Judgment — ECLI:EU:F:2012:130
Date: 2012-09-18
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 of the law and to the description of the procedure. – The refusal to guarantee the anonymity of the witnesses 68 It should be noted at the outset that, before commencing the inquiry, the Director established, in cooperation with the investigator, the ‘Legal Framework of the Administrative Inquiry’. That framework, whose applicability to the parties is not contested, includes a heading entitled ‘Modalities related to the audition of witnesses’ which provided inter alia that ‘[w]itnesses [would] not be anonymous to any party of the case, unless special circumstances clearly indicate a need for anonymity’. 69 It is therefore necessary to examine whether, in the present case, special circumstances required the investigator to grant anonymity to the witnesses whom he interviewed and those whom he would have been likely to interview. 70 In the light of the special circumstances of the present case, the Tribunal must answer this question in the affirmative. 71 The investigator was himself fully conscious of the difficulty for members of staff of giving evidence if they did not receive a guarantee that their identities would not be communicated to the two persons accused of psychological harassment. Thus, in the final report, the investigator stated that ‘in a number of cases [he] observed that employees at the FRA – and in particular Staff from the Administration Department – have been reluctant or even unwilling to give testimony, because they feared retaliation afterwards’ and that, in particular, one of them, to whom anonymity had been refused, ‘had decided not to give testimony’. The investigator also pointed out that, while ‘other reluctant witnesses actually gave testimonies, [he had] the clear impression that they told considerably less than they could have told’ and that, consequently, ‘[he could not] disregard the possibility that the present investigation has not disclosed the full truth and that eventual later procedures would not be able to do it either’. Finally, in the conclusion of the final report, the investigator pointed out that, in view of the difficulties encountered in persuading staff to give evidence ‘the testimonies given have been limited’. 72 It should also be pointed out that the investigator, while highlighting those difficulties, stated that the inquiry had identified an ‘intense atmosphere of fear in the Administration Department, an atmosphere which has as consequence that the employees [did] not dare to express their views or [were] at any rate very reluctant to do [so]’. 73 While all the factors referred to by the investigator himself should have led him to guarantee the anonymity of the witnesses, illogically, he did not do so, despite a request to that effect by the applicant. 74 It is true that, in the final report, the investigator based his refusal to guarantee the anonymity of the witnesses suggested by the applicant on the fact that such protection would be illusory, since, from his point of view, the people implicated in the request for assistance were in a position to determine, with a high degree of probability, the origin of certain information. However, it has in no way been established that, if anonymity had been granted, the investigator would have been unable to provide the witnesses with adequate protection and, in particular, would have been unable to draw up the minutes of hearings in conditions that would prevent the identification of the persons concerned. 75 Moreover, it should be noted that, on 6 February 2009, the main member of staff implicated by the applicant, namely Mr M., sent to the Director, to whom he was, after all, subordinate, a note in which he stated to him that the ‘anonymity [of witnesses could] not be accepted under any circumstances’. Given the background described by the investigator himself, in particular the ‘intense atmosphere of fear in the Administration Department’, the existence of such a note and the terms of that note confirm that the anonymity of the witnesses was essential to enable the inquiry to be carried out under appropriate conditions. 76 In those circumstances, the Tribunal considers that the investigator’s refusal to guarantee the anonymity of the witnesses prevented him from carrying out a comprehensive examination of the facts of the present case and therefore that the inquiry was marred by irregularities. 77 Accordingly, and in so far as the Director relied on the final report in adopting the contested decision, as has been affirmed, that decision should be deemed to be vitiated by illegality. 78 As the first two pleas raised against the contested decision have been upheld, that decision must be annulled, without its being necessary to examine the other pleas in the application and, in particular, those alleging an error of law concerning the interpretation of the legal definition of psychological harassment and the existence of psychological harassment. Claim for compensation Arguments of the parties 79 The applicant claims that the FRA should be ordered to pay compensation in the sum of EUR 71 823.23 to make good the material damage he suffered as a result of the psychological harassment. 80 Furthermore, the applicant asks the Tribunal to order the FRA to pay him the sum of EUR 85 000, as compensation for non-material damage caused, firstly, by the psychological harassment suffered and, secondly, by the illegality of the contested decision, which refused to declare that there was harassment. 81 The FRA contends that the claim for damages should be rejected. Findings of the Tribunal 82 Firstly, concerning the claim that the FRA be ordered to pay compensation in respect of the material and non-material damage the applicant suffered as a result of the psychological harassment, it should be noted that the purpose of the second paragraph of Article 24 of the Staff Regulations is to provide compensation for damage caused to an official or member of staff by the actions of a third party or another official referred to in the first paragraph of the same article, provided that he has been unable to obtain compensation from the person who caused that damage (see order of 5 October 2006 in Case C-365/05 P Schmidt‑Brown v Commission, paragraph 78). The admissibility of an action for compensation brought by an official or member of staff under the second paragraph of Article 24 of the Staff Regulations is thus subject to the exhaustion of domestic legal remedies in so far as these provide effective protection for the individuals concerned and can result in reparation of the damage alleged (see judgment of 9 March 2005 in Case T-254/02 L v Commission [2005] ECR II-277, ECR‑SC I‑A‑63, paragraph 148; judgment of 12 July 2011 in Case T-80/09 P Commission v Q [2011] ECR I-0000, paragraph 67). 83 In the present case, it is not established or even alleged that in order to make good the damage resulting from the alleged psychological harassment suffered, the applicant had exhausted the domestic legal remedies or that those remedies would not have provided effective protection. It follows that the claim for compensation for that damage must be dismissed as inadmissible. 84 Secondly, concerning the claim that the FRA should be ordered to pay compensation for the non-material damage resulting from the illegality of the contested decision, it should be recalled that, according to settled case-law, the annulment of an unlawful measure may constitute, in itself, adequate and, in principle, sufficient compensation for all non-material damage which that measure may have caused (judgment of 9 July 1987 in Joined Cases 44/85, 77/85, 294/85 and 295/85 Hochbaum and Rawes v Commission, paragraph 22; judgment of 9 November 2004 in Case T-116/03 Montalto v Council, paragraph 127; judgment of 8 May 2008 in Case F‑6/07 Suvikas v Council, paragraph 151), unless the applicant demonstrates that he suffered non‑material damage separable from the unlawfulness justifying the annulment and incapable of being entirely remedied by that annulment (see, to that effect, judgment of 7 February 1990 in Case C‑343/87 Culin v Commission, paragraphs 27 and 28; judgment of 6 June 2006 in Case T-10/02 Girardot v Commission, paragraph 131). 85 In the present case, it is true that the contested decision contains no assessment of the applicant’s abilities or conduct likely to cause him harm. However, in the light of the questionable way in which the applicant’s request for assistance was treated and the inquiry conducted, the annulment of that decision would not be capable of constituting in itself adequate and sufficient compensation for all the non‑material damage caused by that decision, resulting from the uncertainty and anxiety caused by the illegality of the contested decision. Accordingly, the FRA must be ordered to pay the applicant the sum of EUR 5 000. Costs 86 Under the terms of Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Title 2, Chapter 8 of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that he or she is not to be ordered to pay any. 87 It follows from the grounds of this judgment that the FRA is the unsuccessful party in all essential respects. Furthermore, in his pleadings, the applicant has expressly applied for the FRA to pay the costs. Since the circumstances of this case do not warrant application of the provisions of Article 87(2) of the Rules of Procedure, the FRA must bear its own costs and be ordered to pay the costs incurred by the applicant. On those grounds, THE CIVIL SERVICE TRIBUNAL (First Chamber) hereby: 1. Annuls the decision of 16 October 2009 of the European Union Agency for Fundamental Rights; 2. Orders the European Union Agency for Fundamental Rights to pay Mr Allgeier the sum of EUR 5 000; 3. Dismisses the remainder of the application; 4. Orders the European Union Agency for Fundamental Rights to bear its own costs and to pay the costs incurred by Mr Allgeier. Kreppel Perillo Barents Delivered in open court in Luxembourg on 18 September 2012. W. Hakenberg H. Kreppel Registrar President * Language of the case: English.