a member of the Staff Committee, been made aware of complaints from other colleagues in 2014 and 2015. In his view, from 2015 onwards, he repeatedly discussed his situation with his line manager, D, and frequently complained about the behaviour of the Head of Unit. D informed the Director of those complaints prior to 20 June 2017, the date on which AI submitted his first request for assistance. 112 Furthermore, AI claims that his first request for assistance was dealt with neither satisfactorily nor within a reasonable time period. AI argues that the Head of Unit’s resignation did not, in the absence of any disciplinary procedure being initiated against the latter, constitute an appropriate follow-up to that request for assistance. 113 AI takes the view that the ECDC’s wrongful conduct caused him material harm linked to the failure to promote him to Grade A 9, in the amount of EUR 176 400, which corresponds to the additional remuneration that he would have received had he been promoted in 2015. AI also claims to have suffered non-material harm, estimated in the amount of EUR 180 000, on account of the abnormally high level of stress that he suffered at work during the period between 2012 and 2018. (2) HV 114 HV claims to have begun to be the victim of psychological harassment by the Head of Unit in 2012. He also complained about B’s conduct towards him. He criticises, in particular, the partial refusal to carry over his days of leave from 2013 to 2014, the unjustified and humiliating nature of the verification of his swipe card, an unlawful attempt by the Head of Unit to access his email box in 2014, a false accusation made by the Head of Unit which led to OLAF opening an investigation into HV, and the rejection of his request to be transferred to another unit. 115 In order to demonstrate the deterioration in his health due to the psychological harassment complained of, HV states that he was on sick leave three days in 2012, 30 days in 2013, 121 days in 2014 and six months in 2015, before his resignation on 14 September 2015. He has also produced medical certificates. 116 HV claims that he reported the Head of Unit’s behaviour on several occasions. In that regard, he refers to the steps described in paragraphs 8, 16, 28, 32, 34 and 37 above. HV has explained before the Court that it was on account of his illness that he did not complete the additional information form which the Director sent to him on 30 June 2015, referred to in paragraph 41 above. 117 HV submits that the ECDC’s wrongful conduct caused him material harm linked to his resignation before the end of his employment contract, in the amount of EUR 508 364.64, which corresponds to the remuneration he would have received had he remained in his post for a further period of 10 years. HV also claims non-material harm, estimated in the amount of EUR 90 000, on account of the suffering which he claims to have undergone, during the period between 2012 and 2015, physically, mentally and in his private life. (3) HW 118 HW claims that her direct line managers were satisfied with her work, unlike the Head of Unit who, she claims, ‘wanted to get rid of her’. She states that the latter was very aggressive towards her, often shouting in bilateral meetings or in public. Similarly, he spoke in French at meetings, knowing that she could not understand that language. The deterioration in HW’s health began, it is claimed, when the Head of Unit decided, in 2013, to remove her from her duties in the Emergency Operations Centre in connection with a particular disease. The Head of Unit’s animosity towards her also became apparent during the appraisal of her performance for 2013, described in paragraphs 21, 25 and 26 above. The non-renewal of her contract, announced on 26 March 2015 and formally decided in May 2015, also forms part of the harassment complained of. 119 In order to demonstrate the deterioration in her health, HW states that, until 30 September 2014, she had taken only a few days of isolated leave or short periods of sick leave. Her first period of long-term sick leave began on 1 October and ended on 23 December 2014. HW returned to work at the beginning of January 2015. She was then placed on long-term sick leave from 15 March 2015 until 31 October 2015, the date on which her contract ended. After several months of sick leave, HW eventually submitted a request for recognition of an occupational disease, which was granted. 120 According to HW, the former Director acknowledged in November 2014 that the Head of Unit’s behaviour in the appraisal of her performance for 2013 (see paragraphs 21, 25 and 26 above) had been unacceptable. She states that she also approached a confidential counsellor in 2015 (see paragraph 28 above) and informed the Director of the occupational nature of her illness (see paragraph 42 above). HW explains that she did not complete the additional information form sent by the Director on 30 June 2015 (see paragraph 41 above) as she was very ill, depressed and disheartened. 121 At the time when the present action was brought, HW stated that she was still being treated and had had to wait two years after her departure from the ECDC before she was able to find a new job that allows her to work from home on account of her health problems. She has produced medical certificates. 122 HW takes the view that the ECDC’s wrongful conduct caused her material harm linked to the non-renewal of her contract in 2015, evaluated before the Court in the amount of EUR 455 248.37, which corresponds to part of the remuneration that she would have received if her contract had been renewed for a period of five years. HW also claims to have suffered non-material harm, estimated in the amount of EUR 120 000, on account of the abnormally high level of stress that she claims to have suffered during the period between 2011 and 2015. (4) HY 123 HY claims that her performance was considered satisfactory in all her appraisal reports, with the exception of the last of these. She points out that, during an initial period of employment, she had to take decisions which were not necessarily in line with those of the Director (then Head of the Resource Management and Coordination Unit) or of the Head of Unit. Furthermore, following the change referred to in paragraph 10 above, the Head of Unit lost part of his power and freedom in IT matters. 124 According to HY, in September or October 2013, she was asked to perform certain tasks for the former Director and the Management Board of the ECDC, following which she began to face pressure from the Head of Unit, and was subjected to denigration, defamation, humiliation, intimidation, disrepute and general rejection. 125 It is claimed that, in 2014, the former Director withdrew his support, leaving HY very exposed to the aggressive, intimidating and humiliating behaviour on the part of the Head of Unit. She also complains of micromanagement by her line managers and the suggestion, made by the former Director, that the new unit under her management be co-managed along with the Head of Unit. 126 In 2015, when the Director took up her duties ad interim, HY and her team were, it is claimed, overwhelmed with assessments and audits, and the Director did not protect her from the abusive conduct which continued, albeit more subtly. Thus, HY’s team was subjected to approximately seven audits, investigations or evaluations in a year. 127 HY also complains of the defamation to which she was subject in 2016, during a recruitment procedure within the unit run by the Head of Unit (see paragraph 51 above). 128 HY claims that she suffered from increasing health issues. She points out that she was placed on sick leave from September 2016 until the end of her contract on 31 January 2018. The failure to renew her contract constitutes, according to HY, the expression of the harassment that she endured. 129 HY claims that she repeatedly reported her situation by taking the steps described in paragraphs 27, 43 and 51 to 54 above. She claims that the document dated 17 December 2014, referred to in paragraph 27 above, concerning the elements which, in her view, created non-workable work conditions and a perception of harassment, referred to the Head of Unit’s conduct. 130 HY states that she had a road traffic accident in 2016 and nearly had two others on account of her poor health. During her sick leave from September 2016 to January 2018, there was no contact of any sort from her peer colleagues. The decision not to renew her contract was not accompanied by any expression of empathy. HY has produced medical certificates and the description of her medical file from 2016 to 2018. 131 HY claims that the ECDC’s wrongful conduct caused her material harm connected to the non-renewal of her contract in 2017, in the amount of EUR 552 625.40, which corresponds to the remuneration that she would have received if her contract had been renewed for a period of five years. HY also claims to have suffered non-material harm, estimated in the amount of EUR 90 000, on account of the abnormally high level of stress that she claims to have suffered during the period from September 2013 to September 2016. (b) The conditions necessary for the European Union to incur liability 132 It should be recalled that in order for liability to arise on the part of an institution, organ, body or agency of the European Union, a number of conditions must be satisfied, namely that the conduct of which the institution, organ, body or agency is accused must be unlawful, actual damage must have been suffered, and there must be a causal link between the alleged conduct and the damage pleaded, those three conditions being cumulative (see judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 47 and the case-law cited). 133 Having regard to the fact that the European Union is thus under a greater liability where it acts as employer, a mere finding of unlawfulness against the appointing authority or AECE, whether it relates to an act or to decision-making conduct, is sufficient to satisfy the first of the three conditions necessary to incur the liability of the European Union for damage caused to its officials and servants due to an infringement of the law governing the EU civil service (see judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 50 and the case-law cited). 134 As regards the circumstances in which a finding of unlawfulness can be made, the discretion enjoyed by the administration must be taken into account. Hence, if the administration is required, under the legislation in force, under general principles or fundamental rights, or indeed under rules it has imposed on itself, to adopt a particular form of conduct, the simple failure to fulfil that obligation is such as to give rise to liability on the part of the institution concerned. By contrast, where it has a wide discretion, and in particular where the applicable legal framework does not require it to act in a predetermined manner, only a manifest error of assessment constitutes unlawfulness (see judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 51 and the case-law cited). 135 The complaints relied on by the applicants in connection with their claims for compensation must be examined in the light of those considerations. (c) The alleged unlawfulness 136 As is apparent from paragraphs 110 to 131 above, each of the applicants claims to have suffered material and non-material harm as a result of the ECDC’s failure to respond appropriately to the Head of Unit’s behaviour towards them between 2012 and 2018 which, in their view, constituted psychological harassment. 137 In particular, the applicants claim that the ECDC’s wrongful conduct is twofold. First, neither the former Director, the Director, nor the Human Resources manager guaranteed them a safe working environment for six years (from 2012 to 2018), despite the alerts given by the applicants, at least 10 times, and by other staff members, about the serious behaviour of the Head of Unit. Second, the ECDC reacted too late, since the harm suffered was already irreversible. The ECDC was informed of the state of the applicants’ health, since several medical certificates had been produced, and it had all the necessary information concerning the Head of Unit’s behaviour as early as 30 June 2015. 138 It is argued that, by its failure to act, the ECDC infringed Article 31 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Article 5(1) and Article 6 of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1), Article 1e(2) of the Staff Regulations, the duty to have regard for the welfare of officials, and the obligation to provide assistance laid down in Article 24 of the Staff Regulations. As regards the latter obligation, the applicants observe that the Head of Unit’s resignation did not constitute a proper follow-up to the complaints, and that AI’s first request for assistance was not dealt with satisfactorily within a reasonable time period. 139 The ECDC disputes the existence of any unlawfulness. It contends, in essence, that no request for assistance under Article 24 of the Staff Regulations was submitted until AI’s first request for assistance, submitted on 20 June 2017, the date from which the Director took all necessary measures to establish the facts and put an end to the situation at issue. Prior to that date, having regard to the information available to her, which was anonymous and lacking in detail, the Director could not have opened an investigation or adopted other measures. 140 In order to determine whether or not there was wrongful conduct on the part of the ECDC in the present case, it is necessary to examine, in the first place, the complaints relating to the inappropriateness of the handling of AI’s first request for assistance, dated 20 June 2017, and, in the second place, the complaints relating to the warnings given by the applicants before that date. 141 Those complaints must be examined in the light of (i) the obligations of the administration to protect officials and other members of staff, and (ii) the rules of the ECDC applicable to the facts at issue. (1) Reminder of the obligations of the administration to protect officials and other members of staff 142 The right of every worker to working conditions which respect his or her health, safety and dignity is expressly enshrined in Article 31(1) of the Charter. Article 1e(2) of the Staff Regulations expressly refers to working conditions meeting appropriate health and safety standards. 143 According to the explanations relating to Article 31 of the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, must be taken into consideration in interpreting the Charter, Article 31(1) thereof is based on Directive 89/391, on which the applicants also rely. 144 According to the case-law, the institutions, bodies, offices and agencies of the European Union are required, both under Article 31 of the Charter and under Articles 12a and 24 of the Staff Regulations, to ensure that the working conditions of their officials and other members of staff respect their health, safety and dignity and, accordingly, to provide them in good time with procedures that ensure that their working conditions meet those requirements (see, to that effect, judgment of 13 December 2018, CH v Parliament, T‑83/18, EU:T:2018:935, paragraph 123 and the case-law cited). 145 The duty to assist laid down in Article 24 of the Staff Regulations implies intervening with all necessary energy in the presence of an incident incompatible with the orderly and smooth running of the service. The purpose of that duty is to provide officials and other staff members in active employment with security for the present and the future so that, in the general interest of the service, they can perform their duties to the best of their ability (see judgment of 14 July 2021, AI v ECDC, T‑65/19, EU:T:2021:454, paragraph 100 and the case-law cited). 146 The duty of the administration to have regard for the welfare of its staff and the principle of sound administration imply in particular that when the competent authority takes a decision on a request for assistance from an official or a staff member pursuant to Article 24 of the Staff Regulations, it should take into consideration all the factors which may determine its decision and that when doing so it should take into account not only the interests of the service but also those of the official or staff member concerned (see judgment of 26 March 2015, CN v Parliament, F‑26/14, EU:F:2015:22, paragraph 51 and the case-law cited). 147 It is, in principle, for the official or other member of the temporary staff who considers himself or herself entitled to rely on Article 24 of the Staff Regulations to submit a request for assistance to the relevant institution, body, office or agency. However, exceptional circumstances may oblige the administration concerned to provide specific assistance not in response to a request from the individual concerned but on its own initiative (judgment of 12 June 1986, Sommerlatte v Commission, 229/84, EU:C:1986:241, paragraph 20). 148 With regard to the measures to be taken in a situation which is covered by Article 24 of the Staff Regulations, the administration enjoys a broad discretion – subject to review by the EU judicature – regarding the choice of measures and methods for implementing Article 24 of the Staff Regulations (see judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 82 and the case-law cited). 149 Where there is sufficient prima facie evidence in support of the allegations made in a request for assistance, the administration is required to open an administrative inquiry in order to ascertain the facts and, having done so, to be able to take such measures of assistance as may be appropriate; it does not have a broad discretion as to whether it is appropriate to open and conduct such an administrative inquiry (see, to that effect, judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 84 and the case-law cited). 150 As regards the requirement that the person seeking assistance must adduce prima facie evidence of the reality of the abusive conduct of which he or she claims to be a victim, the administration in question cannot be required to conduct an administrative inquiry on the basis of mere unsubstantiated allegations, given that, in defining the measures which it considers appropriate in order to establish the truth and scope of the facts alleged, the administration must also ensure that the rights of persons implicated in a request for assistance which may be the subject of an investigation are protected (see judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 58 and the case-law cited). 151 Finally, it should be borne in mind that the objective of an administrative inquiry is to ascertain the facts and, having done so, to take the appropriate action, in full knowledge of the matter, both in the light of the case that is the subject of the inquiry and, more generally, to comply with the principle of sound administration, in order to prevent such a situation recurring. Where an administrative inquiry is continued until its completion, it may, on the other hand, be possible to disprove the allegations made by the purported victim, thus making it possible to repair the damage which such an accusation, if it were to prove unfounded, may have caused to the person named as the alleged harasser by an investigation procedure (see, to that effect, judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 59 and the case-law cited). (2) Rules of the ECDC applicable to the facts at issue (i) Rules on the conduct of administrative enquiries and disciplinary procedures 152 In November 2012, the ECDC adopted rules on the conduct of administrative enquiries and disciplinary procedures (‘Implementing Rule No 29’). 153 Article 4(1) of Implementing Rule No 29 provides that an administrative enquiry is to be opened by the Director as authority authorised to conclude contracts on his or her own initiative or at the request of any Head of Unit or of the Head of Human Resources or any other designated staff member of Human Resources. 154 Article 4(2) of that rule lays down that, before opening an enquiry, the ECDC is to consult OLAF to ascertain that the latter is not undertaking an investigation into the same facts. 155 Article 4(4) provides that ‘as soon as an administrative enquiry suggests that a staff member may be personally involved in an investigation, that staff member shall be kept informed provided that information does not hinder the enquiry’. That provision also states that ‘conclusions referring to a staff member by name may not be drawn at the end of the enquiry unless that staff member has had the opportunity to express an opinion on all the facts, which relate to him or her’ and that ‘the conclusions shall record that opinion’. (ii) Rules on preventing psychological harassment and sexual harassment 156 The ECDC also has rules on preventing psychological harassment and sexual harassment. In response to a question put by the Court, the ECDC stated that those rules are set out in the Annex to Implementing Rule No 33, adopted on 14 August 2017 and entered into force the following day (‘Implementing Rule No 33’). 157 Section 7.1 of Implementing Rule No 33 provides: ‘Any person who feels they are the victim of psychological harassment or sexual harassment is entitled to submit a request for assistance either informally or formally. As a first step, staff are strongly advised to seek resolution of the problem through conciliation, via the informal procedure, with the assistance of a confidential counsellor. Anyone who feels they are the victim of psychological harassment or sexual harassment is, however, free from the outset to initiate a formal procedure under the Staff Regulations, involving longer timeframes. The informal procedure can also lead to a formal procedure if it proves impossible to find a solution.’ 158 Section 7.5 of Implementing Rule No 33, entitled ‘Recurrent cases’, provides as follows: ‘Requests for assistance from different people involving the same individual raise concerns. These will therefore be brought to the knowledge of [Human Resources] and of the [AECE] of the alleged harasser. The [AECE] will decide on the most appropriate action to be taken. [Human Resources] will inform the investigator of any recurrent cases it identifies. The investigator will inform the appointing authority which will, where appropriate, launch the procedures provided for in Annex IX to the Staff Regulations.’ 159 Following the adoption of Implementing Rule No 33, a further document, entitled ‘Informal Procedure for Cases of Psychological and Sexual Harassment – Manual for ECDC Internal Confidential Counsellors’, was drawn up by the ECDC (‘the Manual for ECDC Confidential Counsellors’). 160 As is apparent from Section 1 of that manual, the purpose thereof is to clarify the obligations and rights of all parties concerned in the informal procedure on harassment and to define their role in case it proves impossible to find a solution in the informal procedure and a formal procedure is opened. It also sets out the role of confidential counsellors in the context of the informal procedure. 161 Section 3.7 of the Manual for ECDC Confidential Counsellors provides that ‘a formal procedure is initiated on the basis of a written request for assistance by the complainant under Article 24 of the Staff Regulations, submitted to the Human Resources Manager and Legal Adviser, who are responsible for initiating the procedure’. That provision also states that, ‘in very rare and problematic cases where the health of the victim is in danger and the victim him-/herself is not capable of initiating an opening procedure, the Confidential Counsellor may contact [Human Resources] and the Head of [the] Resource Management and Coordination Unit / Director without the consent of the victim’. 162 At the hearing, the ECDC stated that, before the adoption of Implementing Rule No 33 on 14 August 2017, information on the draft rules on harassment appeared on the agency’s intranet, but that it was also clear from that information that these were only draft rules. It is also apparent from the information before the Court that confidential counsellors had already been appointed in 2015. (3) The complaints relating to the inappropriate nature of the handling of AI’s first request for assistance 163 AI claims that his first request for assistance, dated 20 June 2017, was dealt with neither satisfactorily nor within a reasonable time period. Following that first request, the Head of Unit still had the opportunity to denigrate him, by himself submitting a request for assistance on 29 May 2018. AI takes the view that the teleworking arrangements which were granted to him by the Director from 13 November to 9 December 2017 were clearly not the ideal solution, since that measure involved sending him home while keeping the Head of Unit in-house, which further emphasised the feeling of impunity. The decision of 18 May 2018, in response to his first request for assistance, was adopted by the Director almost five months after receiving the investigation report. Lastly, it is argued that the resignation tendered by the Head of Unit, referred to in the decision of 18 May 2018, did not, in the absence of any disciplinary procedure initiated in respect of the Head of Unit, constitute an appropriate follow-up to AI’s first request for assistance. 164 In the first place, as regards the complaint that AI’s first request for assistance was not dealt with within a reasonable time period, the Court finds that approximately three months elapsed between the submission of that request for assistance and the opening of the investigation. That time period may, however, be explained by (i) the sending by AI on 14 July 2017 of an additional information form, (ii) the need to consult OLAF beforehand in accordance with Article 4(2) of Implementing Rule No 29, and (iii) the summer holiday period. 165 Similarly, more than three months elapsed, admittedly, between the date on which the investigation report was lodged and the date on which that report was communicated to the Head of Unit. However, that time period is explained by the Head of Unit’s sick leave during that period. The Director’s decision to await the return of the Head of Unit in April 2018 in order to garner his comments on the investigation report was justified by the need to give the Head of Unit an effective hearing, pursuant in particular to Article 4(4) of Implementing Rule No 29 (see paragraph 155 above). 166 On the basis of these findings, that complaint must be rejected. 167 In the second place, as regards the complaint that the Head of Unit had the opportunity to denigrate AI following the submission of his first request for assistance, it should be noted that, when AI approached the Director on 26 October 2017 concerning a meeting which was to be held in the presence of the Head of Unit and which, for that reason, AI was concerned about (see paragraph 65 above), the Director attended that meeting in order to prevent any incidents. Furthermore, the request for assistance made by the Head of Unit on 29 May 2018 related to the disclosure in the Swedish media of confidential information relating to the investigation of which he was the subject, and was closed without any action being taken (see paragraph 79 above). 168 AI cannot, therefore, claim that he was not protected following the submission of his first request for assistance in the face of the allegedly wrongful conduct of the Head of Unit, with the result that the present complaint must also be rejected. 169 In the third place, as regards the complaint that the teleworking arrangements granted to AI were inappropriate, it is clear that these were suggested by AI himself in a list, drawn up at the request of the Director, in which he had mentioned several possible solutions in no particular order of preference. It is apparent from his email of 8 November 2017 (see paragraph 68 above) that he regarded that measure as appropriate. During the subsequent period, AI’s teleworking and the holidays taken at the end of the year enabled AI and the Head of Unit each to work at the same time at their normal place of work, in a management relationship, only for three weeks, approximately, in January 2018, until the Head of Unit was placed on sick leave. When that leave ended, at the end of March 2018, he did not resume his previous duties, but instead was responsible for performing tasks directly entrusted to him and supervised by the Director, and had no further management relationship with AI. 170 In the light of those factors, it must be held that the measures taken made it possible to limit contact between AI and the Head of Unit and were appropriate. The present complaint is therefore unfounded. 171 In the fourth and last place, as regards the complaint that acceptance of the resignation tendered by the Head of Unit without initiating disciplinary proceedings did not constitute an adequate follow-up to AI’s first request for assistance, that complaint is in no way substantiated in the present case and does not satisfy the requirements laid down in Article 76(d) of the Rules of Procedure. That complaint is therefore inadmissible. 172 In the light of all the foregoing considerations, the complaints relating to the inappropriate nature of the handling of AI’s first request for assistance must be rejected in their entirety. (4) The complaints relating to the alerts given by the applicants before AI’s first request for assistance 173 The applicants claim that the ECDC did not guarantee them a safe working environment despite the numerous and repeated alerts which they and other members of the ECDC staff gave before AI’s first request for assistance. 174 In their arguments concerning the existence of unlawfulness, the applicants list the following 10 alerts, which arose between 2012 and 2016. It is claimed that, in May 2012, AI made a verbal complaint to the former Director. In 2013, HV requested assistance from Human Resources. At the end of August 2014, HV again wrote to Human Resources and his lawyer expressed concerns about the Head of Unit’s behaviour. As early as 2015, AI discussed the situation with his line manager, D. It is claimed that the latter passed AI’s concerns on to the ECDC. In April 2015, HV had, in his own words, ‘requested the assistance of the PMO (Head of Unit) by providing evidence of the negative impact of the Head of Unit’s behaviour on his health’. The applicants state that on 4 May 2015, HV sent ‘a very detailed e-mail to the Director to request her assistance’. During the meetings held in May and June 2015 between the Staff Committee and the Director, AI advised the latter of the detrimental attitude of the Head of Unit. In December 2016, AI and HY alerted a confidential counsellor. That alert was preceded by that given by HW in the spring of 2015. Lastly, the medical service was also fully informed of the situation, in particular on account of the applicants’ sick leave. 175 In the section of the application headed ‘Facts’, the applicants refer to other alerts given before AI’s first request for assistance. Those alerts, on which the ECDC has taken a position in its defence and rejoinder, will also be examined by the Court inasmuch as those elements are linked to the alleged unlawfulness. 176 The applicants state that the case-law does not require an official or member of staff to have made a request for assistance in order to be able to rely on the administration’s duty to have regard for the welfare of officials, provided that the administration has been alerted by other means. In the present case, according to the applicants, the ECDC should have opened an investigation and provided them with appropriate assistance, in particular by virtue of its duty to have regard for the welfare of officials. 177 At the hearing, the applicants also referred to the case-law referred to in paragraph 147 above, according to which, in compliance with Article 24 of the Staff Regulations, exceptional circumstances may require an EU institution, body, office or agency to provide assistance of its own motion, without it being a response to an individual request. In that connection, the applicants observe that, in accordance with Section 3.7 of the ECDC’s Manual for Confidential Counsellors (see paragraph 161 above), the latter may contact Human Resources, the Head of the Resource Management and Coordination Unit, or the Director without the consent of the victim in very rare and problematic cases, where the health of the victim is in danger and he or she is not capable of initiating an opening procedure. According to the applicants, even though that manual was adopted only in 2017, that provision shows that the duty to provide assistance may require the administration to act even in the absence of a formal complaint. 178 The ECDC contends that the applicants have failed to adduce evidence of some of the informal alerts referred to in paragraph 174 above. 179 As regards the other alerts, the ECDC observes that it is true that HW, HV and a third person initiated an informal procedure in 2015 by referring the matter to confidential counsellors, of which the Director was informed. The latter sent those three members of staff a request for additional information by separate emails dated 30 June 2015. However, in the absence of a reply from HW and HV, the Director closed the case by emails of 20 and 21 September 2015 respectively. The ECDC states that the third member of staff provided additional information which was, however, not regarded as sufficient to reveal possible psychological harassment within the meaning of Article 12a of the Staff Regulations, which would justify the initiation of a formal investigation. 180 The ECDC draws attention to the informal nature of the applicants’ alerts and to the lack of any request for assistance under Article 24 of the Staff Regulations until that made by AI on 20 June 2017. In response to a question from the Court, the ECDC did not rule out the possibility that HV’s email of 4 May 2015, addressed to the Director, could be classified as a request for assistance, a description which was given by HV’s legal representative in an email of 22 May 2015 (see paragraph 37 above). In such a situation, however, it would have to be considered that that request for assistance was rejected by the Director in her email of 21 September 2015. Since HV did not challenge that decision in 2015, he cannot, by means of a claim for compensation, seek to obtain the same result as the outcome of an action for annulment which he failed to bring in due time. The ECDC has, however, left the issue to the discretion of the Court. 181 Lastly, at the hearing, the ECDC claimed that the Director did not wait for the submission of a request for formal assistance in order to take action, by requesting additional information from HV and HW, without, however, obtaining a response from them. The ECDC also points out that, furthermore, she had meetings with the Staff Committee on 19 May and 4 and 17 June 2015 concerning the behaviour of the Head of Unit towards several members of staff (see paragraphs 36, 39 and 40 above) and that she suggested certain solutions. However, in the absence of concrete and non-anonymised situations, she could not have opened an investigation. 182 As has been recalled in paragraph 147 above, it is, in principle, for the official or other member of the temporary staff who considers himself or herself entitled to rely on Article 24 of the Staff Regulations to submit a request for assistance to the relevant institution, body, office or agency. However, certain exceptional circumstances may oblige the administration to provide specific assistance not in response to a request from the person concerned but on its own initiative. Furthermore, the obligations arising for the administration from the duty to have regard for the welfare of officials are substantially enhanced where the situation of an official whose physical or mental health is shown to be affected is involved (see judgment of 15 September 2011, Esders v Commission, F‑62/10, EU:F:2011:141, paragraph 80, and the case-law cited). 183 In the present case, certain events, referred to in paragraphs 36 and 39 to 42 above, occurred in 2015. 184 At that time, the confidential counsellors informed the Director of the existence of three informal procedures initiated by three members of staff, including HV and HW, concerning the Head of Unit’s behaviour. Those two applicants were, moreover, on sick leave. The names of those three persons were communicated to the Director. As was confirmed at the hearing, the Head of Unit was also informed of those three informal procedures. 185 That alert was given because, even though the ECDC’s internal rules on preventing harassment had not been formally adopted at that time, the Director and Human Resources had to be informed when three informal procedures had been initiated in respect of the conduct of the same member of staff. On 14 August 2017, those rules on preventing harassment were adopted. Special attention is paid in those rules to recurrent cases. Section 7.5 of those rules in fact provides that the AECE must be informed of such cases and ‘decide on the most appropriate action to be taken’. 186 In parallel with that warning on grounds of recurrence, the Director and the Staff Committee met three times in May and June 2015, with that committee transmitting the complaints of about 10 members of the ECDC staff reporting the same type of conduct, of which they considered themselves to have been victim. 187 The ECDC explained at the hearing, in response to a question put by the Court, that 75 people were dependent on the Head of Unit. Furthermore, all ECDC staff contracts were temporary and subject to renewal, which reinforced the Head of Unit’s power to influence. 188 In that situation, the Director proposed that she or a third party moderate a meeting between the Head of Unit and the persons concerned. If one of those persons did not wish to participate personally in the meeting, his or her written testimony (indicating the name of the person and describing the situation, the conduct complained of and its impact) could be presented by the Staff Committee. Furthermore, the Director stated that the alternative for the persons concerned would be to submit formal complaints (see paragraph 39 above). However, the meeting proposed by the Director did not take place because, according to the Staff Committee, the persons concerned feared retaliation, inter alia (see paragraph 40 above). The Director also contacted the three members of staff who had, at that date, approached a confidential counsellor, including HV and HW, to ask them for additional information on their personal situation (see paragraph 41 above). 189 The applicants claim, however, that those measures were insufficient, in the absence of protection against the Head of Unit’s behaviour and of any opening of an investigation into the facts complained of. 190 However, in the context of the present action, the ECDC cannot validly be criticised for not having taken specific action with regard to the applicants on the basis of the duty to provide assistance laid down in Article 24 of the Staff Regulations, the administration’s duty to have regard for the welfare of officials and its duty to guarantee working conditions which respect health and dignity, on which the applicants also rely (see paragraph 138 above). 191 The existence of exceptional circumstances which should have led the ECDC to open an administrative investigation of its own motion or to adopt other measures of assistance with regard to the applicants has not been established, since the facts at issue do not show that it was impossible for the applicants to submit a request for assistance. In that connection, the claim concerning the fear of retaliation, made by the applicants without referring to concrete and exceptional situations, does not demonstrate that it was impossible to do so. 192 Moreover, it has not been established, or even alleged before the Court, that the applicants were in an exceptional situation which required that confidential counsellors contact the competent authorities without their consent, in order to request that an investigation be opened or other measures adopted. 193 As regards the medical service, the applicants state that it had information about the Head of Unit, but without providing evidence in support of that assertion. Moreover, it has not been claimed that that information concerned the Head of Unit’s behaviour with regard to the applicants. 194 In so far as concerns the particular situation of each applicant, there is nothing in the information before the Court to show that the competent authorities were specifically informed of AI’s personal situation before 20 June 2017. The existence of the verbal complaint which he claims to have submitted to the former Director in 2012, the content of which has not been described, has not been proved. AI’s participation, in his capacity as a member of the Staff Committee, in meetings held in May and June 2015 with the Director is not disputed. However, AI has failed to show that specific and relevant evidence of his personal situation was communicated to the Director at those meetings. Furthermore, even if, as the applicants claim, D had informed the Director, before 20 June 2017, of AI’s complaints, that was a single indirect alert only. Furthermore, no details have been given of the specific facts alleged by D. Finally, it must be observed that, as soon as AI provided concrete information relevant to his first request for assistance, the Director took appropriate protective measures and dealt with that request within a reasonable time period (see paragraphs 163 to 172 above). 195 It must be concluded that none of the alleged infringements, referred to in paragraph 190 above, can be identified with regard to AI, without it being necessary to adopt the measure of inquiry requested by the applicants seeking that the Court order that D be examined as a witness. 196 As regards HW, she did not reply to the request for additional information sent to her by the Director, on the latter’s own initiative, on 30 June 2015. The applicants claim that HW’s situation was discussed at meetings held in May and June 2015, but they have failed to adduce any evidence to that effect or to describe the allegations made. The same is true of the exchanges which HW may have had with the former Director in 2014 in the context of the appraisal exercise in respect of her performance during 2013. 197 In those circumstances, none of the unlawfulness complained of can be identified with regard to HW. 198 As regards HY, her situation is different from that of the other applicants since, being herself a head of unit, she had no relationship of subordination with the Head of Unit. In response to a question put by the Court, the applicants stated that HY’s specific role as head of unit and her membership of the management team (which brought together the five heads of unit and the Director) meant that it was difficult for the Staff Committee to treat her in the same way as the other members of the ECDC staff. The applicants claim, however, that HY’s situation was discussed at meetings held in May and June 2015, but they have failed to adduce any evidence to that effect or describe the allegations made. Immediately after those meetings, HY completed a questionnaire sent by the Director when the latter took up her duties ad interim. In that document, HY stressed the need for the Director to ensure an appropriate working environment and that she should not tolerate the unacceptable behaviour of ‘some senior staff’. Apart from the fact that it was an abstract request, the name of the Head of Unit was not mentioned. HY states that she sent ‘another alarming email on 7 October 2015’, but that email does not appear in the case file. 199 The applicants also rely on a document drawn up by HY, dated 17 December 2014, which criticised ‘non workable work conditions’ and which was sent to the former Director and the Director in order to be discussed at a meeting scheduled for 21 January 2015, which ultimately did not take place. The applicants have claimed that that document referred to the Head of Unit. The ECDC does not dispute that the relationship between the Head of Unit and HY was difficult and that an attempt at mediation between them was unsuccessful. At the hearing, in response to a question put by the Court, the ECDC nonetheless expressed doubts as to whether the document dated 17 December 2014 referred to the Head of Unit and whether it had in fact been sent to the management of the ECDC. 200 In that connection, it should be noted that the document dated 17 December 2014 does not mention the name of the Head of Unit. Furthermore, even if it were to be considered that that document concerned the Head of Unit, it is clear that in that document, HY solely described aspects which, in her view, created ‘a perception of harassment’, and that she has failed to adduce evidence that that document was communicated either to the former Director or to the Director. 201 It must be concluded that none of the alleged infringements can be identified with regard to HY, without it being necessary to adopt the measure of inquiry requested by the applicants seeking that the Court order that E be heard as a witness. 202 Finally, as regards HV, it must be pointed out that he did not reply to the request for additional information sent to him by the Director, on the latter’s own initiative, on 30 June 2015. Prior to that date, it is apparent from the information before the Court that HV and a person working in Human Resources met in 2013 concerning the behaviour of the Head of Unit and of B. However, no evidence of the specific allegations made during that meeting has been adduced. By email of 4 February 2014, HV informed the Head of Human Resources of the implementation of a procedure for checking his swipe card. However, that email did not contain any allegation of harassment. The ECDC does not dispute that, at the end of August 2014, HV asked Human Resources for a transfer to another unit, but HV has failed to describe the specific conduct which he was able to report at that date. HV also contacted the PMO in April 2015, but the ECDC was not informed of this. In so far as concerns the argument that, in June 2015, HV informed the Director of the harassment that he was experiencing, in addition to the fact that this argument was put forward before the Court at a late stage in the proceedings, no evidence of those allegations has been adduced. 203 Admittedly, in an email of 4 May 2015 described as a ‘request for assistance’ by the applicants, HV sent the Director specific allegations concerning the Head of Unit’s behaviour from December 2012 onwards and his own situation, including his request for transfer to another unit and his negative appraisal reports (see paragraphs 34, 37 and 174 above). However, HV cannot profitably rely on that request in the context of the present action in order to complain that the ECDC failed to act, since he neither replied to the request for additional information sent to him by the Director on 30 June 2015, nor challenged the latter’s conclusion, communicated by email of 21 September 2015, that there were not sufficient allegations and evidence to indicate possible harassment which would justify the opening of an investigation into the situation. As the applicants acknowledged in response to a question put by the Court, a party may not, by means of an action for damages, seek to obtain the same result as it would have obtained had it been successful in an action for annulment which it failed to commence in due time (see judgment of 18 November 2014, McCoy v Committee of the Regions, F‑156/12, EU:F:2014:247, paragraph 96 and the case-law cited). 204 It follows that none of the unlawfulness complained of can be found with regard to HV. 205 In the light of the foregoing considerations, the applicants’ complaints concerning the inappropriate nature of the treatment of the alerts which they had given before AI’s first request for assistance must be rejected in their entirety. (d) Conclusion 206 In the absence of unlawfulness with regard to the applicants, the claim for compensation must be dismissed in its entirety, without it being necessary to consider the conditions relating to the existence of harm and of a causal link. Costs 207 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 208 According to Article 135(1) of the Rules of Procedure, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing its own costs, or even that it is not to be ordered to pay any costs. 209 In the present case, it is a fair assessment of the circumstances of the case to order each party, in the interests of equity, to bear its own costs. On those grounds, THE GENERAL COURT (Seventh Chamber) hereby: 1. Dismisses the action; 2. Orders each party to bear its own costs. da Silva Passos Truchot Sampol Pucurull Delivered in open court in Luxembourg on 13 July 2022. E. Coulon S. Papasavvas Registrar President Table of contents I. Background to the dispute II. Events subsequent to the bringing of the action III. Forms of order sought IV. Law A. The claim for annulment B. The claim for compensation 1. The plea of inadmissibility raised by the ECDC 2. Substance (a) The applicants’ respective claims for compensation (1) AI (2) HV (3) HW (4) HY (b) The conditions necessary for the European Union to incur liability (c) The alleged unlawfulness (1) Reminder of the obligations of the administration to protect officials and other members of staff (2) Rules of the ECDC applicable to the facts at issue (i) Rules on the conduct of administrative enquiries and disciplinary procedures (ii) Rules on preventing psychological harassment and sexual harassment (3) The complaints relating to the inappropriate nature of the handling of AI’s first request for assistance (4) The complaints relating to the alerts given by the applicants before AI’s first request for assistance (d) Conclusion Costs * Language of the case: English. 1 Confidential information omitted.