Opinion of the Advocate General — ECLI:EU:C:2018:930
Date: 2018-11-21
Language of the case: English
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Appeal - unfounded;Appeal - inadmissible;Action for damages - unfounded;Staff cases - successful;Appeal - successful;Action for damages - decision unnecessary

summary of the information used as the basis for the investigation report, without disclosing the identity of the persons providing those witness statements. 60. It follows from the foregoing that by holding, in such circumstances, that the Investigation Panel was not required to disclose to the appellant the content of the statements of the person accused of harassment and of the witness statements on which the Investigation Panel intended to base its recommendations, the General Court erred in law. The first complaint of the first part of the first ground of appeal must therefore be upheld. – The appellant’s right to demand that the proposed witnesses be called 61. The appellant also complains that the General Court held that observance of her right to be heard and the adversarial principle did not require that all her proposed witnesses be called. 62. In that regard, it should be noted that, according to the case-law of the Civil Service Tribunal cited in paragraph 55 of the judgment under appeal, an Investigation Panel is certainly not required to call all the witnesses proposed by a complainant, because of its discretion with regard to the conduct of the investigation. (37) However, that discretion is also governed by the principle of good administration and the procedural rights of the parties concerned as enshrined in Article 41 of the Charter. Accordingly, the decisions of the Investigation Panel regarding the conduct of the investigation do not, from the outset, escape all judicial scrutiny. Thus, the Investigation Panel cannot, in particular, fail without cause and justification to hear the proposed witnesses, but must ensure that the parties are given a fair hearing in order to safeguard their right to be heard. 63. On this view, the Civil Service Tribunal considered that it was justified in not calling additional witnesses in a case in which the Investigation Panel had already called fifteen of the eighteen witnesses proposed by the person concerned, as well as twenty others. (38) It can be inferred from this that there cannot be an obligation to call all the witnesses proposed by a party where the Investigation Panel considers that it has sufficient information as to the facts and when the parties concerned have been properly heard. Similarly, in another case, the Civil Service Tribunal relied on the fact that an investigator had sufficient evidence on the file in order to uphold that investigator’s decision to call only twelve of the 52 witnesses proposed by the applicant. (39) 64. However, in the judgment under appeal, the General Court did not consider whether the panel was already sufficiently informed or whether the appellant had already been properly heard. On the contrary, it appears from the appeal, on the one hand, that only a minority of the witnesses proposed by the appellant was called and, on the other hand, that she had had no warning of this. By merely finding, in those circumstances, that the Investigation Panel was under no obligation to call all the appellant’s witnesses, the General Court therefore committed an error of law. 65. It follows that the second complaint of the first part of the first ground of appeal must also be upheld. – The rejection of the medical certificates 66. The General Court held, in paragraph 58 of the judgment under appeal, that the EIB could rightly reject the medical certificates submitted by the appellant as evidence of the existence of acts constituting harassment, since the persons who had drawn up those certificates had not witnessed the alleged acts at issue. 67. In that context, it should be noted that such medical certificates may certainly shed light on the existence or even the nature of the damage suffered by the alleged victim of harassment, depending on their content and the date on which they were drawn up. That was also recognised by the General Court in paragraph 58 of the judgment under appeal. A medical certificate cannot, however, be attributed the same probative value as the direct testimony of a person who witnessed the act at issue. However, since the purpose of the investigation was to establish whether the specific acts alleged by the complainant took place and to assess them in the light of the definition of sexual harassment, the General Court was fully entitled to find that the medical certificates produced by the appellant could not be used to determine whether or not those events occurred. (40) (iv) Interim conclusion 68. It follows from the foregoing that the General Court erred in law in holding that the rights which were available to the appellant in the context of the investigation were less extensive than those available to the person accused of harassment and that the appellant therefore had neither the right to disclosure of the content of the statements of the person accused of harassment and of the witness statements nor the right to make observations on them or to demand the calling of additional witnesses in so far as this was necessary to observe her right to be heard. (2) The second part of the first ground of appeal, alleging a lack of consequences for non-compliance with the time limits governing the investigation procedure 69. The second part of the first ground of appeal concerns the assessment by the General Court of the consequences of failure to comply with certain time limits laid down in the policy on dignity at work. The General Court held, in paragraphs 47 to 49 of the judgment under appeal that, despite the failure to comply with those time limits, no unlawful conduct can be imputed to the EIB, since the appellant had received the notification of the hearing and the decision within a reasonable period and the EIB had acted with due diligence. The appellant, however, is of the view that the General Court should have concluded that the time limits at issue were strictly binding in nature. 70. First of all, it must be held that the policy on dignity at work, since it forms part of the internal rules of the EIB, is legally binding in nature, as is recognised, moreover, by the General Court in paragraph 33 of the judgment under appeal. (41) Accordingly, and contrary to what the General Court nevertheless seems to maintain in paragraph 47 of the judgment under appeal, there is no reason to regard the time limits laid down in those rules as merely indicative targets of good administration intended to promote the conduct of the procedure within a reasonable period of time. (42) 71. However, it follows from settled case-law that even the infringement of a binding time limit does not in itself justify in every case the annulment of the measure adopted as a result of the procedure at issue. (43) In those circumstances, the General Court was fully entitled, in paragraph 47 of the judgment under appeal, to start from the premiss that the consequences of non-compliance with a time limit can be assessed only on the basis of the particular circumstances of the case. 72. In that regard, it should be noted that the policy on dignity at work makes the various stages of the investigation procedure subject to very short time limits, sometimes as few as five working days. Given the potentially serious impact of the investigation on relationships within the team and the exposed position of the complainant, as well as the interests of the person accused of harassment in clearing himself of any accusations against him as quickly as possible, those time limits are intended to avoid any prolongation of a situation of uncertainty. It follows that the purpose of the time limits governing the investigation procedure is not merely to determine the time frame for that procedure but is rather to protect the interests of the persons concerned. 73. That purpose does not, however, justify annulment of a decision taken out of time. On the contrary, annulment of the decision for the simple reason that it was taken out of time would actually perpetuate the state of uncertainty which the time limits are intended to avoid. 74. In any event, it also follows from settled case-law that failure to comply with a time limit may give rise to a right to compensation. In that context, the EU judicature must make an overall assessment of the situation in question in order to determine whether the duration of the procedure was unreasonable. (44) In the present case, it is clear that, in examining whether the notification of the hearing and the communication of the decision of the President of the EIB had taken place within a reasonable time in view of the circumstances in question, the General Court correctly applied that case-law. In particular, it took into consideration, first, as regards the time limit for opening the investigation, the fact that the appellant had been informed on several occasions of the then current state of her complaint (paragraph 36 of the judgment under appeal) and, secondly, as regards the time limit for communication of the decision of the President, the fact that the subject matter of the investigation had changed in the course of the procedure, which necessitated the gathering of additional information (paragraphs 48 and 49 of the judgment under appeal). 75. Leaving aside those findings, the General Court’s conclusion that the time between the filing of the complaint on 20 May 2015 and the decision of the President of 16 October 2015 was not unreasonably long falls within the exercise of its exclusive jurisdiction to assess the facts. That conclusion cannot therefore be called into question at the appeal stage. 76. It follows that it is necessary to reject the appellant’s argument that the failure to comply with the time limits laid down in the investigation procedure should have led to the annulment of the decision of the President of the EIB and a finding that the EIB was non-contractually liable. (b) The second and third grounds of appeal, alleging an erroneous assessment of the legality of certain justifications in the Investigation Panel’s report in the light of Article 7 of the Charter and Article 8 of the ECHR 77. By her second and third grounds of appeal, the appellant essentially complains that the General Court failed to rule that it was unlawful for the President of the EIB to base his decision on witness statements made by persons without relevant qualifications, which described the appellant as a person with psychological problems who had experienced a difficult break-up with her former partner, following which she had lost a lot of weight, and who had difficulty in accepting any form of criticism and was manipulative in nature, and which suggested that her complaint was motivated by reasons other than the sexual harassment that she allegedly suffered. 78. In that context, the appellant also complains that the General Court erred in its reasoning, in that it contradicted itself by holding, in paragraph 76 of the judgment under appeal, that, despite the fact that the reference to those elements was ‘both superfluous and regrettable’, it did not constitute unlawful conduct which could be imputed to the EIB. 79. In rejecting the appellant’s arguments, the General Court relied, in paragraph 71 of the judgment under appeal, on the fact that the Investigation Panel and the President themselves made no statements concerning the appellant’s private life or psychological health, but merely reproduced the witness statements on that subject. The General Court seems to conclude from this that those remarks could thus not be imputed to the EIB. 80. However, in paragraph 71 and paragraph 81 of the judgment under appeal, the General Court pointed out that the panel had indeed relied on those statements to justify its recommendation to reject the complaint. In that context, it should be noted that that recommendation called into question the appellant’s credibility as a person rather than the credibility of her allegations. Accordingly, the assessment of the appellant’s personality allegedly made by the witnesses was used by the Investigation Panel as the very basis of the rejection of the complaint. However, it is not permissible for the panel and subsequently the President of the EIB to base their decision adversely affecting the appellant on an assessment which they have not endorsed. Indeed, it is the specific task of the Investigation Panel to establish the facts justifying the final decision. At the hearing, it was stated in that regard that it is not for the President of the EIB to carry out additional factual checks. In those circumstances, the General Court should have concluded that the observations concerning the appellant’s personality and conduct in the Investigation Panel’s report could be attributed to the EIB. Conversely, if the General Court had concluded that the panel merely reproduced, but did not adopt, the assessments contained in the witness statements, the General Court would then have had to conclude that the President had failed to state adequate reasons in his decision, which was based on nothing other than the panel’s report and the witness statements reproduced therein. The General Court’s reasoning concerning whether or not the assessments contained in the witness statements may be attributed to the EIB is therefore vitiated by an error of law. 81. Moreover, the General Court rejected the appellant’s arguments intended to demonstrate an infringement of Article 7 of the Charter, holding, in paragraphs 74 and 75 of the judgment under appeal, that the Investigation Panel’s report and the decision of the President of the EIB were not distributed and that the elements in that report ultimately had no effect, in particular in terms of disciplinary proceedings, on the appellant’s professional situation. 82. As regards the latter of those two arguments, the fact that the assessment of the appellant’s conduct and personality did not result in disciplinary proceedings is irrelevant to the examination of whether the statements thus made constitute an infringement of Article 7 of the Charter or even Article 8 of the ECHR. 83. Accordingly, it remains to be determined whether the General Court was correct to conclude that an infringement of Article 7 of the Charter could be ruled out, since the report was disclosed only to the person accused of harassment and the President of the EIB. 84. In that regard, it should be noted, first of all, that the Civil Service Tribunal has held, in a case concerning an investigation for psychological harassment, that the disclosure, albeit only to the persons accused of harassment, of information likely to give rise to negative rumours about an applicant and to undermine her reputation and her credibility was sufficient to support the conclusion that there had been unlawful conduct conferring a right to compensation. (45) 85. However, in a case in which the Commission rejected an application for promotion in a decision accompanied by offensive comments, the Court also took into consideration the aggravating fact that the document in question had been disseminated throughout the division. (46) 86. According to the case-law of the European Court of Human Rights (‘the ECtHR), the question whether a comment deemed offensive or likely to discredit the person concerned has been disseminated may certainly be taken into consideration in order to establish an infringement of the right to privacy under Article 8 of the ECHR, which includes respect not only for a person’s reputation but also for his honour. (47) Moreover, the ECtHR has repeatedly held that psychological integrity also falls within the scope of the right to privacy enshrined in Article 8 of the ECHR. (48) However, in order to establish an infringement of Article 8 of the ECHR, both the gravity of the statement (49) and its purpose, (50) as well as any justifications, must also be taken into account. It follows that an infringement of Article 8 of the ECHR cannot be assessed by examining only the question whether the remarks were disseminated. 87. However, the General Court did not carry out an assessment of the gravity of the comments and their effect on the appellant’s psychological integrity, as she had attempted to do by means of medical certificates. Nor did it examine whether the statements could reasonably and objectively contribute to an assessment of whether or not the complaint was malicious. Finally, as regards possible justification, the General Court should have examined whether the investigation concerning aspects of the appellant’s private life and the references to them in the Investigation Panel’s report and in the decision of the President of the EIB were relevant in the light of the purpose of the investigation, that is to say establishing whether or not the acts alleged against the person accused of harassment took place. 88. It follows from all the foregoing considerations that the General Court’s reasoning that any infringement of Article 7 of the Charter and Article 8 of the ECHR can be ruled out solely based on the absence of disciplinary consequences arising from the observations concerning the appellant’s personality and conduct and on the non-disclosure of the report within her unit is vitiated by errors of law. 2. The consequences of the finding that the first part of the first ground of appeal and the second ground of appeal are well founded 89. The well-founded nature of the first part of the first ground of appeal, concerning the scope of the appellant’s procedural rights, in itself justifies the setting aside of the judgment under appeal. It is indeed by relying on the incorrect premiss that the procedural rights to be conferred on the appellant were in principle less extensive than those of the person accused of harassment that the General Court rejected the appellant’s arguments seeking to demonstrate the existence of irregularities in the conduct of the investigation procedure. In so far as the rejection of the claim for annulment and the claim for compensation was based entirely on the absence of any unlawful conduct in that procedure, the judgment under appeal must therefore be set aside. 90. Accordingly, there is no need to examine whether the well-founded nature of the second ground of appeal, concerning errors of law made by the General Court in assessing whether there was an infringement of Article 7 of the Charter, also justifies the setting aside of the judgment under appeal. Following the setting aside of the judgment under appeal, however, those considerations remain relevant for the purpose of assessing the claim for compensation relied on at first instance. 3. The action before the General Court 91. Pursuant to the first paragraph of Article 61 of the Statute of the Court of Justice, if the judgment of the General Court is set aside, the Court of Justice may give final judgment in the matter where the state of the proceedings so permits. 92. That is the position in the present case as regards the annulment of the decision of the President of the EIB sought by the appellant at first instance, since a correct interpretation of the scope of the appellant’s procedural rights by the General Court should have led to the annulment of the decision of the President of the EIB. 93. It is true that, according to settled case-law, an infringement of procedural rights, in particular of the right to be heard, justifies the annulment of a decision adopted at the end of a procedure only if, had it not been for such an irregularity, the outcome of that procedure might have been different. (51) This does not apply, in particular, where the administration has no discretion as to the decision to be taken at the end of the procedure. 94. However, in the present case, it cannot be ruled out that the decision of the President of the EIB might have been different if the appellant had had the right either to challenge the statements of the person accused of harassment and the witness statements or to adduce new evidence in support of her complaint. That is all the more true since the subject matter of the investigation had changed from the time when the appellant had filed the complaint and thus became focused on the appellant’s conduct and her personality, matters in relation to which the appellant had not yet had the opportunity to make observations. 95. It is therefore appropriate to grant the application for annulment submitted at first instance and to annul the decision of the President of the EIB rejecting the appellant’s complaint. Moreover, if the Court adopts this proposal and annuls the decision, it will be for the EIB to take the necessary measures to comply with the judgment annulling the decision. 96. However, the state of the proceedings does not permit judgment to be given in relation to the claim for compensation. (52) 97. It follows from the considerations set out in the context of the second ground of appeal (53) that the General Court must again assess the argument alleging an infringement of Article 7 of the Charter, taking into account the gravity and purpose of the comments contained in the panel’s report and their possible justification. Moreover, the question whether it is possible to justify holding the EIB non-contractually liable having regard to the damage which the appellant claims to have suffered and to its link with the unlawful acts relied on has not yet been considered by the General Court. 98. It follows that it is necessary to refer the case back to the General Court for a decision on the claim for compensation. C. Costs 99. Since the case is being referred back to the General Court, it is appropriate to reserve the costs. VI. Conclusion 100. In the light of the foregoing considerations, I propose that the Court should: (1) Set aside the judgment of the General Court of the European Union (Sixth Chamber) of 13 July 2017, OZ v EIB (T‑607/16); (2) Annul the decision of the President of the EIB of 16 October 2015 rejecting the appellant’s complaint of sexual harassment under the policy on dignity at work of the EIB; (3) Refer the case back to the General Court for a decision on the claim for compensation; (4) Reserve the costs. 1 Original language: French. 2 See, inter alia, judgments of the Civil Service Tribunal of 16 May 2012, Skareby v Commission (F‑42/10, EU:F:2012:64, paragraphs 46 to 48), of 23 October 2013, BQ v Court of Auditors (F‑39/12, EU:F:2013:158, paragraph 72) and of 16 December 2015, De Loecker v EEAS (F‑34/15, EU:F:2015:153, paragraph 43), and the judgment of the General Court of 23 September 2015, Cerafogli v ECB (T‑114/13 P, EU:T:2015:678, paragraph 40). 3 OJ 2013, L 287, p. 15. 4 Unless I am mistaken, that document, produced by the EIB in French at the request of the Registry of the Court, has not been published and is accessible only internally. 5 Judgment of the General Court of 13 July 2017, OZ v EIB (T‑607/16, not published, EU:T:2017:495). 6 Concerning the jurisdiction of the Court to raise of its own motion the inadmissibility of the action before the General Court for the first time at the appeal stage, see the judgment of the Court of 23 April 2009, Sahlstedt and Others v Commission (C‑362/06 P, EU:C:2009:243, paragraph 22). 7 That time limit was added to the Staff Regulations of the EIB following the judgment of 28 February 2013, Review of Arango Jaramillo and Others v EIB (C‑334/12 RX-II, EU:C:2013:134). However, the General Court considers that that new version applies only where the staff member was recruited after 2013; see, for example, judgment of 4 October 2018, PD v EIB (T‑615/16, not published, EU:T:2018:642, paragraph 48). In any event, it is clear from the above-cited judgment of the Court concerning the situation before 2013 that even an action brought outside the three-month period against an act attributable to the EIB cannot, from the outset, be regarded as not having been brought within a reasonable period. 8 See, to that effect, the View of Advocate General Mengozzi in the Review of Arango Jaramillo and Others v EIB (C‑334/12 RX-II, EU:C:2012:733, point 51), and the judgment of the General Court of 6 March 2001, Dunnett and Others v EIB (T‑192/99, EU:T:2001:72, paragraph 56), as well as the judgment of the Civil Service Tribunal of 10 July 2014, CG v EIB (F‑95/11 and F‑36/12, EU:F:2014:188, paragraph 80). 9 Before the amendment of the Staff Regulations of the EIB in 2013 as a result of the judgment of 28 February 2013, Review of Arango Jaramillo and Others v EIB (C‑334/12 RX-II, EU:C:2013:134), the use of the conciliation procedure was not mandatory. 10 See, to that effect, order of 19 June 2014, Cartoon Network v OHIM (C‑670/13 P, not published, EU:C:2014:2024, paragraphs 42 to 46), and judgment of 7 November 2013, Wam Industriale v Commission (C‑560/12 P, not published, EU:C:2013:726, paragraph 44). That interpretation of Article 169(2) of the Rules of Procedure is also confirmed by the wording of the provision in language versions other than the French version, including the German, English and Polish language versions. 11 See judgment of 26 October 2006, Koninklijke Coöperatie Cosun v Commission (C‑68/05 P, EU:C:2006:674, paragraph 54) and, in particular with regard to assessment of the conduct of an administrative procedure, my Opinion in Wunenburger v Commission (C‑362/05 P, EU:C:2007:104, point 77) and the judgment of 7 June 2007 in that case, Wunenburger v Commission (C‑362/05 P, EU:C:2007:322, paragraph 92). 12 Judgment of 23 April 2002, Campogrande v Commission (C‑62/01 P, EU:C:2002:248, paragraph 43). 13 Article 113(1) of the Rules of Procedure of the Court provides that, in an appeal, the form of order sought by the appellant is to seek to set aside, in whole or in part, the judgment of the General Court and, as the case may be, to seek the same form of order, in whole or in part, as that sought at first instance, see judgment of 9 September 2008, FIAMM and Others v Council and Commission (C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 205). 14 Judgment of the Civil Service Tribunal of 16 December 2015, De Loecker v EEAS (F‑34/15, EU:F:2015:153, paragraph 43). 15 Judgment of the General Court of 23 September 2015, Cerafogli v ECB (T‑114/13 P, EU:T:2015:678, paragraph 40). 16 Judgments of the Civil Service Tribunal of 16 May 2012, Skareby v Commission (F‑42/10, EU:F:2012:64, paragraph 46); of 23 October 2013, BQ v Court of Auditors (F‑39/12, EU:F:2013:158, paragraph 72); of 10 July 2014, CG v EIB (F‑103/11, EU:F:2014:185, paragraph 148), and judgment of the General Court of 29 June 2018, HF v Parliament (T‑218/17, EU:T:2018:393, paragraphs 68 and 71 to 72). That intervention may take the form of disciplinary proceedings against the alleged harasser but also the form of a distancing measure, see judgment of the Civil Service Tribunal of 9 December 2008, Q v Commission (F‑52/05, EU:F:2008:161, paragraphs 207 to 213). 17 Judgment of the Civil Service Tribunal of 16 December 2015, De Loecker v EEAS (F‑34/15, EU:F:2015:153, paragraph 41). 18 The General Court recently emphasised the difference as regards terminology, namely a ‘complaint’ provided for by the rules applicable to the staff of the ECB (which are similar in that regard to those of the EIB) and a ‘request for assistance’ pursuant to the Staff Regulations, in the judgment of the General Court of 29 June 2018, HF v Parliament (T‑218/17, EU:T:2018:393, paragraphs 77 and 78). 19 Judgment of the General Court of 29 June 2018, HF v Parliament (T‑218/17, EU:T:2018:393). 20 Judgment of the General Court of 29 June 2018, HF v Parliament (T‑218/17, EU:T:2018:393, paragraphs 69 and 70). 21 Judgment of the General Court of 29 June 2018, HF v Parliament (T‑218/17, EU:T:2018:393, paragraphs 71 and 72). 22 The similarities between disciplinary proceedings and criminal proceedings were discussed by Advocate General Roemer in his Opinion in Van Eick v Commission (35/67, not published, EU:C:1968:32, p. 510), and in the Opinion of Advocate General Alber in Tzoanos v Commission (C‑191/98 P, EU:C:1999:127, point 27). 23 Judgments of 9 November 2006, Commission v De Bry (C‑344/05 P, EU:C:2006:710, paragraph 37), and of 14 June 2016, Marchiani v Parliament (C‑566/14 P, EU:C:2016:437, paragraph 51). A decision terminating a period of secondment cannot be regarded as a procedure brought against the person concerned for the purposes of that case-law, see judgment of 29 April 2004, Parliament v Reynolds (C‑111/02 P, EU:C:2004:265, paragraph 57). Disciplinary proceedings must, however, be regarded as being brought against the person concerned for the purposes of that case-law, which justifies the applicability of the rights of defence as provided for by Annex IX to the Staff Regulations. 24 Judgment of the General Court of 29 June 2018, HF v Parliament (T‑218/17, EU:T:2018:393, paragraph 66), adopting the solution put forward in the judgments of the Civil Service Tribunal of 16 May 2012, Skareby v Commission (F‑42/10, EU:F:2012:64, paragraphs 46 to 48); of 6 October 2015, CH v Parliament (F‑132/14, EU:F:2015:115, paragraph 57), and of 23 October 2013, BQ v Court of Auditors (F‑39/12, EU:F:2013:158, paragraph 72). 25 Judgment of the General Court of 29 June 2018, HF v Parliament (T‑218/17, EU:T:2018:393, paragraph 69). 26 See judgments of 2 December 2009, Commission v Ireland and Others (C‑89/08 P, EU:C:2009:742, paragraph 50); of 9 March 2010, ERG and Others (C‑379/08 and C‑380/08, EU:C:2010:127, paragraph 54) and, in relation to the civil service, judgments of 6 October 1982, Alvarez v Parliament (206/81, EU:C:1982:333, paragraph 6) and of 17 November 1983, Tréfois v Court of Justice (290/82, EU:C:1983:334, paragraph 19). As regards, in particular, the rejection of a complaint of sexual harassment, see judgment of the General Court of 23 September 2015, Cerafogli v ECB (T‑114/13 P, EU:T:2015:678, paragraphs 35 and 41). 27 To the extent that the appellant complains, in essence, that the General Court infringed her right to be heard and the adversarial principle, principles which are also enshrined in Article 41 of the Charter, it is irrelevant to the outcome of this dispute that she formally connects those principles to Article 47 of the Charter and Article 6 of the ECHR. 28 Judgment of the General Court of 29 June 2018, HF v Parliament (T‑218/17, EU:T:2018:393, paragraph 73). 29 See, to that effect, judgment of 9 November 2006, Commission v De Bry (C‑344/05 P, EU:C:2006:710, paragraphs 37 and 38). 30 Judgments of 24 October 1996, Commission v Lisrestal and Others (C‑32/95 P, EU:C:1996:402, paragraph 21); of 22 October 2013, Sabou (C‑276/12, EU:C:2013:678, paragraph 38), and of 14 June 2016, Marchiani v Parliament (C‑566/14 P, EU:C:2016:437, paragraph 51), and judgments of the General Court of 23 September 2015, Cerafogli v ECB (T‑114/13 P, EU:T:2015:678, paragraph 34), and of 29 June 2018, HF v Parliament (T‑218/17, EU:T:2018:393, paragraphs 69 and 74). 31 Judgments of the General Court of 8 December 2005, Reynolds v Parliament (T‑237/00, EU:T:2005:437, paragraph 101) and of 8 March 2005, Vlachaki v Commission (T‑277/03, EU:T:2005:83, paragraph 64), and judgment of the Court of 20 December 2017, Prequ’Italia (C‑276/16, EU:C:2017:1010, paragraph 46). On the scope of the right effectively to make known one’s views, see the Opinion of Advocate General Poiares Maduro in Commission v De Bry (C‑344/05 P, EU:C:2006:483, point 44 et seq.). 32 This was also required by the General Court in its judgment of 23 September 2015, Cerafogli v ECB (T‑114/13 P, EU:T:2015:678, paragraph 50), and by the Civil Service Tribunal in the judgment of 23 October 2013, BQ v Court of Auditors (F‑39/12, EU:F:2013:158, paragraphs 73 and 74). In the judgment of 29 June 2018 in HF v Parliament (T‑218/17, EU:T:2018:393), the General Court even ruled that it was insufficient for the administration to have heard the applicant in relation to the reasons justifying the rejection of the request without having given her access to the report of the Advisory Committee. 33 See also, to that effect, judgment of the General Court of 29 June 2018, HF v Parliament (T‑218/17, EU:T:2018:393, paragraph 69). 34 See paragraph 54 of the judgment under appeal. 35 See judgments of the Civil Service Tribunal of 23 October 2013, BQ v Court of Auditors (F‑39/12, EU:F:2013:158, paragraph 72) and of 16 December 2015, De Loecker v EEAS (F‑34/15, EU:F:2015:153, paragraph 43); see now also judgment of the General Court of 29 June 2018, HF v Parliament (T‑218/17, EU:T:2018:393, paragraph 64). 36 Judgment of the General Court of 23 September 2015, Cerafogli v ECB (T‑114/13 P, EU:T:2015:678, paragraph 45). In that case, however, the appellant had had access to the draft report of the Investigation Panel summarising the witness statements. 37 Judgments of the Civil Service Tribunal of 13 December 2012, Donati v ECB (F‑63/09, EU:F:2012:193, paragraph 187) and of 10 July 2014, CG v EIB (F‑103/11, EU:F:2014:185, paragraph 157); see now also judgment of the General Court of 29 June 2018, HF v Parliament (T‑218/17, EU:T:2018:393, paragraphs 97 to 101). 38 Judgment of the Civil Service Tribunal of 13 December 2012, Donati v ECB (F‑63/09, EU:F:2012:193, paragraph 187). 39 Judgment of the Civil Service Tribunal of 11 July 2013, Tzirani v Commission (F‑46/11, EU:F:2013:115, paragraph 125). 40 Following that logic, the Court upheld a judgment in which the General Court ruled that it was appropriate for an Investigation Panel to refrain from calling witnesses who were not present for the whole or even part of the incident at issue, see order of 16 October 1997, Dimitriadis v Court of Auditors (C‑140/96 P, EU:C:1997:493, paragraph 38). 41 See also judgment of the Civil Service Tribunal of 11 November 2014, De Nicola v EIB (F‑52/11, EU:F:2014:243, paragraph 143). 42 See, to that effect, judgment of the General Court of 10 May 2005, Piro v Commission (T‑193/03, EU:T:2005:164, paragraph 78). 43 Judgment of 20 May 2010, Gogos v Commission (C‑583/08 P, EU:C:2010:287, paragraph 56). 44 Reasonableness must be assessed in the light of the circumstances of the case, see judgments of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraphs 229 to 235), and of 28 February 2013, Review of Arango Jaramillo and Others v EIB (C‑334/12 RX-II, EU:C:2013:134, paragraphs 28 and 29). 45 The Civil Service Tribunal did not expressly examine that unlawful conduct from the perspective of an infringement of Article 7 of the Charter but acknowledged that it had caused the applicant non-material damage, see judgment of 10 July 2014, CG v EIB (F‑103/11, EU:F:2014:185, paragraph 151). 46 See judgment of 7 February 1990, Culin v Commission (C‑343/87, EU:C:1990:49, paragraphs 27 to 29). 47 Judgments of the ECtHR of 29 June 2004, Chauvy and Others v. France (No 64915/01, CE:ECHR:2004:0629JUD006491501, paragraph 70), and of 15 November 2007, Pfeifer v. Austria (No 12556/03, CE:ECHR:2007:1115JUD001255603, paragraph 35). 48 Judgment of the ECtHR of 9 April 2009, A. v. Norway (No 28070/06, CE:ECHR:2009:0409JUD002807006, paragraph 64). 49 The statement must be such as to undermine the right of the person concerned to respect for private life, see judgments of the ECtHR of 9 April 2009, A. v. Norway (No 28070/06, CE:ECHR:2009:0409JUD002807006, paragraph 64); of 10 July 2014, Axel Springer AG v. Germany (No 39954/08, CE:ECHR:2012:0207JUD003995408, paragraph 83), and of 16 July 2015, Delphi AS v. Estonia (No 64569/09, CE:ECHR:2015:0616JUD006456909, paragraph 137). 50 In a judgment of 4 October 2007, Sanchez Cardenas v. Norway (No 12148/03, CE:ECHR:2007:1004JUD001214803, paragraph 37), the ECtHR took into account the fact that the statement at issue, in that case made by a court in a judgment, served no purpose for the resolution of the dispute. 51 See, to that effect, judgments of 14 February 1990, France v Commission (C‑301/87, EU:C:1990:67, paragraph 31); of 1 October 2009, Foshan Shunde Yongjian Housewares & Hardware v Council (C‑141/08 P, EU:C:2009:598, paragraph 94); of 6 September 2012, Storck v OHIM (C‑96/11 P, EU:C:2012:537, paragraph 80); of 10 September 2013, G. and R. (C‑383/13 PPU, EU:C:2013:533, paragraph 38), and of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics (C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 79). 52 On the possibility for the Court to give final judgment on certain parts of the dispute and to refer the case back to the General Court as to the remainder, see judgment of 14 May 1998, Council v de Nil and Impens (C‑259/96 P, EU:C:1998:224). 53 See point 83 et seq. of this Opinion.