Information;Judgment — ECLI:EU:T:2021:890
Date: 2021-12-15
Language of the case: English
Court formation: First Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Action for damages - successful;Action for damages - unfounded;Staff cases - successful

summary of the statements of the persons alleged to have harassed her or of the witnesses who were heard. She also submits that she was likewise not heard by the President of the EIB before the contested decision was adopted. According to the applicant, those circumstances amount to a breach of the right to be heard laid down in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’). 77 Moreover, the applicant adds that she was not given access to the documents referred to in the investigation report which allegedly showed attempts made by Z to protect her reputation and to accommodate her mobility requests. The applicant observes that it was partly on the basis of those documents, to which she did not have access, that the Investigation Panel established that she had erroneously believed that Z was harassing her. 78 In response, the EIB contends, first, that the applicant was given the opportunity to comment effectively on the contents of the draft investigation report before the President of the EIB adopted the contested decision, and that she had done so; second, while acknowledging that the Investigation Panel did not provide the applicant with a separate summary of the record of the interviews with the persons alleged to have harassed her and with the witnesses, the EIB maintains that, in any event, the outcome of the investigation would not have been different if the applicant had had the possibility to comment on the statements made by the two persons concerned and the two witnesses. 79 Article 41(2) of the Charter provides that the right to good administration includes the right of every person to be heard before any individual measure which would affect him or her adversely is taken, the right of every person to have access to his or her file while respecting the legitimate interests of confidentiality and of professional and business secrecy, and the obligation of the administration to give reasons for its decisions. 80 Accordingly, the right of the person concerned to be heard before the adoption of any individual decision affecting him or her adversely is expressly enshrined in the abovementioned provisions of the Charter, which has, since 1 December 2009, the date of entry into force of the Treaty of Lisbon, the same legal value as the Treaties (judgment of 10 January 2019, RY v Commission, T‑160/17, EU:T:2019:1, paragraph 34). 81 More specifically, the right to be heard guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely (see judgment of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraph 58 and the case-law cited). 82 In addition, where a decision can be adopted only if the right to be heard has been respected, the person concerned must be given the opportunity to make known his or her views on the proposed measure effectively, in the context of an oral or written exchange initiated by the administration, proof of which must be adduced by the latter (see, to that effect, judgment of 10 January 2019, RY v Commission, T‑160/17, EU:T:2019:1, paragraph 45 and the case-law cited). 83 It is also apparent from the case-law, which is applicable mutatis mutandis to conflicts between the EIB and members of its staff, that, in a dispute concerning harassment involving EU officials, the person who lodged a complaint of harassment with the Director-General for Personnel is entitled, in order to be able effectively to submit his or her observations to the institution concerned before it took a decision, to receive a summary, at the very least, of the statements made by the person accused of harassment and the various witnesses heard during the investigation procedure and that such a summary must be disclosed while respecting, if necessary, the principle of confidentiality. The Court of Justice noted that that was the case as the statements had been used in the report which had been submitted to the authority that had taken the decision not to pursue the complaint and included recommendations on the basis of which that authority had made its decision (see judgment of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraph 60 and the case-law cited). 84 In the present case, it is apparent from the file and, in particular, from the draft investigation report sent to the applicant on 29 March 2019 (see paragraph 49 above) and from the Investigation Panel’s report, that, in order to rule on the applicant’s complaint, that panel had not only the witness statements of Z and Y at its disposal, as provided in the written documents they had submitted (see paragraph 43 above) and as expressed at their respective hearings (see paragraphs 44 and 45 above), but also other witness statements obtained during the hearings (see paragraph 44 above) or directly in writing (see paragraph 47 above). In addition, the Investigation Panel also requested information by email from other persons (see paragraph 48 above). All of those statements and information provided the Investigation Panel with an overall, detailed view of the truth of the facts and how those facts were perceived by the various participants in the case. 85 It is also clear from the report that the Investigation Panel possessed documents which showed attempts made by Z to protect the applicant’s reputation and to accommodate her mobility requests, documents which, it has been made clear, the applicant did not know of, even though those documents appear to have played a decisive role in the Investigation Panel’s assessment and, therefore, in the contested decision, by which the President of the EIB rejected the applicant’s complaint. 86 Since all the witness statements and information referred to in paragraph 84 above and the documents referred to in paragraph 85 above were taken into account by the President of the EIB for the purpose of adopting the contested decision, it was important that the applicant be able to comment on them. 87 However, it is apparent from the case-law that those documents should have been disclosed to the applicant while respecting legitimate expectations as regards confidentiality, which must therefore be balanced against the right to be heard (see, to that effect, judgment of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraph 63 and the case-law cited). 88 In that regard, it has already been held that in order to ensure that witness statements remain confidential and that the objectives of such confidentiality are respected, while ensuring that the applicant is properly heard before a decision adversely affecting him or her is adopted, certain techniques may be used, such as anonymisation, or even disclosure of the substance of the witness statements in the form of a summary, or the redaction of some of the content of those statements (see judgment of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraph 66 and the case-law cited). 89 While it is true that the Investigation Panel’s report referred to extracts of the witness statements and information mentioned in paragraph 84 above, it must nevertheless be noted, as the EIB expressly acknowledges in the present action (see paragraph 78 above), that the applicant did not receive, at the very least, an anonymised summary of the statements of the various witnesses and was not heard on those statements, with the result that she was not put in a position to be able effectively to submit observations on their content before the President of the EIB adopted the contested decision, which adversely affects her. The same observation must be made as regards the documents referred to in paragraph 85 above. 90 That failure as regards disclosure constitutes an irregularity that inevitably affected both the opinion of the investigation Panel and the contested decision (see, by analogy, judgment of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraph 73). Indeed, if the applicant had been given the opportunity to be properly heard, she might have persuaded the President of the EIB that a different assessment of the facts and the various contextual factors that were decisive in that decision was possible and that a different weight should be applied to them. 91 It cannot therefore be ruled out that the decision taken by the President of the EIB on the complaint lodged by the applicant might have been different. 92 It follows that, in the present case, the failure to disclose at the very least a summary and not just selected extracts of the witness statements and information referred to in paragraph 84 above and of the documents referred to in paragraph 85 above, is contrary to the requirements of Article 41 of the Charter. 93 It follows from the foregoing that the first part of the third plea in law must be upheld and the contested decision annulled, without there being any need to analyse the second part of the present plea or the first and second pleas in law. 94 As a result of the annulment of the contested decision, there is likewise no need to rule on the claim for annulment of the decision rejecting the request for conciliation since the applicant seeks that annulment only ‘so far as necessary’ and since the decision rejecting the request for conciliation is relevant only in relation to the contested decision for which conciliation was sought. The claim for damages 95 The applicant makes two claims for compensation, which are to be examined in turn. 96 The EIB contends that the claims for compensation should be rejected, disputing any fault on its part. Compensation for non-material harm that can be separated from the unlawfulness affecting the contested decision 97 The applicant claims that she has suffered non-material harm that can be separated from the unlawfulness which affects the contested decision and which, in any event, could not be compensated for in full solely by the annulment of that decision. 98 That non-material damage, which she estimates ex æquo et bono at EUR 100 000, stems in essence, in the first place, from the fact that the EIB did not adopt any provisional measure to protect her by transferring her away from Z, although several doctors had recommended that step, and, in the second place, from the bias and errors of assessment of the Investigation Panel that have affected her trust in the EIB and reinforced a feeling of injustice on her part. 99 In that regard, it should be borne in mind that, according to settled case-law, whether the EIB incurs non-contractual liability is subject to a number of conditions being met, namely the conduct complained of must be unlawful, actual harm must have been suffered and there must be a causal link between the alleged conduct and the damage purportedly suffered (see judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 165 and the case-law cited). 100 Furthermore, according to settled case-law also applicable mutatis mutandis to disputes between the EIB and its members of staff, disputes between the European Union and its staff, irrespective of the employment regime applied to its staff, are subject to particular rules that form a special category compared with those deriving from the general principles governing the non-contractual liability of the Union in the context of Article 268 TFEU and the second paragraph of Article 340 TFEU. Unlike any other individual acting under those provisions, an official or other member of staff of the European Union is connected to the institution or agency to which he or she belongs by a legal employment relationship involving a balance of specific reciprocal rights and obligations, which is reflected in the institution’s duty to have regard for the welfare of the person concerned. That balance is essentially intended to preserve the relationship of trust which must exist between the institutions and their members of staff in order to guarantee to the public that tasks in the public interest entrusted to the institutions are performed effectively. It follows that where it acts as an employer, the Union’s liability is greater, in the form of the obligation to compensate damage caused to its members of staff as a result of any unlawful act committed by it as employer, and is not confined, as in the case of actions brought under Article 268 TFEU and the second paragraph of Article 340 TFEU, to sufficiently serious breaches of a rule of law intended to confer rights on individuals (see judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 166 and the case-law cited). 101 In so far as one of the three conditions set out in paragraph 99 above is not satisfied, the action must be dismissed in its entirety without it being necessary to examine the other conditions for non-contractual liability (see judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 167 and the case-law cited). 102 In the present case, as regards the absence of any provisional measure to move the applicant during the investigation procedure, it must be borne in mind that the opinions of medical experts are not, in any event, such as to establish, in themselves, the existence in law of harassment or of the institution’s negligence in the light of its duty to provide assistance. In particular, it is apparent from the case-law that while the medical officers of the institution may reveal that officials or other members of staff have psychological problems, they cannot establish that those problems result from psychological harassment, since, to make such a finding of harassment, the authors of the medical certificate would necessarily have to rely exclusively on the description that the persons concerned have made of their working conditions in the institution in question and would not be able to test that version of events against the version advanced by the person whose conduct was complained of by those officials or other members of staff (see judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 72 and the case-law cited). 103 Furthermore, unlike the internal rules of other institutions, there is no express obligation on the EIB under the Code of Conduct or the Dignity at Work Policy to adopt provisional distancing measures. Nevertheless, Article 3.6 of the Code of Conduct provides that, ‘the [EIB] is obliged to show those in question concern and offer its support’. Accordingly, it may be inferred from that duty of concern that the EIB may in some circumstances be required to adopt certain provisional measures. 104 It is apparent from the documents before the Court that efforts were made by the EIB to enable the applicant to find a post outside the department in question and that, in particular, the EIB proposed to the applicant on 20 July 2017 that she be permanently transferred to the regional office of the Jaspers initiative in Vienna (see paragraph 14 above). The EIB also offered the applicant another post in a different EIB directorate at the interview of 19 June 2018 (see paragraph 26 above). Accordingly, it has to be noted that the EIB, in the space of less than a year, made two offers of transfer outside the department in question to the applicant. 105 In those circumstances, the applicant is not justified in arguing that the EIB did not respond to her situation with all due concern in that it did not try and enable her to find a post outside the department in question. 106 The applicant’s claim for compensation in respect of the EIB’s alleged failure to adopt provisional distancing measures must therefore be rejected. 107 As regards the damage resulting from the Investigation Panel’s bias and errors of assessment, it is apparent from the applicant’s pleadings that her claim for compensation must be interpreted as seeking to remedy the harmful consequences stemming from the contents of the investigation report, the unlawful nature of which is established, inter alia, by the evidence presented in support of her application for annulment of the contested decision. 108 In that regard, it must be borne in mind that, according to settled case-law, the annulment of an unlawful measure may constitute, in itself, appropriate and, in principle, sufficient compensation for any non-material damage which that measure may have caused (see judgment of 7 February 1990, Culin v Commission, C‑343/87, EU:C:1990:49, paragraph 26 and the case-law cited). However, that would not be the case where the applicant shows that he or she has sustained non-material harm that can be separated from the illegality on which the annulment is based and that cannot be compensated in full by that annulment (see judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 180 and the case-law cited). 109 In the present case, the non-material harm which the applicant claims is due, in essence, to the feeling of injustice and the torment caused by the fact that she had to undergo a pre-contentious procedure and then a contentious procedure in order to ensure recognition of her rights. According to the applicant, the rejection of her complaint placed her in a situation of anxiety, uncertainty and dismay which, in her view, constitutes non-material harm that cannot be compensated in full solely by the annulment of the contested decision. 110 However, suffice it to note, in order to reject that claim, that the application does not provide the slightest evidence as to the extent of the non-material harm allegedly suffered by the applicant. 111 In any event, the Court considers that the annulment of the contested decision constitutes in itself appropriate compensation for the non-material harm allegedly suffered by the applicant. 112 In those circumstances, the applicant’s first claim for compensation must be rejected. Compensation for the damage resulting from the loss of an opportunity to settle the dispute amicably 113 The applicant maintains that she should be compensated for the loss of a chance to settle the dispute amicably and to avoid having to bring an action before the Court, since her request for conciliation of 16 September 2019 was rejected on unlawful grounds. She estimates that damage ex aequo et bono at EUR 50 000. In particular, the applicant claims that the EIB erred in rejecting her request for conciliation on the ground that decisions made following the recommendations of the Investigation Panel in the context of the procedures relating to the Dignity at Work Policy could not be subject to a conciliation procedure (see paragraph 55 above). 114 According to the case-law, in order to determine the amount of compensation to be paid in respect of loss of opportunity, it is necessary, having identified the nature of the opportunity of which the official has been deprived, to determine the date from which he or she would have been given that opportunity, and then quantify that opportunity and, lastly, explain the financial consequences for the official of that loss of opportunity (see, by analogy, judgment of 13 March 2013, AK v Commission, F‑91/10, EU:F:2013:34, paragraph 91 and the case-law cited). 115 In addition, according to case-law, where possible, the opportunity of which an official has been deprived must be calculated objectively, in the form of a mathematical coefficient resulting from an accurate analysis. However, where that opportunity cannot be quantified in this way, it is accepted that the damage suffered may be assessed ex æquo et bono (see, by analogy, judgment of 13 March 2013, AK v Commission, F‑91/10, EU:F:2013:34, paragraph 92 and the case-law cited). 116 In the present case, the documents before the Court show that by decision of 10 October 2019 the President of the EIB rejected the applicant’s request for conciliation on incorrect grounds. Indeed, by claiming that decisions adopted following the recommendations of the Investigation Panel in the context of the procedures relating to the Dignity at Work Policy could not be subject to a conciliation procedure (see paragraph 55 above), even though only disciplinary proceedings were expressly excluded from the scope of the disputes which may be subject to such a procedure, the President of the EIB disregarded the provisions of Article 41 of the EIB Staff Regulations, in the version in force at the time, by introducing a restriction which those regulations did not provide for. In that regard, the EIB confirmed moreover, at the hearing, that certain decisions adopted in the context of the procedures relating to the Dignity at Work Policy had been subject to a conciliation procedure. 117 It follows that the first condition for the EIB to incur liability, namely the unlawfulness of the conduct complained of, is satisfied. 118 Accordingly, the applicant lost the opportunity to settle the dispute amicably since her request for conciliation was rejected on unlawful grounds, causing her damage. 119 In the present case, however, it is impossible for the Court to determine a mathematical coefficient reflecting the loss of opportunity suffered, first, because that opportunity has no connection with the applicant’s salary and, second, because the applicant has failed to submit to the Court detailed evidence on which to determine that coefficient, with the applicant, in particular, stating merely that she had lost an opportunity to have her situation reviewed. 120 Therefore, making use of the Court’s power to assess the damage suffered ex æquo et bono, it is appropriate to award the applicant a fixed sum in compensation for the loss of opportunity that she suffered as a result of the failure on the part of the EIB to initiate a conciliation procedure, when such a procedure should have been initiated pursuant to Article 41 of the EIB Staff Regulations, in the version in force at the material time. 121 In assessing the amount of that compensation, it is necessary to take into account the fact that the mere existence of a chance, even if only slight, for the applicant to have the claims set out in her complaint upheld following a conciliation procedure is sufficient to establish the existence of damage for which appropriate compensation can be awarded. 122 In the light of the foregoing, the Court makes an ex æquo et bono assessment of the compensation to be awarded to the applicant in respect of the damage resulting from the loss of an opportunity to have her complaint reviewed owing to the failure on the part of the EIB to initiate a conciliation procedure at the fixed sum of EUR 1 000. 123 Having regard to all the foregoing considerations, the Court must annul the contested decision, order the EIB to pay the applicant the sum of EUR 1 000 in respect of the loss of opportunity to settle the dispute amicably, and dismiss the action as to the remainder. Costs 124 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. 125 Since the EIB has been largely unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the applicant. On those grounds, THE GENERAL COURT (First Chamber) hereby: 1. Annuls the decision of 20 June 2019 of the President of the European Investment Bank (EIB); 2. Orders the EIB to pay HB the sum of EUR 1 000 in respect of the loss of opportunity to settle the dispute amicably; 3. Dismisses the action as to the remainder; 4. Orders the EIB to bear its own costs and to pay those incurred by HB. Kanninen Półtorak Stancu Delivered in open court in Luxembourg on 15 December 2021. E. Coulon Registrar President Table of contents Background to the dispute The content of the complaint concerning psychological harassment The investigation procedure The investigation report The contested decision Procedure and forms of order sought Law Claim for annulment of the contested decision The statement of reasons for the contested decision The third plea: breach of the right to be heard and of the principle of confidentiality The claim for damages Compensation for non-material harm that can be separated from the unlawfulness affecting the contested decision Compensation for the damage resulting from the loss of an opportunity to settle the dispute amicably Costs * Language of the case: English. i In accordance with the rules on the protection of personal data in the context of the judicial functions of the General Court, a piece of information has, by decision of the Registrar, been redacted from the public version of the judgment and replaced by the reference [personal data] 1 Confidential information redacted.