Judgment — ECLI:EU:T:2017:495
Date: 2017-07-13
Language of the case: English
Court formation: Sixth Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Staff cases - inadmissible;Action for damages - unfounded;Application as to costs - inadmissible

summary of her complaint would be sent to Mr F, she was informed by telephone by a member of that directorate that that complaint would be sent to him in its entirety. However, since the applicant states that a staff representative intervened by email on 27 May 2015 in order to prevent such a mistake being made, no unlawful conduct can be imputed to the EIB in that regard. 42 Third, the applicant asserts that the complaint was not dealt with in strict confidence, in so far as witnesses were invited to attend the Investigation Panel via the electronic messaging software Microsoft Outlook without the privacy settings having been activated. 43 In that regard, while the applicant acknowledges, without criticising it, that such a practice is normal within the EIB in the course of the services’ daily activities, she seems, by contrast, to be criticising its being applied to the investigation procedure. However, the applicant, on the one hand, does not invoke any evidence capable of establishing that the messaging privacy settings were not activated in respect of the witness statements received by the Investigation Panel and, on the other, does not establish that that fact has led to her complaint being more widely disseminated than would have been necessary. That argument must therefore be set aside. 44 Fourth, the applicant claims to have received the decision of the President of the EIB 43 days after the Investigation Panel’s recommendation was sent to him and not within five working days as laid down by the policy on dignity at work. 45 In that regard, it is apparent from the final paragraph, headed ‘Decision by the President [of the EIB]’, of the policy on dignity at work that both parties must be informed in writing of the decision of the President of the EIB within five working days of the Investigation Panel’s recommendations being sent to him. 46 In the present case, it is apparent from the documents in the case-file that the Investigation Panel’s report, dated 14 September 2015, was sent to the President of the EIB on 17 September 2015 and that the applicant was made aware of his decision at a meeting with management on 27 October 2015. It is therefore clear that the applicant was informed of the decision of the President of the EIB after a much longer period than that laid down by the policy on dignity at work. 47 That said, it should also be noted that that provision of the policy on dignity at work sets out a rule of sound administration, the purpose of which is to avoid, in the interests both of the administrative authority and of staff, any unjustified delay by the President of the EIB in adopting the final decision terminating an investigation procedure. Accordingly, the EIB is under an obligation to conduct that procedure with due diligence and to ensure that each procedural measure is taken within a reasonable period following the previous measure. Failure to observe such a period, which can be assessed only in the light of the specific circumstances of the case, may result in the measure adopted after the expiry of the period prescribed being declared void (see, by analogy, judgment of 10 June 2004, François v Commission, T‑307/01, EU:T:2004:180, paragraph 47 and the case-law cited). 48 It should be borne in mind that, in the present case, the EIB management asked the Investigation Panel, by email of 22 September 2015, to clarify certain recommendations made in the latter’s report and in particular those made in the last paragraph. The EIB management was seeking to ascertain whether certain statements made in the Investigation Panel’s report meant that the applicant had acted maliciously since, in that event, the EIB would have been obliged to view the case from a disciplinary perspective. That clarification was therefore particularly important if the investigation procedure was to lead to any disciplinary proceedings. The Investigation Panel replied to that question by email of 25 September 2015 in which it stated that it could not rule out the possibility of the applicant’s having hoped, consciously or subconsciously, that her complaint might help her to account to her superiors for her numerous absences in recent years and her lower performance compared to previous years. The Investigation Panel added that it could not rule out the possibility that the applicant had secretly hoped that her complaint might secure her some kind of personal advantage. 49 It follows from all the foregoing that both the Investigation Panel’s report and the later statements made by that panel might leave room for some doubts as to the applicant’s real intentions and, accordingly, may explain the period of 1 month and 10 days between the sending of the Investigation Panel’s recommendations to the President of the EIB and the applicant’s being informed of the decision of the President of the EIB. Accordingly, in the specific circumstances of the present case, the applicant was informed in reasonable time. Therefore, no unlawful conduct can be imputed to the EIB in that regard. 50 In the second place, the applicant submits that the irregularities in the investigation procedure constitute infringements of Article 6 ECHR and Article 47 of the Charter of Fundamental Rights. 51 In that regard, the applicant asserts that her arguments were disclosed to Mr F, but that she did not receive either his statements or statements of witnesses. According to the applicant, that constitutes an infringement of the adversarial principle and the principle of equality of arms. She adds that certain persons she wished to call to give evidence before the Investigation Panel were, for various reasons, unable to do so, without her being given prior notice. She also claims that the Investigation Panel rejected all the medical reports and certificates which she had produced. Last, she submits that the members of the Investigation Panel had neither the independence nor the skills required by the policy on dignity at work. 52 First, regarding the submission alleging infringement of the adversarial principle and the principle of equality of arms, it must be made clear that the situation of a complainant in a complaint of psychological harassment cannot be equated with that of the person against whom the complaint has been made, and the procedural rights of the person accused of harassment are distinct from the more limited rights, in the administrative procedure, of an alleged victim of harassment. Nonetheless, the latter may rely, by virtue of the principle of sound administration, on the right to be heard regarding the facts concerning him or her, in so far as a decision refusing to act on a complaint of alleged harassment is liable to entail serious consequences, as psychological harassment can have extremely destructive effects on the victim’s state of health, and any recognition by the administrative authority of the existence of psychological harassment is, in itself, liable to have a beneficial effect in the harassed person’s therapeutic process of recovery (judgment of 16 December 2015, De Loecker v EEAS, F‑34/15, EU:F:2015:153, paragraph 43). Since the effects on the victim of sexual harassment and psychological harassment are comparable, those principles apply mutatis mutandis to cases of sexual harassment. 53 It must be stated that, in an administrative investigation procedure carried out following a complaint of harassment, the administrative authority is required to balance two rights which may be at odds with each other, namely the right of the person who is the subject of the complaint to exercise his or her rights of defence and the right of the complainant to have his or her complaint examined properly. That right of the complainant is reflected in the administrative authority’s duty of confidentiality, by virtue of which it must refrain from any step that could jeopardise the results of the administrative investigation (judgment of 13 December 2012, Donati v ECB, F‑63/09, EU:F:2012:193, paragraph 171). 54 In the present case, it is common ground that, as indeed the policy on dignity at work provides, the Investigation Panel heard the applicant, the witnesses called by her, Mr F, and then the witnesses called by him. It should be made clear in that regard that that policy does not provide for the disclosure to the complainant of statements of witnesses or of the person accused of harassment. Indeed, contrary to the applicant’s assertions, the administrative investigation procedure following a complaint of harassment is governed by specific considerations, recalled in paragraphs 52 and 53 above, which are not identical to those governing the conduct of a trial. That being the case, the Investigation Panel, which, moreover, complied with the rules regarding the conduct of hearings laid down by the policy on dignity at work, did not act unlawfully by not disclosing to the applicant the statements of Mr F and of various witnesses. 55 Second, regarding the submissions that, in the first place, the Investigation Panel, without giving her prior notice, did not hear all the individuals whom the applicant wished to call to give evidence and, in the second place, that panel rejected all the medical reports and certificates which she had produced, it should be borne in mind that the authority responsible for an administrative investigation, which is required to investigate the cases that are submitted to it in a proportionate manner, has broad discretion with regard to the conduct of the investigation and in particular with regard to assessing the quality and usefulness of the assistance provided by witnesses (see judgment of 11 June 2013, Tzirani v Commission, F‑46/11, EU:F:2013:115, paragraph 124 and the case-law cited). 56 Furthermore, the Investigation Panel was in no way required to invite all the witnesses proposed by the applicant in the course of the investigation (see, to that effect, judgment of 13 December 2012, Donati v ECB, F‑63/09, EU:F:2012:193, paragraph 187). 57 It follows from the foregoing that the fact that the Investigation Panel did not hear all the witnesses summoned by the applicant cannot render the investigation procedure unlawful. In addition, the Investigation Panel was not required to give prior notice to the applicant of that fact. Accordingly, the fact that the Investigation Panel did not give such notice to the applicant is also irrelevant. 58 Last, regarding the submission that the Investigation Panel rejected all the medical reports and certificates produced by the applicant, it should be observed that it is not apparent from the documents in the case-file that that panel did reject those documents, which were present in the investigation file. Furthermore, it should be noted that, while those documents could inform that panel as to the applicant’s state of health, they could not be used to determine whether harassment had taken place, as they were not drawn up by persons who had witnessed the acts at issue invoked by the applicant. Therefore, no unlawful conduct can be imputed to the EIB in that regard. 59 Third, the applicant submits that the members of the Investigation Panel, including its Chairman, had neither the independence nor the skills required by the policy on dignity at work. 60 In that regard, it is sufficient to note that the policy on dignity at work provides that each of the parties has the right to submit reasoned objections to the presence of a member of the Investigation Panel. That policy states that the first objection will be accepted without discussion and that the President of the EIB will rule on any subsequent objection. 61 In the present case, the applicant was informed of the composition of the Investigation Panel on 26 June 2015, but made no objection prior to the hearings which began on 20 July 2015. In any event, it is apparent from the policy on dignity at work that the Investigation Panel must consist, first, of one person who is familiar with the internal functioning of the EIB and, second, of two persons who have the necessary knowledge and experience in matters of bullying and harassment. In that regard, the fact that the Chairman of the Investigation Panel was known to be the lawyer designated by the EIB to provide legal advice to its staff is not sufficient ground for considering that he was not guaranteed to be independent. Also, assuming it were to be established, the fact that that Chairman did not specialise in cases of harassment is irrelevant since, as was required by the policy on dignity at work, he was familiar with the internal functioning of the EIB. In addition, the applicant does not adduce even prima facie evidence to establish that the other two members of the Investigation Panel did not have the necessary knowledge and experience in matters of bullying and harassment. In those circumstances, no unlawful conduct can be imputed to the EIB in that regard. 62 It follows from all the foregoing that the investigation procedure is not vitiated by irregularities, in particular, by any irregularity relating to a failure to respect the applicant’s right to a fair hearing, and that the EIB cannot be held to be liable in that regard. – Liability of the EIB as regards the inclusion of elements and comments in the Investigation Panel’s report and the decision of the President of the EIB 63 The applicant asserts that she has suffered non-material damage as a result of the inclusion in the Investigation Panel’s report of certain comments directly connected with her private life, her health, and her professional attitude. She submits that those harmful comments appear to be irrelevant, false, unnecessary and outside the scope of the policy on dignity at work. She also emphasises that the EIB had the opportunity, during the conciliation procedure provided for in Article 41 of its Staff Regulations, to delete certain elements from both that report and the decision of the President of the EIB, but that it did not take that opportunity. 64 The applicant therefore submits that, by including certain elements in the Investigation Panel’s report and the decision of its President, the EIB committed a wrongful act, thereby incurring liability, and that that wrongful act is the cause of her non-material damage. 65 It is necessary to examine whether the applicant establishes that, by its conduct, the EIB acted unlawfully for the purposes of the case-law cited in paragraph 31 above. 66 In the first place, it should be noted that, for the purposes of claiming that the inclusion of certain elements in the Investigation Panel’s report is unlawful, the applicant makes reference to the right to privacy enshrined in Article 8 ECHR and Article 7 of the Charter of Fundamental Rights, which is a rule of law intended to confer rights on individuals (see judgment of 24 September 2008, M v Ombudsman, T‑412/05, not published, EU:T:2008:397, paragraph 125 and the case-law cited). 67 In that regard, it should be borne in mind that the right to privacy as enshrined in Article 8 ECHR is also protected by Article 7 of the Charter of Fundamental Rights, to which Article 6 TEU accords the same legal value as that accorded to the Treaties. However, the right to privacy is not absolute. Restrictions may be imposed provided that those restrictions in fact correspond to objectives of general interest pursued by the European Union and do not, having regard to the aim pursued, constitute disproportionate and intolerable interference impairing the very substance of that right (see judgment of 24 September 2008, M v Ombudsman, T‑412/05, not published, EU:T:2008:397, paragraph 126 and the case-law cited). 68 In addition, it should be pointed out that, in the context of the policy on dignity at work, the role of the Investigation Panel is, in essence, to carry out an objective and independent investigation in respect of one or more incidents, leading to a recommendation being made to the President of the EIB. That panel may thus recommend that the case be dropped because the parties have been able to clarify the situation and a solution for the future has been found that is acceptable to both parties. The Investigation Panel may also consider that the case does not constitute bullying or harassment, but a dispute at work requiring more detailed examination or further monitoring. It may propose that the complaint be rejected, that appropriate measures be adopted if the complaint is unfounded or malicious, or, last, that disciplinary proceedings be initiated. The President of the EIB is to decide on the appropriate measures to be implemented. The Investigation Panel has broad discretion in the context of its recommendations, but has no decision‑making powers. 69 The applicant complains that the Investigation Panel included elements and comments in its report concerning her private life that were irrelevant to the present case. She asserts that such elements are also present, to a lesser extent, in the decision of the President of the EIB. Thus, the applicant notes that the Investigation Panel’s report mentions the fact that the witnesses agree that, following a sudden break-up with her partner in 2011, her health began to deteriorate. In addition, the applicant makes reference to passages from the Investigation Panel’s report indicating that all the persons who were heard by the Investigation Panel have unanimously expressed concerns in recent years regarding her health and that they have all noticed her dramatic weight loss. The applicant also notes that that report mentions the fact that the witnesses did not, at any time, notice any reaction on her part when in Mr F’s presence. The witnesses thus indicated that, in Mr F’s presence, she had not trembled, blushed, stiffened, appeared shocked or displayed any reaction whatsoever. Last, the applicant emphasises the reference made by the Investigation Panel’s report to manipulative conduct likely to give rise to serious problems in the lives of others. 70 The applicant submits that those facts are protected by the right to privacy which every person has, and must be deleted from the Investigation Panel’s report. She argues that any assertions or findings regarding her health could be made only by medical experts, following a medical examination and with her consent. She adds that the Investigation Panel’s report does not indicate that the comments on her state of health were made by medical professionals and does not refer to the six medical certificates which she had produced. In that regard, she states that those certificates contradict certain assertions made by witnesses, in particular those concerning her lack of reaction when confronted with the person whom she claims is the cause of her harassment. She also states that a certificate from her psychologist contradicts the assertions in the Investigation Panel’s report that her conduct was manipulative. Last, she states that, contrary to the witnesses’ assertions, she has a good relationship with her former partner. 71 In that regard, it should be noted that, as the EIB correctly emphasises, the various elements in the Investigation Panel’s report highlighted by the applicant as infringing her right to privacy are direct references to witness statements. In its report, the Investigation Panel set out statements made by witnesses before indicating the conclusions it had drawn from those statements and, consequently, setting out its recommendations for resolving the case. The references to those statements in that report make it possible to identify the elements on which the Investigation Panel relied when setting out its recommendations. 72 Moreover, contrary to the applicant’s submissions, the Investigation Panel did not come to any conclusions or make any assertions regarding her state of health, but confined itself to reproducing the witness statements from which it was apparent that the applicant had lost a great deal of weight in recent years. The Investigation Panel drew from this no conclusions of a medical nature. 73 Regarding the criticism relating to the fact that her doctors were not called as witnesses, it must be pointed out that those doctors, who had no knowledge of the dispute beyond what they had been told by the applicant, could not be considered witnesses to the events in question, as the EIB correctly notes. 74 In any event, it should be borne in mind that the Investigation Panel’s report is an internal document which is addressed only to the President of the EIB and the two parties concerned and is thus not intended for distribution. 75 Last, it follows from the Investigation Panel’s report that all the elements in that report, in particular those indicating a manipulative attitude on the part of the applicant, have had no effect, in particular in terms of disciplinary proceedings, on her professional situation. 76 That being the case, although the reference to certain elements in the Investigation Panel’s report may appear both superfluous and regrettable, it nonetheless is not unlawful for the purposes of the case-law cited in paragraph 31 above. 77 In the second place, the applicant submits that the EIB also acted unlawfully in including, in both the Investigation Panel’s report and the decision of its President, facts which were irrelevant and facts and recommendations falling outside the Investigation Panel’s sphere of competence. 78 First, the applicant complains that the Investigation Panel made reference to facts which were irrelevant, such as the fact that she had a complicated relationship with her then Head of Division, that she had difficulties accepting any form of criticism, that she was impatient to advance in her career and that the present case had developed in the context of her having become aware that the appraisal she would receive would be lower than the previous year. 79 Second, the applicant asserts that certain facts set out or certain recommendations made in the Investigation Panel’s report fell outside the scope of the investigation and the Investigation Panel’s sphere of competence in the context of the policy on dignity at work. According to the applicant, the Investigation Panel is only competent to make a reasoned recommendation to the President of the EIB, which must be strictly related to the subject matter of the complaint filed by the staff member concerned. The applicant concludes that, in the present case, the Investigation Panel should have confined itself to setting out recommendations connected with her allegations of sexual harassment. 80 It should be noted from the outset that, in her arguments, the applicant does not identify any rule of law which has been infringed by the Investigation Panel. Accordingly, the applicant does not establish that the EIB acted unlawfully. 81 In addition and in any event, it is clear that, as mentioned in paragraph 68 above, one of the powers of the Investigation Panel was to recommend that appropriate measures be taken if the complaint was unfounded or malicious. Accordingly, the Investigation Panel’s reliance on the statements of the witnesses who were heard in order to try to determine the background to the filing of the complaint and whether certain facts made the events set out in the complaint implausible was plainly within its sphere of competence. Accordingly, the reference to all those elements in the investigation report does not appear to be either irrelevant or outside the Investigation Panel’s sphere of competence. 82 It follows from all the foregoing that the inclusion in the Investigation Panel’s report and the decision of the President of the EIB of the elements mentioned above does not constitute unlawful conduct on the part of the EIB capable of giving rise to liability. 83 It follows from all the foregoing that the claim for compensation must be rejected. Claim for annulment 84 The applicant seeks annulment of, first, the decision of the President of the EIB and, second, the Investigation Panel’s report. 85 In that regard, it is apparent from the application that the unlawfulness attributed to those measures by the applicant is connected with the conduct of the EIB which she considers to be the cause of the damage to her. 86 However, it follows from paragraph 83 above that the claim for compensation has been rejected, as none of the EIB’s conduct as invoked by the applicant has been recognised as unlawful by the Court. Consequently, the claim for annulment must be rejected and, accordingly, the action must be dismissed in its entirety. Costs 87 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. Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the EIB. On those grounds, THE GENERAL COURT (Sixth Chamber) hereby: 1. Dismisses the action; 2. Orders OZ to pay the costs. Berardis Papasavvas Spineanu-Matei Delivered in open court in Luxembourg on 13 July 2017. E. Coulon S. Frimodt Nielsen Registrar President * Language of the case: English. 1 Confidential data redacted.