Information;Judgment — ECLI:EU:T:2022:171
Date: 2022-03-30
Language of the case: English
Court formation: First Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Action for damages - successful;Staff cases - successful;Action for damages - inadmissible

summary contained in the report of the events linked to the various requests made to the applicant instructing her to send work or documents to the EIB while she was on sick leave is confused. 99 It is apparent from the file that at least two separate requests were made to her for that purpose. 100 A first request was made by B. In that regard, it should nevertheless be noted that the Panel does not explain whether it adopted the terms that had been used to make that request or whether the terms set out in paragraph 96 above are merely a summary of the situation as reported to the Panel by the applicant herself. The applicant replied to that request by email of 7 August 2018 in order to send a ‘modified final report’ which was intended to incorporate comments made at a meeting. In that email, she stated that she had been asked to send that report. On the same day, she sent another email to B with the original version of that report, again stating that she had been asked to send it. B acknowledged receipt, also by email. 101 The second request was sent to the applicant by A. By email of 14 September 2018, A asked the applicant to send her as quickly as possibly the data from 2017 on which she had worked and the 2017 report sent with the data from 2016. The following day, the applicant informed the EIB, by email, that she was on sick leave and that it was therefore inappropriate to contact her regarding work-related matters. 102 In the light of the summary in paragraphs 100 and 101 above, it should be noted that, while it is apparent from that summary that two different requests were made to the applicant at two different times, the report does not indicate whether the Panel distinguished between those two requests or whether it considered them together or separately. Furthermore, the nature of the work requested from the applicant and the terms in which those requests were sent to her are also not analysed in the report. It is apparent from the report only that the Panel did not find B’s behaviour to constitute an act of harassment, without further explanation. A’s behaviour on that occasion was not analysed. 103 In the light of the lack of clarity just described, it must be found that the Panel did not establish the relevant facts sufficiently rigorously to reach the conclusion that the various requests sent to the applicant while she was on sick leave did not constitute harassment. – The isolation and sidelining of the applicant after her sick leave 104 The applicant’s line of argument under the present complaint is based, in essence, on three separate arguments. In the first place, she claims that she was deprived of her managerial functions as Head of Unit on her return to work in [confidential] 2019. She adds that, although the EIB knew that she was unhappy with this situation, it did nothing to find an acceptable solution. In the second place, she complains that she was not authorised to have contact with her team and claims that witnesses attested to this. She adds that she was ordered to move to another office and that the work she was assigned occupied only a very small amount of her time. In the third place and lastly, she claims that the Panel did not properly analyse the evidence she submitted. 105 The EIB contends that the Panel was emphatic in rejecting this part of the applicant’s arguments, even though it was particularly attentive to it. It states that the period concerned was particularly short and submits that the applicant’s disagreement with the interpretation of the facts at issue, and in particular with the fact that the decision to assign her an individual office was taken in her best interest, illustrates her behavioural difficulties. Whereas that decision was intended to help her to return to work in a calm environment and under a part-time working arrangement, the applicant saw it as a hostile act. In addition, the EIB contends that the applicant had accepted that decision after a discussion with B and that several witnesses explained the purpose of the temporary measures adopted. Furthermore, the EIB argues that the evidence demonstrates that the version defended by the applicant is not credible. Moreover, it disputes the argument that it ordered the applicant not to have contact with her former team and to move to another office. It also rejects the argument that the applicant was deprived of her managerial functions and states that, in any event, she resumed those functions in [confidential] 2019. In the rejoinder, the EIB states that the organisation of the service is for the EIB, not the applicant or her doctor. 106 In the report, the Panel stated that a meeting had been organised between a witness, the applicant and B, in order to make arrangements for the applicant’s return to work and that it was in that context that it was decided that the applicant would work in the [confidential] service rather than as Head of Unit of [confidential], in particular in order to avoid placing her under working conditions that were too stressful. However, the Panel noted that, despite that clear plan, the applicant started to organise meetings with her team on the very afternoon of her return and that B had to intervene to stop this. The Panel found that, since B had promptly communicated with the applicant and the measures adopted had been taken on the recommendation of the EIB’s medical staff, those measures could not be regarded as acts of harassment, but, on the contrary, constituted good management of the situation. As regards isolating the applicant, the Panel did not find any evidence that she had been placed in an isolated office in order to sideline her. It found that that decision had been taken on the recommendation of occupational health experts. 107 The Panel also stated that the decision to redefine the applicant’s duties temporarily was taken jointly by B and a witness, in particular following the advice of the EIB’s personnel and medical services to avoid placing the applicant in a stressful situation. As regards the temporary allocation of a new office, it found that that decision had also been taken by B, who stated that he was following the advice of occupational health experts. 108 As regards the applicant’s situation on her return to work in [confidential] 2019, she claims, first, that she was deprived of her functions as Head of Unit and, secondly, that the EIB did nothing to find an acceptable solution to the problem, despite her dissatisfaction. 109 It should be pointed out that, in the report, the Panel explains that, despite the reintegration plan put in place to facilitate the applicant’s return to work, consisting inter alia in the temporary alteration of her duties, the applicant organised meetings with her team in connection with her duties as Head of Unit of [confidential]. Thus, according to the Panel, B intervened ordering her to refrain from holding such meetings and to move to an individual office in order to ensure compliance with what had been agreed for the implementation of that reintegration plan. 110 In that regard, in the first place, it should be noted that the Panel’s statement that the measures adopted by the EIB on the applicant’s return to work were good staff management practices rather than harassment is incomplete. 111 More specifically, the Panel did not assess the veracity of the applicant’s claims that she was no longer allowed to communicate with members of [confidential], of which she was temporarily no longer the head, even though D’s testimony supported those claims. 112 In the second place, as regards the applicant being allocated a new individual office, first, it should be pointed out that the assertion in the report that that decision had been taken, in particular, in order to follow the advice of occupational health experts is disputed by the applicant and is not supported by any material in the file. Moreover, the Panel did not identify the information on which it relied in order to make that assertion. 113 Secondly, the parties disagree as to how the events which led to the applicant being allocated an individual office unfolded. Thus, the EIB contends that the issue of moving the applicant to an individual office had been raised during a discussion between B and the applicant and that at the end of that discussion she agreed to move. By contrast, the applicant states that that decision had been imposed on her and that she was not consulted. Without even addressing that issue, the report concludes that allocating the applicant an individual office could not be regarded as an act of harassment. 114 In the light of all of the foregoing, it must be held that the Panel, first, did not seek to establish the relevant facts sufficiently diligently and, secondly, favoured the version of the events in dispute submitted by the two persons against whom the complaint had been brought over the version submitted by the applicant, without any apparent reason. Consequently, it failed to comply with the requirements stemming from the principle of sound administration, as referred to in paragraphs 39 and 45 above. – B’s authoritarian behaviour 115 According to the applicant, a witness reported that, during her absence, B had publicly criticised her work. That witness, moreover, pointed out the nastiness of the words used in that regard. 116 The EIB submits that B cannot be regarded as having acted in an authoritarian manner when the alleged facts occurred in the applicant’s absence. It states that the Panel’s assessment that B might have spoken critically but that this did not make him authoritarian was correct and that the Panel had preferred the evidence showing that B was a diligent and respectful person, which cannot be considered a manifest error. 117 In the report, the Panel referred first to the evidence of D, who referred to B’s criticisms against the applicant made in her absence. Next, it stated, first, that another witness had described B as a diligent, polite and respectful professional and, secondly, that it had experienced this aspect of B’s personality. Lastly, the Panel considered that, even if D had heard B speak disparagingly of the applicant’s work, that did not make B authoritarian and that it could not be concluded that B had harassed the applicant. 118 The applicant’s complaint, as set out in the application, is based on D’s witness statement, which she had provided to the Panel. 119 In that witness statement, it is stated, inter alia, as follows: ‘During [KF]’s absence, [E] went almost every day into [B]’s office, which was next to mine at the time, to complain virulently and publicly about [KF]’s work and [B] agreed with the [so-called] shortcomings … [B] and [E] repeatedly and publicly (we were in an open space) blamed [KF] and her work, which shocked me as neither had the competence nor the knowledge necessary to attack her professionalism so violently. … the nastiness in [B] and [E]’s words shocked me [e]specially as [KF] wasn’t present to defend herself.’ 120 In the light of the foregoing, it must be held that, in the same way as for the witness statements referred to in paragraph 69 above, it is not apparent either from the report or from the explanations given by the EIB during the judicial proceedings that the Panel sought, in the light of the evidence adduced by the applicant, to establish whether the alleged public criticisms of her work had indeed been made and, if so, the precise terms that were used. Furthermore, and as found in paragraph 72 above, the Panel likewise failed to carry out any evaluation whatsoever of the witness statement provided by D. 121 Thus, the Panel merely referred to the allegations contained in the witness statement referred to in paragraph 118 above, without establishing either the veracity or the content of those allegations, and without making any assessment of that content. 122 The Panel nevertheless preferred the general assessments made in relation to B’s personality in other witness statements cited in the report over the applicant’s argument, which was based on direct witness evidence, that B repeatedly criticised her work in her absence. The indication that the Panel had found, during the hearing conducted as part of the administrative investigation, that B’s personality corresponded to the glowing testimonies referred to above does not in any way explain how such a finding could have any connection whatsoever with the incident reported by D. 123 Furthermore, it should be pointed that, while the applicant claims that B’s behaviour was authoritarian, the present complaint is rather that B made disparaging remarks about her in her absence, which formed part of the process of harassment which the applicant claims to have suffered. 124 In the light of the foregoing, it must be held that the Panel did not seek to establish the facts reported by D’s witness statement sufficiently diligently and that it therefore failed to comply with the requirements stemming from the principle of sound administration, as set out in paragraphs 39 and 45 above. The global assessment of the conduct of A and B 125 As is apparent from case-law and the relevant provisions of the Code of Conduct and the Dignity at Work Policy referred to in paragraphs 32 to 38 above, the existence of psychological harassment, first, entails that the acts complained of are repeated over a fairly long period and that they are analysed both in isolation and together. Secondly, it requires that those acts be capable of demeaning the self-esteem and self-confidence of the person at whom they were directed. 126 In addition, it has also been held that harassment may be committed, if not by an institution, at least by several persons, belonging to the same institution, who act in a coordinated manner or, at the very least, in the same way. It is, moreover, in that sense that Article 3.6.1 of the Code of Conduct provides that harassment may consist of hostile or tasteless remarks, attitudes or behaviour ‘by one or more members of staff’ of the EIB (judgment of 11 November 2014, De Nicola v EIB, F‑52/11, EU:F:2014:243, paragraph 182). 127 The Panel was therefore right to conduct a global assessment in the report of the various acts of A and B which the applicant alleged were such as to prove the existence of psychological harassment towards her. 128 Nevertheless, it follows from all of the foregoing that the Panel failed diligently to establish the facts in dispute and that it drew from them conclusions which they did not support. 129 Accordingly, the applicant’s third plea must be upheld and the contested decision must be annulled, without it being necessary to analyse the other pleas or to rule on the admissibility of the new plea raised at the hearing. The claim for damages 130 The applicant makes two claims for compensation, which it is appropriate to examine in turn. 131 As a preliminary point, it should be borne in mind that, in order for the administration to incur liability, a number of conditions must be satisfied as regards the unlawfulness of the conduct alleged against the institutions, the actual harm suffered and the existence of a causal link between the act and the damage alleged to have been suffered (judgment of 30 January 2020, BZ v Commission, T‑336/19, not published, EU:T:2020:21, paragraph 53). Compensation for non-material damage 132 The applicant claims that she suffered non-material damage as a result of repeated unfair treatment which caused her significant stress and desperation. She claims to have experienced a profound feeling of injustice and assesses that damage at EUR 10 000. At the hearing, the applicant stated that her claim was based on the manner in which the EIB had dealt with her complaint, and not on the psychological harassment of which she claims to have been the victim. 133 The EIB submits that, if the claim is to be interpreted as a claim for compensation for non-material damage resulting from the alleged harassment, it must be rejected because the conclusion that the applicant was not harassed is well founded. Furthermore, it submits that, if that claim is to be interpreted as seeking to remedy alleged wrongdoing on the part of the EIB, it is inadmissible, since the supposed fault has not been identified and no argument in support is offered. 134 As regards non-material damage, the annulment of an unlawful measure, such as the contested decision, constitutes in itself appropriate and, in principle, sufficient compensation for any non-material harm which that measure may have caused. That cannot, however, be the case where the applicant shows that he or she has sustained non-material damage that can be separated from the illegality on which the annulment is based and that cannot be compensated in full by that annulment (judgment of 30 January 2020, BZ v Commission, T‑336/19, not published, EU:T:2020:21, paragraph 54). 135 In the present case, it should be noted, as a preliminary point, that the applicant refers, as she stated at the hearing, to wrongdoing on the part of the EIB in the handling of her complaint, which she set out in her action. In that regard, it is apparent from that action that, as regards the handling of her complaint, first, the applicant claimed, in essence, that the Panel and the EIB failed to comply with their duties of sound administration and of care by failing to ensure that the facts were established sufficiently rigorously and by misinterpreting the definition of the concept of harassment. Secondly, she stated that the time taken to carry out the whole procedure relating to the handling of her complaint was excessive. 136 Taking into account the questionable way in which the complaint was investigated by the Panel, the annulment of the contested decision would not be capable of constituting, in itself, appropriate and sufficient compensation for the non-material damage suffered, resulting from the uncertainty and anxiety caused by the illegality of that decision (see, to that effect, judgment of 18 September 2012, Allgeier v FRA, F‑58/10, EU:F:2012:130, paragraph 85). 137 In the light of the foregoing, in the circumstances of the present case, the EIB must be ordered to pay the applicant damages assessed ex aequo et bono at EUR 3 000. Compensation for material damage 138 First, the applicant claims that her contract was renewed for a period of two years rather than converted into a contract of indefinite duration and that that decision formed part of A’s harassment towards her and was taken despite the request of her direct superior. In that regard, she contests any underperformance on which that decision was allegedly based and states that she never received any explanation for the decision. Secondly, the applicant submits that the decision of 14 April 2020 by which the EIB decided not to renew her contract is to be regarded as a continuation of the harassment of which she claims to have been the victim. Thus, she claims that her financial loss is the loss of remuneration from [confidential] 2020 until the date on which she would have reached pension age, being eight years after that date. She assesses that damage at approximately EUR 904 000. 139 The EIB disputes those arguments. 140 As regards, first, the applicant’s arguments that, according to her, her contract should have been converted into a contract of indefinite duration rather than extended for two years, the following should be noted. 141 In accordance with the principle of autonomy of remedies, a party may take action by means of a claim for compensation without being obliged by any provision of law to seek the annulment of the unlawful measure which causes him or her damage and, consequently, he or she may rely on the alleged illegality of the same measure if that measure has become final (see, to that effect, judgments of 7 October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph 61, and of 12 May 2016, Holistic Innovation Institute v Commission, T‑468/14, EU:T:2016:296, paragraph 46). 142 However, an exception has been made to the principle of autonomy of remedies where the action for damages is closely connected with the action for annulment. In that regard, the Court has held that, although a party may take action by means of a claim for compensation without being obliged by any provision of law to seek the annulment of the unlawful measure which caused him or her damage, he or she may not by those means circumvent the inadmissibility of an application which concerns the same instance of illegality and which has the same financial end in view (judgment of 28 May 1997, Burban v Parliament, T‑59/96, EU:T:1997:75, paragraph 26). 143 It follows that there is no autonomy between the actions where the action for damages is intended solely to compensate for damage resulting from the consequences of a decision, damage which would not have been suffered if, moreover, an action for annulment, brought in good time, had succeeded. A party who has failed to challenge the measures adversely affecting him or her by bringing an action for annulment in good time cannot make good that omission and, in a sense, procure further time for bringing proceedings by means of a claim for compensation (see, to that effect, judgment of 28 May 1997, Burban v Parliament, T‑59/96, EU:T:1997:75, paragraph 27). 144 Although the case-law referred to in paragraphs 142 and 143 above was developed in the context of actions under Article 270 TFEU and Articles 90 and 91 of the Staff Regulations, it is appropriate to apply that case-law, mutatis mutandis, to the present action in so far as it concerns an employment relationship between the applicant and a body of the European Union (see, to that effect, order of 17 December 2020, IM v EIB, T‑872/19, not published, EU:T:2020:634, paragraph 23). 145 It has previously been held in a case arising in similar circumstances to those of the present action that, if the applicant sought, by way of a claim for damages, to obtain a result which was identical to that which he or she would have obtained from the success of an action for annulment which the applicant failed to bring in good time, the action for damages had to be declared inadmissible (see, to that effect, order of 17 December 2020, IM v EIB, T‑872/19, not published, EU:T:2020:634, paragraph 24). 146 In the present case, the applicant seeks specifically to obtain compensation for the allegedly harmful consequences of the decision to extend her fixed-term contract rather than to convert it into a contract of indefinite duration, which she submits is unlawful and abusive, as is clear from paragraph 85 of the application. 147 Accordingly, the applicant’s argument that the decision of 1 November 2017 to extend her contract for two years was unlawful must be rejected as inadmissible. 148 As regards, in the second place, the argument based on the decision of 14 April 2020 not to extend the applicant’s contract, it must be held that, since that decision, which came after the contested decision, is separate from it, it cannot be regarded as demonstrating the material damage resulting from that decision. 149 The claim for compensation for the material damage allegedly suffered by the applicant must therefore be rejected. Costs 150 Under Article 134(3) of the Rules of Procedure, the parties are to bear their own costs where each party succeeds on some and fails on other heads. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing their own costs, pay a proportion of the costs of the other party. 151 In the present case, since the application for annulment of the contested decision has been upheld and the application for damages has been upheld in part, the Court decides, on an equitable assessment of the matter, that the EIB is to bear its own costs and to pay those incurred by the applicant. On those grounds, THE GENERAL COURT (First Chamber) hereby: 1. Annuls the decision of the President of the European Investment Bank (EIB) of 27 January 2020; 2. Orders the EIB to pay KF the amount of EUR 3 000; 3. Dismisses the action as to the remainder; 4. Orders the EIB to bear its own costs and to pay those incurred by KF. Kanninen Półtorak Stancu Delivered in open court in Luxembourg on 30 March 2022. E. Coulon H. Kanninen Registrar President * Language of the case: English. 1 Confidential data omitted.