Judgment — ECLI:EU:F:2012:184
Date: 2012-12-12
Language of the case: English
Court formation: Third 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 for measures of inquiry - unfounded

summary of the procedure followed before its adoption, the contested decision does not include any statement of reasons. However, it refers to the final inquiry report, which was to be served on the applicant on 30 November 2009 at the same time as that decision. It is settled case-law that the reasons given for a measure adversely affecting a person are sufficient if it was adopted in circumstances known to that person which enable him to understand the scope of the measure concerning him. Consequently, a statement of reasons in the form of a reference to a report or an opinion (judgment of 8 June 2011 in Case T-20/09 P Commission v Marcuccio, paragraphs 67 and 68; judgment of 23 November 2010 in Case F-65/09 Marcuccio v Commission, paragraph 61), which itself states reasons and is communicated, as the documents were to the applicant in the present case, may be accepted. 109 However, the applicant claims that the inquiry report itself does not contain a sufficient statement of reasons. 110 However, that complaint cannot succeed as the inquiry report is particularly full. 111 Moreover, as has just been explained, the statement of reasons must be assessed according to the context in which the contested measure was taken and, in particular, in the light of all the legal rules governing the matter concerned. 112 It was observed, in the examination of the first part of the first plea, that the legal context could, in a case of psychological harassment, preclude a complainant from having access to all the witness statements compiled during the inquiry. Consequently, it cannot be considered that the contested decision contains insufficient reasons in that it refers only to the inquiry report, which does not include those witness statements. 113 The second part of the first plea must therefore be rejected. The third part, alleging breach of Article 6(5) of Circular 1/2006 114 The applicant maintains wrongly that the failure to communicate to the Executive Board the minutes of the hearings drawn up during the course of the inquiry breached Article 6(5) of Circular 1/2006. That provision requires the communication of the inquiry report together with the whole file, including the minutes of hearings, only to the person conducting the inquiry, which was not the Executive Board, as is apparent from the letter sent by the ECB to the applicant on 30 May 2008 (paragraph 22 of the present judgment). 115 The third part of the first plea is therefore unfounded. The fourth part, alleging breach of Article 3(1) of the Rules of Procedure of the Executive Board 116 According to Article 3(1) of the Rules of Procedure of the Executive Board the documents related to the agenda are, ‘in principle’, to be sent, to the Executive Board at least two working days before the meeting of that body. It follows that that time-limit concerns only the period within which those documents must be sent to the members of the Executive Board and not the period for which they must be available to them. 117 In any event, in order for breaches of the obligations imposed by the Rules of Procedure of the Executive Board to be capable of constituting substantial irregularities of such a kind as to render its decision invalid, the person concerned must also show that in the absence of those irregularities that decision might have been substantively different (judgment of 9 March 1999 in Case T-212/97 Hubert v Commission, paragraph 53; judgment of 7 May 2008 in Case F-36/07 Lebedef v Commission, paragraph 57, and judgment of 13 September 2011 in Case F-68/10 Behnke v Commission, paragraph 42). Clearly, that condition is not satisfied in the present case, as the applicant confines herself to surmising that, as the members of the Executive Board received the final inquiry report on the day of their meeting, they were unable to take proper cognisance of it before deciding on the conclusions to be drawn from it. 118 The fourth part of the first plea is, accordingly, not founded and the first plea must therefore be rejected in its entirety. 2. The second plea, alleging breach by the panel of its mandate a) Arguments of the parties 119 The applicant observes that the subject of the inquiry was the conduct of certain of her hierarchical superiors. However, she alleges that the inquiry report concentrated on her and discredited her by recording negative information about her. On the other hand, it contained no finding regarding the conduct of the Director-General of which she complained in particular. 120 Moreover, the panel’s brief was, she alleges, to look into breaches of the ‘provisions of the Dignity at Work policy, in particular by DG Payments’. That question was not, however, tackled in the final inquiry report and the questions of psychological harassment, damage to dignity and discrimination within the ECB in general were examined only partially in the framework of the question relating to discrimination against the applicant because of her activities within the Staff Committee. What is more, the panel assessed the conduct of the Director-General only in connection with psychological harassment and not in connection with the note on the Dignity at Work policy. Furthermore, the panel confined itself solely to allegations of offensive behaviour, of rumours and threats, leaving out other important elements. 121 In addition, the panel merely verified whether there were rumours calling into question the reputation of the applicant without examining whether they were based on facts and evidence. Thus, in refusing to recognise that those rumours constituted a form of psychological harassment, the panel did not properly take account of the applicant’s interests. 122 The panel also breached its mandate in taking the view that it did not need to examine the allegations made against the ECB as an institution, or the question of the quality of the work done by the applicant and the medical documents. In particular, the panel, wrongly, took the view that it had no authority to assess the quality of the work done by the applicant, whereas it could have requested the assistance of experts on that point. 123 Finally, the panel did not investigate the breach by a member of the staff of the ECB of the confidentiality of a letter from the applicant’s counsel of 18 January 2008, addressed to that member of staff, which he disclosed to the Director-General. The inquiry report confined itself to observing that that member of staff had forwarded that letter in his capacity as the ‘competent senior manager’. 124 The ECB rejects the applicant’s arguments. b) Findings of the Tribunal 125 As is apparent from the letter sent by the ECB to the applicant on 30 May 2008 (see paragraph 22 of the present judgment), the panel’s mandate was to clarify the facts and establish whether or not there was sufficient evidence of the allegations relating to: – ‘discrimination … on the grounds of gender, age, nationality and health conditions’ which she allegedly suffered; – ‘discrimination related to … her Staff Committee membership’; and – her allegations relating to ‘a breach of the Dignity at Work policy, in particular by the management’, including ‘defamation, isolation, mobbing and intimidation’. 126 It appears from the inquiry report that the panel examined questions relating to possible discrimination: – on the ground of the applicant’s membership of the Staff Committee which was allegedly manifested in the appraisal of her work, in the determination of her salary and bonus payments and in her career opportunities; – on the ground of the applicant’s membership of the Staff Committee which was allegedly manifested by acts of harassment; – on the ground of her gender, her age and her nationality, and – on the ground of her state of health. 127 Although it was formally structured exclusively by reference to discrimination, it is none the less apparent from the content of the inquiry report, which is 61 pages long, that the panel in fact considered whether there was sufficient evidence, not only of discrimination, but also of acts of defamation, isolation, psychological harassment and intimidation, or of acts constituting a breach by DG Payments of the note on the Dignity at Work policy. The panel thus specifically reviewed all the questions mentioned in the mandate given to it. In particular, the panel verified the existence of unfavourable rumours about the applicant. 128 Moreover, the ECB rightly argues that an inquiry report does not discredit the complainant merely by recording objectively the statements of witnesses and reaching conclusions which do not confirm the complainant’s accusations. In addition, the mandate given to the panel required it to examine whether the applicant’s allegations against members of staff were well founded and not to assess her merits or her state of health. 129 Finally, as regards the alleged breach, by a member of staff of the ECB, of the confidentiality of the letter which the applicant’s counsel sent to her on 18 January 2008, the panel pointed out, in its inquiry report, that that letter was addressed to that member of staff in his capacity as Director-General of DG Human Resources, Budget and Organisation, that is to say, as a body of the ECB. That finding is sufficient in itself to allow the panel to see no evidence of harassment in the disclosure of the letter at issue to the Director-General. That is particularly true as that letter stated that the applicant was to ask the Director-General to withdraw the comments he had made about her. 130 The second plea must be dismissed. 3. The third plea, alleging a manifest error of assessment a) Preliminary observations 131 It must be recalled at the outset that an error is manifest where it is easily recognisable and can be readily detected, in the light of the criteria to which the legislature intended the exercise of a decision-making power to be subject (judgment of 29 September 2011 in Case F‑80/10 AJ v Commission, paragraph 34). Consequently, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of the contested decision, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the challenged assessment may be accepted as being still true or valid (AJ v Commission, paragraph 35). That is particularly so where the decision at issue is vitiated by errors which, taken together, are of only minor significance unlikely to have influenced the administration (see AJ v Commission, paragraph 36 and the case-law cited, and judgment of 28 March 2012 in Case F-36/11 BD v Commission, paragraph 83). 132 Furthermore, in support of this plea, the applicant refers several times to complaints or arguments appearing in an annex to her special appeal, also attached to the present action. As the ECB observes, such references are not admissible as, according to settled case-law, it is not for the Tribunal to look for the applicants’ arguments in the documents on their file. 133 Moreover, and as the ECB also points out, several of the applicant’s assertions are vague, confused, difficult to understand or even speculative. They are, therefore, not capable of providing evidence of a manifest error. That is the position with regard to: – the complaint that the panel did not inquire into the unequal treatment which the applicant allegedly suffered in the MIS Division, whereas the inquiry report is formally structured precisely by reference to alleged discrimination; – the arguments a contrario derived from the decision to entrust the applicant only with the drafting of the policy note on standards and the statements made by the Director-General to justify her ‘zero salary increase and the lack of a bonus for her work of 2007’; – the inferences which the applicant draws from a reference in the inquiry report to her ‘professional problems’ compared with her assessments; – the complaint that ‘it seem[ed] that’ the reason for the decision to relieve the applicant permanently of the standards file was that the policy note on standards had not been judged satisfactory by the Director-General despite the positive reactions to it. 134 Finally, it should be noted that the applicant sets out her arguments in support of the plea along two axes, namely, first, the incomplete nature of the inquiry report on which the contested decision was based, and, second, the manifest errors directly affecting the assessments contained in the inquiry report, the contested decision and the decision rejecting the special appeal. The Tribunal will accordingly examine the various complaints raised in the same order. b) The incomplete nature of the inquiry report 135 The applicant claims, first, that the inquiry report is incomplete in that the panel did not examine her complaint relating to the lack of proper support given to her in coping with her excessive workload. 136 It must be pointed out, in that connection, that this complaint, criticising a deficiency in the inquiry report, must be distinguished from what the Tribunal held in its judgment in Case F-84/08, which was that the ECB had not established that it had adjusted the workload of the applicant to take account of the dispensation from service she had obtained for staff representation duties. 137 That said, it is apparent from the inquiry report that the panel did in fact examine the complaint relating to lack of support given to the applicant in coping with her workload. That question was examined in connection with the applicant’s allegation that she was discriminated against precisely because of her membership of the Staff Committee and, in a wider sense, in the framework of the examination of the complaints of psychological harassment. The inquiry report points out in that regard that the assessments of the applicant make reference to her difficulties in balancing her work and her commitments in the Staff Committee, but does not find that that amounts to evidence of a lack of specific support. Moreover, the inquiry report mentions that the Director-General granted the applicant a dispensation from service exceeding what is normally allowed and agreed that the reduction in working time for medical reasons which she was allowed in March 2007 could be taken out of the time she had to spend in the MIS Division and not out of the time given to Staff Committee activities. The inquiry report also examines the question whether the applicant’s workload was actually reduced and mentions in that connection various examples of special arrangements she was allowed. Finally, the concessions made by the Director-General were also described in the inquiry report in connection with the assessment of possible discrimination against the applicant because of her state of health. 138 Second, the applicant maintains that the panel did not take account of the complaint which she raised that the Director-General took the standards file away from her from March 2007 and declared that she had to leave DG Payments, thus giving rise to uncertainty on her part as to her subsequent career. 139 However, the panel examined the question raised by that complaint. It thus found that the standards file was taken away from the applicant because of her limited availability for the work in the MIS Division and that it was taken away following her request that the reduction in working time granted to her for health reasons should not affect her tasks on the Staff Committee. The panel also examined the statements of the Director-General and took the view that it was established that he had suggested to the applicant that she change department. In the light of witness statements, the panel observed that that suggestion was made in the context of meetings specifically concerning the situation of the applicant which were conducted in a civilised and constructive atmosphere, despite a sometimes tense mood. The panel finally concluded that the facts at issue had not placed the applicant in an unacceptable position of uncertainty with regard to her professional future. 140 Third, the applicant claims that the criticism she made concerning her isolation within the department where she was placed was not covered. However, that criticism was clearly examined both in general terms and in relation to particular facts. 141 Fourth, the applicant claims that the inquiry report did not take account of the lack of any assessment at the appropriate time of her performance for 2007. While it is true that the panel did not conduct any specific analysis with regard to that state of affairs, it none the less did not ignore it in so far as it explained that it had taken account of the applicant’s assessment reports for the years 1999 to 2006, but not that for 2007, which had not been finalised because the Director-General had not drawn up that assessment at the end of December and the applicant was on sick leave from January 2008. 142 Fifth, the applicant points out that the panel did not take account of the fact that she was refused a salary increase in 2007 because of her allegedly unsatisfactory performance. 143 It must be observed in that regard that the applicant was complaining more generally of having been discriminated against in terms of salary for eight years, from 1998 to 2007. In response to that complaint, the panel found that the applicant had indeed not been granted any increase in 2007, but also pointed out that there was no indication that her participation in the Staff Committee had had a negative impact on her salary increases, since in 2001 she had received the maximum she could claim given her salary band. What is more, the panel pointed out that, under a clause connected with her status as a former member of staff of the IME and by way of derogation from the rules generally applicable to the majority of ECB employees, it had been possible for her salary to continue to rise beyond the maximum in a higher salary band than that corresponding to her administrative position, so that she was in a more favourable position than other members of staff of the ECB. 144 Sixth, the applicant submits that the panel did not investigate the comments of the Director-General regarding the fact that she received a very high salary compared with her colleagues. 145 However, the inquiry report does tackle that question and points out that those comments were made in the restricted context of a meeting on the situation of the applicant and in front of a limited number of witnesses who were expected to respect confidentiality. The inquiry report also pointed out that the Director-General’s comment was true, as the applicant had the highest salary among the senior experts in DG Payments. 146 Seventh, the applicant maintains that the inquiry report makes no reference to the specific rules of the ECB applicable in cases of harassment. 147 However, the inquiry report cites the provisions of the code of conduct and the note on the Dignity at Work policy. The inquiry report refers to them in the course of examining alleged discrimination on the basis of the applicant’s membership of the Staff Committee. In that connection the report points out that those provisions do not define the terms ‘mobbing’ and ‘psychological harassment’ which they use but that the concept of harassment is defined in Article 12a of the Staff Regulations. Finally, the inquiry report also refers to the above provisions in assessing the applicant’s allegations that the Director-General threatened her, made offensive remarks and spread rumours about her. 148 Eighth, the applicant claims that the inquiry report does not mention the contribution of the social counsellor of the ECB whose assistance she requested and obtained. 149 However, the inquiry report mentions the participation of the social counsellor of the ECB in meetings between the Director-General and the applicant on the subject of her situation and refers to the content of the witness statements of the participants in those meetings in the analysis of the matters arising in those meetings. 150 Ninth, the applicant alleges that her state of health was not taken into account by the panel in assessing the comments concerning her frequent absences and her lack of participation in meetings and in assessing the refusal of the Director-General to find an appropriate solution for her workload. 151 However, as the ECB observes, the panel’s mandate was not to assess the health of the applicant. It none the less examined the frequency of her absences on health grounds, the consequences that situation could have had on the tasks entrusted to her and the arrangements allowed as a result by the Director-General. In addition, the panel examined specifically whether the applicant had been subject to discrimination because of her state of health. 152 Tenth, the applicant complains that the panel did not comment on the inconsistency in the explanations of the Director-General with regard to the offensive remarks he allegedly made about her. 153 However, it must be observed that this alleged inconsistency was not considered by the panel because it did not find the remarks at issue offensive. The rejection of a complaint may be implied if the person concerned can, as in this case, infer the reasons for that rejection from the inquiry report. 154 Eleventh, the applicant criticises the panel for not inquiring into the Director-General’s refusal to assign a colleague to assist her. 155 However the panel did note that the possibility of recruiting staff in order to compensate for a dispensation from service was provided for by the provisions in force in the ECB. It also noted that the Director-General had taken the view that the assignment of a colleague to assist the applicant would not be welcomed by the applicant’s colleagues and, in the light of information provided by the head of the MIS Division, that they would have refused to work under her. 156 Twelfth, the applicant criticises the fact that the panel failed to seek information regarding the fact that the Director-General asked her to leave the Staff Committee following the reduction in her working time for health reasons. 157 However, the attitude of the Director-General to the applicant’s role on the Staff Committee was considered by the panel in so far as the inquiry report establishes on the basis of the witness statements it took that the Director-General did not dispute the applicant’s obligations towards that committee and that there was no indication of discrimination on that basis. The panel also took the view that there was not any indication either that the members of the staff of the ECB were, on the whole, discouraged from taking part in the Staff Committee. More specifically, the panel observed that, following the reduction in the applicant’s working time for health reasons for a provisional period, the Director-General had decided, at her request, that that time would not be taken from the time she was allowed to devote to the Staff Committee, an attitude which was hardly consistent with the wish, which the applicant ascribed to the Director-General, that she should leave the Staff Committee. Finally, the panel pointed out that during the meetings held with the applicant about her situation, the Director-General never made any negative comment about her activities on the Staff Committee. 158 Thirteenth, the applicant claims that the inquiry report contains nothing regarding the statements of the Director-General that her reputation was bad and that her performance was not commensurate with her status. 159 However, that point was examined and the report finds that it is established that those comments were made. The inquiry report points out, however, that those statements were not aggressive or negative, even if some of them could have been expressed differently. Moreover, the inquiry report finds that, although some of the applicant’s colleagues considered that she had a good reputation at work, the majority of them felt that she had a reputation for frequent absences, delays in delivering work and for being difficult to work with. Finally, the inquiry report tackles the more general question of whether ‘rumours’ about the applicant had been spread within the ECB. The panel thus found that, in the course of a meeting with the applicant, the Director-General had passed on information from the head of the MIS Division to the effect that his colleagues would not agree to work under her. The panel also observed that the comments of the Director-General regarding the salary of the applicant and her bad reputation at work, too, had been made only in the context of meetings concerning her situation. Ultimately, the panel considered that, in the light of the context in which they were made, the comments in question cannot be deemed to constitute the spreading of rumours. 160 Fourteenth, the applicant alleges other omissions. 161 In that regard, it is true that allegations concerning, inter alia, the salary of another member of staff, the refusal to allocate the applicant her own office and the disclosure of the fact that she received a bonus in 2006, were not covered in the inquiry report. However, the ECB rightly argues that those were insignificant submissions which the applicant does not persist with in her written pleadings. c) Manifest errors directly vitiating the assessments contained in the inquiry report, the contested decision and the decision rejecting the special appeal 162 As regards the manifest errors of assessment allegedly directly vitiating the inquiry report and, therefore, the contested decision referring to it, which are grouped under nine arguments for the sake of clarity, the applicant submits, first, that the report exonerates the Director-General for the remarks he made about her, which were based on rumours and which were not substantiated. The applicant also claims that the panel did not take account of the fact that those rumours were, in themselves, a form of harassment. 163 However, it appears from the inquiry report that the remarks of the Director-General which the applicant complains of reflected his personal opinion and that the Director-General’s opinion of the applicant was based on information from her head of division as to the way she was perceived in the division and was expressed at meetings held specifically to consider the situation of the applicant. Against that background, the panel was entitled to consider that the remarks in question could not be deemed to constitute the spreading of rumours. 164 Moreover, it was explained in paragraph 159 of the present judgment that, while some colleagues felt the applicant had a good reputation at work, the majority of them considered that she had a poor reputation on account of frequent absences, delays in the performance of tasks and the fact that she was difficult to work with. The fact that, during the inquiry, witnesses were found to share the Director-General’s view of the applicant is the outcome of the panel’s interviews with those witnesses and cannot, on that basis, constitute a rumour. 165 In so far as, in complaining of the rumours about her, the applicant was referring precisely to her less than spotless reputation at work, it must be observed that her difficulty in balancing her work in the MIS Division with her role on the Staff Committee was mentioned several times in her annual appraisals. On the other hand, her difficult professional relations with her colleagues are not explicitly reflected in those appraisals. However, the appraisals for 2005 and 2006 record her efforts to increase her collaboration with her colleagues in DG Payments, which suggests that that collaboration was not as good as it could be. 166 That being so, it must also be pointed out that it appears from the file before the Tribunal that the Director-General drew the applicant’s attention to her ‘bad reputation’ at work, thus acting transparently, although, in her written pleadings, the applicant alleges that his conduct was not transparent. 167 Moreover, in so far as the applicant alleges that the rumours of which she was a victim were, in themselves, a form of psychological harassment, it must be observed that a negative opinion held by an official or other member of staff about a colleague and the fact that that official or staff member passes on to his superiors complaints about the working time that colleague devotes to her job, about her delays in performing tasks and her difficulties in cooperating do not in themselves constitute psychological harassment. 168 In so far as the ‘rumours’ alleged by the applicant refer to something other than the ‘bad reputation’ which the Director-General drew to her attention, given the vagueness of the complaint on that point and the difficulty of investigating the matter, there cannot, here, be any manifest error of assessment. 169 Second, the applicant claims that the panel made a manifest error of assessment in taking the view that the, in her view, offensive statements of the Director-General, their repetition during the inquiry and the latter’s refusal to apologise were not intentional acts, when the Director-General was well aware of her fragile mental and physical health. 170 It must be observed in that connection that the panel held it to be established that the Director-General made the remarks at issue. It is apparent, moreover, from the inquiry report that the panel considered that those remarks were not unintentional. However, the witness statements included in the inquiry report show that they were made in the context of meetings specifically concerning the applicant’s situation and that those meetings were held in a ‘civilised and constructive atmosphere’, despite a sometimes tense mood, which is inherent in this type of discussion. 171 It is not disputed that the Director-General was aware of the precarious state of the applicant’s psychological and physical health. According to the note on the Dignity at Work policy, ‘[i]t is very much also the impact of the behaviour on the recipient that is important in determining whether the behaviour is inappropriate’. However, that note also makes clear that ‘it is important for everyone to be aware that particular words, ways of speaking and actions may be acceptable in one’s own culture, but may be upsetting or offensive to others’. It follows that, while the perception of the person who claims to be the victim of harassment is an important element, that perception must none the less be objective. That is, moreover, the conclusion the Tribunal drew from a reading of Article 12a of the Staff Regulations (judgment of 9 December 2008 in Case F-52/05 Q v Commission, paragraph 135, not set aside on that point by the judgment of 12 July 2011 in Case T‑80/09 P Commission v Q; see also Skareby v Commission, paragraph 85 above, paragraph 65). Against that background, having regard to the witness statements recorded and to the fact that negative remarks by a superior about an official or other member of staff cannot be considered offensive with regard to that official or staff member in the absence of other elements, the panel, which was also aware of the applicant’s state of health, did not make a manifest error of assessment in taking the view that the remarks of the Director-General did not constitute an act of harassment. 172 The applicant submits, third, that the inquiry report is vitiated by a manifest error in that it considers the refusal to award her an ad personam promotion in 2008 not to be discriminatory on the basis of incorrect information, namely that she did not fulfil the criterion of two years’ service at the highest level of merit required for such a promotion. 173 In its judgment in Case F-96/08, the Tribunal annulled the decision of the ECB refusing to award the applicant an additional salary increase for 2008, basing its reasoning, inter alia, on the fact that the Staff Committee was not consulted before the adoption of the document laying down the above criterion (judgment in Case Of‑96/08, paragraphs 53 and 54). As those grounds constituted the basis for the operative part, they have the authority of res judicata. Consequently, it must be accepted that the panel was wrong to take the fact that the applicant did not fulfil the criterion in question as justification for its view that the refusal to award her an ad personam promotion was not open to criticism. 174 Fourth, the applicant argues that the inquiry report was manifestly erroneous in concluding that she had received the support of DG Payments, whereas, despite numerous requests for assistance, no measure had been taken to alleviate her excessive workload before March 2007, when her working time was reduced because of the deterioration in her state of health. 175 The ECB’s response on that point is that the applicant was given a working time dispensation over and above that normally authorised and that, from 2006, the Director-General of DG Payments held about 15 meetings to discuss the applicant’s situation with her and how she might be helped. 176 However, in the judgment in Case F-84/08, the Tribunal found that there was no evidence capable of establishing that the applicant’s workload was in fact adjusted to take account of the 50% dispensation from working time which she was granted in January 2006 for staff representation and that the main task entrusted to her, that is to say the standards file, was not allocated to another member of staff until March 2007, when she was granted a reduction of working time for medical reasons (judgment in Case F-84/08, paragraph 58). 177 Having regard to the authority of res judicata attaching to the above grounds of the Tribunal, it must be held that the inquiry report is vitiated by an error in that it considered that measures had been taken to alleviate the applicant’s workload before March 2007. 178 The applicant claims, fifth, that the inquiry report stated, in contrast to the annual appraisals to which she was subject, that because of the time she devoted to the Staff Committee and her absences, her working time for her business area was reduced and that the matter had required particular attention from the Director-General of DG Payments. 179 However, it appears from the applicant’s appraisal reports for 2003 to 2006 that her work on the Staff Committee required more time than the working time dispensation granted to her for that purpose, that she had had to work overtime and that she herself acknowledged the difficulty of carrying out both tasks, a situation which she even considered to be a challenge. Although, according to her appraisal reports, she none the less managed to meet her objectives during those years, those comments reveal the existence of a problem and the fact that the applicant’s superiors were afraid that the increased workload resulting from her duties as staff representative might affect her productivity. Moreover, it appears from the file that the applicant’s absences for health reasons exacerbated the problem, which came to a head when she obtained a 35% reduction in working time for health reasons in March 2007. Finally, the Tribunal notes that the applicant herself made several requests for assistance and complained that she should have received more help from her Directorate-General. Against that background, the abovementioned observation of the panel on the reduction of the applicant’s working time dedicated to her business area and the particular attention paid by the Director-General of DG Payments to that question does not appear to be vitiated by a manifest error. 180 The applicant alleges, sixth, that the inquiry report is contradictory in that it states, on the one hand, that the staff of the MIS Division were opposed to her having the assistance of a colleague and, on the other hand, that they had shown that they were prepared to work with her. 181 According to the inquiry report, the applicant’s colleagues did in fact state that they were willing to work with her, some of them, however, specifying that the practical arrangements for such cooperation would have to be set out beforehand. The inquiry report also mentions that the Director-General was of the opinion that the assignment of a colleague to assist the applicant would have been unacceptable to her colleagues and that they would refuse to work under her supervision. However, there is no contradiction here, since the panel’s first finding is derived from the hearings of members of staff, while the second conveys the opinion of the Director-General. Moreover, that opinion, based on information provided by the Head of the MIS Division, may have been weakened or at least greatly moderated during the inquiry by the members of the MIS Division themselves, without that difference in viewpoint amounting to evidence of harassment. 182 The applicant observes, seventh, that the inquiry report contains an error in that, in its assessment of the fact that the standards file was definitively taken away from her after the reduction of her working time on medical grounds ended in May 2007, the panel failed to consider the fact that the other members of DG Payments who had been on sick leave were able to resume their duties on their return. 183 However, that allegation, even if substantiated, could not constitute evidence of a manifest error of assessment in so far as the applicant had been complaining of an excessive workload for a long time. Moreover, in its judgment in Case F-84/08, the Tribunal held that the ECB, which is empowered to organise and reorganise its departments according to its needs …, was entitled to take the view, without prejudicing the applicant’s status, that, because of her working time dispensation and the reduction of her working time on medical grounds, she was no longer able to follow the standards file properly (Case F-84/08, paragraph 59). 184 The applicant claims, eighth, that the content of the inquiry report, of the contested decision and of the decision rejecting the special appeal resulted in further defamation. 185 In addition to the fact that, as has been explained above, the defamatory nature of the remarks made about the applicant has not been proven, the ECB points out correctly that it is a feature of any internal administrative inquiry that it may result in findings which do not confirm the statements put forward by the author of the complaint giving rise to the inquiry and may comprise findings which are contrary to the complainant’s expectations. Accordingly, such a situation cannot be defamatory in itself. 186 Ninth and finally, the applicant alleges that the decision rejecting the special appeal relies on extracts from her annual appraisals which are unfavourable to her because they are altered or taken out of context. 187 However, it appears from the file that the quotations complained of are correct. In addition, if they really are only short extracts from the applicant’s annual appraisals, that does not explain, generally, in what way the ECB distorted their scope in the decision rejecting the special appeal. The applicant compares only her appraisal for 2006 with one of the grounds of the decision rejecting the special appeal. According to that decision, the 2006 appraisal suggested that the applicant ‘should increase the interaction with the colleagues [in the MIS Division]’ whereas in the appraisal report at issue the appraisor wrote that he ‘fully support[ed] the efforts which have been made by [the applicant] to increase the interaction with … colleagues …’. However, it must be found that, although the remark in that appraisal report is presented in a positive way, it none the less implies a finding by the appraisor of a failing and of the need for the applicant to remedy it. In any event, it does not appear that the quotations criticised were a decisive factor. 188 Having examined the submissions relating to the alleged incompleteness of the inquiry report and those alleging that the findings of the panel were directly vitiated by manifest errors of assessment, the Tribunal must now sum up this analysis. d) Overall assessment 189 On conclusion of the above analysis, it appears that most of the applicant’s criticisms are not founded. 190 Whilst it has been pointed out that certain of the applicant’s allegations were not examined by the panel, it has also been observed that, in the overall context of the inquiry report, those allegations were complaints of secondary importance and not crucial (paragraph 161 of the present judgment). 191 It has also been accepted, in the light of the judgment in Case F-96/08, that the panel wrongly took the fact that the applicant did not fulfil the criterion of two years’ service at the highest level of merit as justification for its view that the refusal to award her an ad personam promotion was not open to criticism (paragraph 173 of the present judgment). 192 Finally, it has been observed that the Tribunal held in its judgment in Case F‑84/08 that there was no evidence capable of establishing that the applicant’s workload was in fact adjusted to take account of the 50% dispensation from working time which she was granted in January 2006 for staff representation and that the standards file was not allocated to another member of staff until March 2007, when she was granted a reduction of working time for medical reasons (paragraph 176 of the present judgment). 193 However, those few elements, taken in isolation or even as a whole, are not such as to lead to the conclusion that the contested decision is vitiated, overall, by a manifest error of assessment. Applying the criterion used in paragraph 131 of the present judgment, they do not render implausible the ECB’s view that the applicant was not subject to discrimination, harassment or an infringement of the Dignity at Work policy, particularly as the inquiry appears to have been conducted with great attention to detail, with the panel hearing 38 people and analysing the situation at length in the 61-page inquiry report. Moreover, it must be pointed out that the applicant herself infers the manifest error allegedly vitiating the contested decision, not only from the submissions set out in the preceding paragraphs, but from a much longer series of grievances which are not substantiated. 194 Therefore, the third plea is unfounded. 4. The fourth plea, of violation of the concept of psychological harassment a) Arguments of the parties 195 The applicant claims that the panel disregarded the provisions of the note on the Dignity at Work policy in favour of the rules of the Staff Regulations, whereas, unlike the Staff Regulations, those provisions did not require the inappropriate acts to be intentional. In particular, the inquiry report did not contain any assessment of the conduct of the Director-General in the light of those provisions, despite the fact that he offended her by calling her reputation into question. 196 Moreover, the conclusion of the inquiry report that the remarks of the Director-General were not intentional is, she argues, manifestly incorrect because he knew of the applicant’s health problems and was aware both of the fact that she perceived his statements as offensive and of the consequences they had on her psychological state. 197 Finally, the inquiry report failed to take account of the fact that the Director-General repeated his offensive statements. 198 The ECB disputes this plea. b) Findings of the Tribunal 199 Although the argument put forward by the applicant is confused and vague, it must be understood as meaning that the panel did not assess the Director-General’s discrediting of the applicant’s reputation in the light of the note on the Dignity at Work policy, whereas, according to that note, ‘[t]he intention of an alleged wrongdoer is not the only or even the main issue[;] the behaviour may even be unintentional on the alleged wrongdoer’s part’. 200 As has already been found at paragraph 147 of the present judgment, the panel, after setting out the rules contained in the note on the Dignity at Work policy, found that those provisions did not define psychological harassment and, therefore, made reference to its definition in Article 12a of the Staff Regulations. 201 However, it must be pointed out that, following various findings concerning offensive conduct and psychological harassment in general, the spreading of rumours, and the threats of which the Director-General was allegedly guilty, it was precisely in the light of the note on the Dignity at Work policy that the panel assessed the applicant’s allegations. 202 Moreover, it appears from the file that in pointing out that the Director-General had no intention of offending or threatening the applicant, the panel was responding to her argument, set out in her comments of 5 October 2009 on the draft inquiry report, that the Director-General was well aware of her negative perception of his remarks, of her state of health and of the damage he was causing her. In that light, the panel was able to reject that argument by pointing out that those statements were made in an atmosphere of civility, in good faith, in a constructive context and with respect for the dignity of the applicant, without establishing a principle that the intention to cause damage must be present in order for facts to be described as psychological harassment in the light of the provisions of the note on the Dignity at Work policy. 203 Moreover, the applicant cannot rely, as she does in her application, on her fragile psychological and physical health to establish that the concept of psychological harassment has been misinterpreted. Research must be undertaken as to whether the impugned facts justify, objectively, such a classification, for, while the note on the Dignity at Work policy states that ‘it is very much … the impact of the behaviour on the recipient that is important’, it also makes clear that ‘it is important for everyone to be aware that particular words, ways of speaking and actions may be acceptable behaviour in one’s own culture, but may be upsetting or offensive to others’, with the result that, while the perception of the person concerned is an important aspect of the assessment, that perception must none the less be capable of being objectively confirmed (see, to that effect, on the basis of Article 12a of the Staff Regulations, Skareby v Commission, paragraph 85 above, paragraph 65). 204 Finally, it is apparent from the inquiry report that the panel listed the various meetings at which the Director-General allegedly caused offence to the applicant inter alia by referring to her ‘bad reputation’ at work, which demonstrates that the panel did not ignore the claim that the Director-General repeated the allegedly offensive remarks. 205 In the light of the foregoing, it must be held that the fourth plea is unfounded. 5. The fifth plea, alleging breach of the duty to provide assistance a) Arguments of the parties 206 The applicant considers, first, that there is a breach of the duty to provide assistance in the fact that she was not granted a sufficient working time dispensation for the work she was carrying out for the Staff Committee, in the refusal to provide her with the assistance of a colleague because of her excessive workload on the standards file or to take any other effective measure, in the fact that negative rumours about her were allowed to circulate, in the refusal to take her out of the managerial framework as she requested and as her doctor advised and, finally, in the absence of any impartial assessment of the work she did in 2007. 207 The applicant then argued that the panel did not properly assess the circumstances, particularly as regards her situation in DG Payments, where she had always had positive assessments. Moreover, it failed to take account of the fact that psychological harassment is not always obvious. In addition, it confirmed that rumours calling into question her reputation because of her absences, her delays in the completion of tasks and her character had been spread but did not verify whether they were substantiated or assess them with regard to the claim of psychological harassment. 208 In her reply, the applicant, moreover, disputes the impartiality of the panel, referring to a letter of 11 June 2008 in which her counsel requested that the inquiry be entrusted to persons external to the ECB, essentially because she had personal knowledge of various persons after 10 years of working for the Staff Committee. 209 The ECB disputes those arguments and maintains that the plea is not founded and that the plea of absence of impartiality raised in the reply is, for its part, out of time. b) Findings of the Tribunal 210 It must be borne in mind that the applicant seeks the annulment of the decision of the ECB closing the inquiry opened in response to her complaint, concerning, first, discrimination on the grounds of her sex, age, nationality and state of health, and, second, concerning discrimination on the ground of her membership of the Staff Committee and, finally, concerning breach of the Dignity at Work policy, in particular by the Director-General, including by defamation, isolation, psychological harassment and intimidation. Therefore, the fifth plea is ineffective in that it challenges, not the failure to provide assistance resulting from rejection of her complaint, but a failure to provide assistance resulting from the acts or conduct referred to in paragraph 206 of the present judgment. 211 As regards the submission that the panel did not properly assess the circumstances of the case, it is apparent from consideration of the third plea that that submission is not founded. In particular, it must be recalled that the panel examined, inter alia, the problem of the alleged rumours spread about the applicant and reached the conclusion that that submission was not justified. 212 Finally, as regards the allegation raised in the reply of the panel’s lack of impartiality, it must be held that, as the administration’s obligation to act impartially is an essential procedural requirement (see, to that effect, judgment of 20 September 2011 in Case T-461/08 Evropaïki Dynamiki v EIB, paragraphs 130 and 131), a plea of its breach raises an issue of public policy, which cannot therefore be out of time. However, the mere fact that the applicant worked for 10 years on the Staff Committee is not sufficient to call into question the impartiality of the panel. 213 The fifth plea in law must accordingly be rejected. 214 It follows from the foregoing that, in the absence of any pleas that are founded, the claims for annulment must be rejected. III – The head of claim seeking compensation for the damage to the applicant 215 The applicant claims that the ECB did not grant her the aid to which she was entitled in the context of her work and even added to the rumours, the defamation and the attack on her dignity in the framework of the inquiry. That conduct damaged her health. Consequently, the applicant considers that she has suffered non-material damage which she assesses ex aequo et bono at EUR 50 000. Furthermore, she considers that the conduct of the ECB forced her to seek the assistance of a lawyer whose costs the ECB should bear by way of reparation for her material loss, costs which she estimates at EUR 15 000. 216 It must be borne in mind that, where the damage on which an applicant relies arises from the adoption of a decision whose annulment is sought, the rejection of the claim for annulment entails the rejection of the claim for damages, where those claims are closely linked, as in the present case. 217 Moreover, the applicant has already received compensation through the judgment in Case F-84/08 for the fact that the ECB failed to establish that it had adjusted her workload to take account of the working time dispensation which she had been granted in order to carry out her staff representation duties (judgment in Case F‑84/08, paragraphs 58 and 60). 218 In so far as the claim for compensation for material damage must be interpreted as being based on conduct of the ECB distinct from the alleged illegality of the contested decision, it must be borne in mind that lawyer’s fees during the pre-contentious procedure constitute recoverable costs on the terms laid down in Article 86 et seq. of the Rules of Procedure of the Tribunal and that they must be dealt with in that framework. As regards the lawyer’s costs incurred during the pre-contentious procedure, it must also be borne in mind that Article 91 of those rules refers only to the costs inherent in proceedings before the Tribunal, to the exclusion of those incurred during the prior stage. Therefore, to regard such costs as a loss for which compensation may be claimed in an action for damages would be inconsistent with the fact that costs incurred during the phase before the judicial proceedings are not recoverable (order of 14 September 2005 in Case T‑140/04 Ehcon v Commission, paragraph 79; judgment of 8 November 2011 in Case T‑88/09 Idromacchine and Others v Commission, paragraph 100, under appeal to the Court of Justice, Case C-34/12 P). 219 The applicant’s claim for compensation for damage must, therefore, be rejected. IV – The requests for measures of inquiry and measures of organisation of the procedure A – The measures of inquiry and measures of organisation of the procedure sought in the application 220 By her fifth and sixth heads of claim, the applicant asks the Tribunal to order the ECB to produce, pursuant to Article 55 of the Rules of Procedure, the file of the inquiry including the annexes to the inquiry report and the minutes of the hearings. Those documents were indispensable, she claimed, in order to allow ‘proper debates’. The applicant argues, in that regard, that Article 7 of Regulation No 45/2001 allows the transfer of personal data from one institution of the Union to another and that, in an order of 26 September 2007 in Case F-52/05 Q v Commission, paragraphs 10 and 11, also on the subject of psychological harassment, the Tribunal has already held that an applicant should be allowed access to all witness statements without any exception. Moreover, pursuant to Article 59 of the Rules of Procedure, the applicant asks the Tribunal to call as a witness the former social counsellor at the ECB who was a privileged witness of what happened and whose statements collected by the panel were not reproduced in the inquiry report. 221 However, the Tribunal does not see the need, in the present case, to order the production of the annexes to the inquiry report, or, in particular, the lodging of the minutes of the hearings of witnesses, with regard to which it was found, on examination of the first plea in support of annulment of the contested decision, that the ECB was entitled not to communicate them to the applicant during the administrative procedure. 222 It must be observed, in that regard, that the inquiry report sent to the applicant contains, inter alia, an account of the facts compiled during the inquiry and that the report is particularly full and informative in itself. Moreover, in the context of a complaint of psychological harassment, the Tribunal takes the view that it is appropriate, except in special circumstances, to guarantee the confidentiality of witness statements collected, including during the contentious proceedings, since it is not unreasonable to take the view that the prospect of a possible removal of that confidentiality at the stage of contentious proceedings may impede the holding of neutral and objective inquiries with the unreserved cooperation of the members of staff called as witnesses. The applicant has not adduced sufficient evidence to warrant the Tribunal’s derogating from that precaution in the present case. 223 As to the hearing as a witness of the former social counsellor at the ECB, a few emails from whom appear in the file, the applicant confined herself to stating that this person was a privileged witness of what happened, without indicating clearly the points on which she could provide crucial evidence and in what way it would be crucial. 224 The fifth and sixth heads of claim of the applicant cannot therefore be upheld. B – The request for production of the note of 18 November 2010 in full and its removal from the file 225 In her letter of 26 January 2012 (mentioned in paragraph 39 of the present judgment) the applicant asked the Tribunal to request the ECB to produce the unexpurgated version of the note of 18 November 2010. By its note of 29 February 2012, the ECB not only refused to produce the note of 18 November 2010 but also asked the Tribunal not to take account of the annex to the note. 226 It must be observed that the note of 18 November 2010 and its annex were drawn up while the present case was already pending and that they contain an opinion emanating from DG Legal Services of the ECB, and the fact that DG Legal Services consulted DG Human Resources, Budget and Organisation does not affect their origin or nature in any way. As their heading indicates, the note of 18 November 2010 and its annex examine the outcome and implications of Court Cases F‑84/08, F‑96/08 and F‑23/09. The annex covers, inter alia, the consequences of the judgment in Case F-84/08 for the present case. 227 Against that background, it must be borne in mind that public policy requires that the institutions can receive the advice of their legal service, given in full independence (order of 23 October 2002 in Case C‑445/00 Austria v Council, paragraph 12; judgment of 8 November 2000 in Case T‑44/97 Ghignone and Others v Council, paragraph 48; order of 30 April 2010 in Case T-18/10 R Inuit Tapiriit Kanatami and Others v Council, paragraph 19) and that the unauthorised disclosure by the institution of such an opinion in the context of a dispute concerning precisely the validity of the decision to which that opinion relates would conflict, generally, with the right of that institution to a fair hearing (see, to that effect, order of 29 January 2009 in Case C-9/08 Donnici v Parliament, paragraph 18; judgment of 21 July 2011 in Case C‑506/08 P Sweden v MyTravel and Commission, paragraphs 117 and 118). None the less, it is possible for the Courts of the European Union to order the production of such a document if a higher public interest justifies it (order in Donnici v Parliament, paragraphs 20 and 22). 228 In the present case, the applicant points out, first, that the production of the note of 18 November 2010 in full would allow account to be taken of the true assessment by the ECB of the implications of the judgments in Cases F-84/08, F-96/08 and F‑23/09 for the present dispute. 229 Even if such was in fact the scope of the passages of the note of 18 November 2010 which were omitted when the note was communicated to the applicant, it must be observed that those passages are said to contain an opinion of DG Legal Services drawn up in the context of a dispute concerning precisely the validity of the decision to which those parts of that opinion relate. Such a perspective would undeniably affect the fairness of the procedure to which the ECB is entitled and would inevitably have repercussions on its interest in receiving frank, objective and full opinions from its DG Legal Services (see, to that effect, Donnici v Parliament, paragraph 227 above, paragraph 21). The applicant has not pleaded a higher interest, properly substantiated, which would justify the production before the Tribunal of the passages omitted from the note in question. Moreover, ordering the communication of the note of 18 November 2010 in full is all the more unnecessary in that the note post-dates the contested decision, so that, unlike a preparatory measure, it is not such as to vitiate the legality of the decision in itself. Furthermore, the Tribunal has already taken account, in the course of examining the present case, of the findings in the judgments in Cases F-84/08 and F-96/08. 230 The applicant argues, second, that the production of the note of 18 November 2010 in full would make it possible to assess whether the inquiry report is likely to have a negative impact on her future prospects at the ECB. However, such a ground, which is of a personal nature, cannot constitute a higher public interest warranting a derogation from the principle of the confidential nature of opinions of DG Legal Services concerning pending contentious proceedings. Even the applicant herself does not claim that. 231 However, it cannot be ruled out that the passages omitted from the note of 18 November 2010 which the applicant is asking the ECB to produce before the Tribunal contain considerations other than an assessment of the impact of the judgments in Cases F-84/08, F-96/08 and F-23/09 on the present case. In that case, the applicant’s interest in gaining possession of the note in full to enable her to know whether the inquiry report might in future damage her position at the ECB, would have no connection with the present action, but would concern a future hypothetical dispute. Therefore, there can be no basis for the applicant’s request in Article 54(2) of the Rules of Procedure which allows each party to propose the adoption or modification of measures of organisation of procedure ‘at any stage of the proceedings’. In any event, as recalled in paragraph 32 of the present judgment, the applicant brought an action registered as Case F-26/12 essentially seeking the annulment of a decision of 21 June 2011 by which the ECB rejected her request for access to all the decisions of the Executive Board and the documents provided to it concerning Cases F-84/08, F-96/08 and F‑23/09. Thus, in the situation envisaged here, it would not be appropriate for the Tribunal to order the production in the present proceedings, as an ancillary matter, of a document the refusal of access to which is the subject of separate and distinct proceedings, without subverting the guarantees offered by those proceedings. 232 The ECB’s request for the withdrawal from the file of the annex to the note of 18 November 2010 remains to be examined. As has already been explained below, that annex summarises the implications of the judgment in Case F-84/08 for the present case. As such it could have benefited from the confidentiality of opinions of DG Legal Services in pending proceedings. However, the case-law allows an institution, such as the ECB, to authorise the production of such an internal document (orders in Austria v Council, paragraph 227 above, paragraph 12, and Donnici v Parliament, paragraph 227 above, paragraph 13; order in Inuit Tapiriit Kanatami and Others v Council, paragraph 227 above, paragraph 19). The ECB sent the annex in question to one of the applicant’s counsel by a letter of 12 August 2011 from the Director-General of DG Human Resources, Budget and Organisation. Against that background, the ECB’s request for removal of that document on the sole ground, not backed by evidence, that the annex in question was disclosed to the applicant as a result of an administrative error cannot be upheld. 233 In conclusion, it is not appropriate to uphold either the applicant’s request for the production of the note of 18 November 2010 in full or the ECB’s request for the removal from the file in the present proceedings before the Tribunal of the annex to that note. Costs 234 The applicant has applied for an order that the ECB bear all the costs of the present proceedings even if her application is dismissed, because the ECB’s conduct has allegedly caused the ‘proliferation of proceedings’ and the present action. Moreover, her right to bring proceedings cannot be limited by financial considerations connected with the ECB’s choosing always to engage the services of a lawyer although it has a legal service including a unit specialising in staff cases. 235 For its part, the ECB knows of no consideration of equity which would justify the application of Article 87(2) of the Rules of Procedure and notes that it is apparent from Article 19 of the Statute of the Court of Justice of the European Union that the institutions are free to engage the services of a lawyer. 236 Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 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. Furthermore, under Article 88 of the Rules of Procedure, a party, even if successful, may be ordered to pay some or all of the costs, if this appears justified by the conduct of that party. 237 In the present case, it is apparent from the reasons set out above that the applicant has been unsuccessful. Furthermore, in its pleadings the ECB has expressly requested that the applicant be ordered to pay the costs. 238 Moreover, the Tribunal is not aware of, and the applicant has not explained, the reasons of equity or the aspect of the ECB’s conduct which are alleged to justify its being ordered to pay the costs when the action must be dismissed as none of the pleas is well founded. 239 Since the circumstances of this case do not warrant application of the provisions of Article 87(2) of the Rules of Procedure, the ECB must bear its own costs and be ordered to pay the costs incurred by the applicant. 240 The question whether the costs incurred by the ECB may include the costs relating to the services of a lawyer is a dispute concerning the amount and nature of the costs which it would be premature to decide in the present judgment and which may only be decided pursuant to Article 92 of the Rules of Procedure. On those grounds, THE CIVIL SERVICE TRIBUNAL (Third Chamber) hereby: 1. Dismisses the action; 2. Declares that Mrs Cerafogli must bear her own costs and orders her to pay the costs of the European Central Bank. Van Raepenbusch Boruta Perillo Delivered in open court in Luxembourg on 12 December 2012. W. Hakenberg S. Van Raepenbusch Registrar President Table of contents Legal context Facts giving rise to the dispute I – Background to the present dispute II – Other actions brought before the Tribunal by the applicant Forms of order sought and procedure Law I – The head of claim seeking to have the applicant’s claims in the application for pre-contentious review upheld II – The head of claim seeking the annulment of the contested decision and of the decision rejecting the special appeal A – Admissibility 1. Failure to respect the pre-contentious procedure, the time-limit applicable to special appeals and the rule of correspondence between the complaint and the action a) Arguments of the parties b) Findings of the Tribunal 2. Absence of any act with adverse effect 3. The plea of lis pendens a) Arguments of the parties b) Findings of the Tribunal B – Substance 1. The first plea, alleging infringement of the rights of the defence, breach of Article 6(5) and Article 7(1) and (3) of Circular 1/2006, breach of the obligation to state reasons, breach of Article 3 of the Rules of Procedure of the Executive Board of the ECB of 12 October 1999 and breach of Articles 51 and 52 of the Conditions of Employment a) Arguments of the parties b) Findings of the Tribunal The first part, criticising the lack of access to the inquiry file on the basis that it was an infringement of the rights of the defence, and breach of Article 6(5) and Article 7(1) and (3) of Circular 1/2006 – Infringement of the rights of the defence – Breach of Article 6(5) and Article 7(1) and (3) of Circular 1/2006 The second part, alleging an insufficient statement of reasons The third part, alleging breach of Article 6(5) of Circular 1/2006 The fourth part, alleging breach of Article 3(1) of the Rules of Procedure of the Executive Board 2. The second plea, alleging breach by the panel of its mandate a) Arguments of the parties b) Findings of the Tribunal 3. The third plea, alleging a manifest error of assessment a) Preliminary observations b) The incomplete nature of the inquiry report c) Manifest errors directly vitiating the assessments contained in the inquiry report, the contested decision and the decision rejecting the special appeal d) Overall assessment 4. The fourth plea, of violation of the concept of psychological harassment a) Arguments of the parties b) Findings of the Tribunal 5. The fifth plea, alleging breach of the duty to provide assistance a) Arguments of the parties b) Findings of the Tribunal III – The head of claim seeking compensation for the damage to the applicant IV – The requests for measures of inquiry and measures of organisation of the procedure A – The measures of inquiry and measures of organisation of the procedure sought in the application B – The request for production of the note of 18 November 2010 in full and its removal from the file Costs * Language of the case: English.