Judgment — ECLI:EU:T:2018:478
Date: 2018-07-13
Language of the case: French
Court formation: First Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Action for damages - successful;Action for damages - unfounded;Staff cases - successful

summary dismissal for grave misconduct, with or without severance grant’ and ‘summary dismissal for grave misconduct with loss of severance grant and reduction of pension rights’. 131 In that regard, contrary to the Bank’s assertions, in the light of the wording of Article 38 of the EIB Staff Regulations, the taking of a measure by the President of the Bank does not require, in all cases, that the matter be brought before the Joint Committee. – Nature and adequacy of the measures taken in the present case of proven psychological harassment 132 In this case, the Investigation Panel recommended the initiation of disciplinary proceedings, but only if the new director were again to disregard the prohibition of psychological harassment within the Bank. As the President of the Bank endorsed that recommendation of the Investigation Panel, it must be examined whether, as the applicant submits, it could be implemented by him in the instant case. 133 The question therefore arises as to the discretion enjoyed by the President of the Bank in determining the measure or measures he must take where the Investigation Panel has made a finding of psychological harassment as well as whether the measures adopted in this case were appropriate. 134 In that respect, since the body of rules applicable to the Bank does not make provision for a similar concept, the Court must be guided, in the light of the similar objectives pursued by Article 3.2.1 of the Code of Conduct and Article 12a of the EU Staff Regulations, by the case-law concerning the duty to provide assistance under Article 24 of the EU Staff Regulations, according to which, first, ‘the Union shall assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties’ and ‘it shall jointly and severally compensate the official for damage suffered in such cases, in so far as the official did not either intentionally or through grave negligence cause damage and has been unable to obtain compensation from the person who did cause it’. 135 Concerning the officials and other members of staff covered by the texts referred to in Article 336 TFEU, it is settled case-law that as regards the measures to be taken in a situation falling within the scope of Article 24 of the EU Staff Regulations, the administration enjoys a broad discretion — subject to review by the EU judicature — regarding the choice of measures and methods for implementing Article 24 of the EU Staff Regulations (judgments of 25 October 2007, Lo Giudice v Commission, T‑154/05, EU:T:2007:322, paragraph 137; of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraph 48; and of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 89). 136 In addition, so far as harassment is concerned, as a general rule the institution cannot take disciplinary or other action against an alleged harasser (whether or not he is an immediate superior of the purported victim) unless the preliminary measures ordered under Article 24 of the EU Staff Regulations clearly establish that the person accused by the official or staff member has engaged in conduct detrimental to the proper functioning of the service or to the dignity and reputation of the purported victim (judgments of 9 November 1989, Katsoufros v Court of Justice, 55/88, EU:C:1989:409, paragraph 16; of 28 February 1996, Dimitriadis v Court of Auditors, T‑294/94, EU:T:1996:24, paragraph 39; and of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 90). 137 Based on those case-law considerations, it must be held that for the purpose of implementing the Dignity at Work Policy, the President of the Bank enjoys a broad discretion in defining the measures to be taken in response to the Investigation Panel’s report. 138 In the present case, the President of the Bank did not consider it necessary to impose a written reprimand on the director in question. Indeed, the Bank has not argued in its defence that the statement that disciplinary proceedings would be initiated against the director should he reoffend within three years should be construed as a reprimand, or that that statement was made in writing and included in the administrative file of the new director. Furthermore, it is common ground that the President of the Bank did not decide to bring the matter before the Joint Committee immediately under Articles 38 and 40 of the EIB Staff Regulations. 139 Thus, in short, in response to a case which he found to involve psychological harassment, the President of the Bank merely told the person who had submitted a complaint under that policy that the member of staff who had harassed her had been informed that disciplinary proceedings would be initiated against him if he were to reoffend within three years. 140 The Court observes, first, that such a measure, applicable only if the interested person reoffends, means that the penalty for proven psychological harassment would be dependent on a fresh finding of improper conduct even though that finding would be conditional on the uncertain decision of the new victim whether or not to submit a complaint under the Dignity at Work Policy. 141 In addition, in light of the objectives pursued by the Code of Conduct and the Dignity at Work Policy and, in particular, the inherent seriousness of all acts of psychological harassment as asserted in those texts adopted by the Bank, it must be held that, in the circumstances of the present case, the measures adopted by the President of the Bank were insufficient and, therefore, inappropriate having regard to the seriousness of the instant case, at least as regards the immediate response to be given to the conduct already identified by the President of the Bank as constituting psychological harassment. 142 Therefore, without prejudice to the fresh overall examination that the Bank will have to carry out in the light of the Court’s findings in relation to the first plea, and without it being necessary to rule on whether the Investigation Panel should have attached greater weight when drawing up its recommendations to the alleged complaints of four other members of staff to the Bank’s medical service and, furthermore, whether such claims constitute a complaint that is personal to the applicant within the meaning of the case-law which does not confer on officials and other members of staff a right to sue in the interests of the law or of the staff of an EU institution or agency (see, to that effect, judgment of 28 April 2017, HN v Commission, T‑588/16, not published, EU:T:2017:292, paragraph 90 and the case-law cited), the second plea in law must be upheld. Third plea in law alleging errors of law and manifest errors of assessment as regards the duty of the applicant, in her capacity as victim, to keep the contested decision confidential 143 In support of the third plea, the applicant claims that the Bank was not entitled to require her to keep the existence and content of the contested decision confidential, including with respect to the senior managers of the Bank. 144 She concedes that when a complaint is submitted, the Dignity at Work Policy applies a duty of confidentiality to the victim, the alleged harasser, the witnesses and other participants in the procedure. She states that it is reasonable to protect the reputation of the different protagonists until the facts have been established. However, the applicant argues that once the investigation procedure has been completed, no legal provisions entitle the President of the Bank to require the silence of the person found to be a victim of psychological harassment, as this would encourage the protection of the reputation of the person against whom allegations have been made despite a finding that he committed acts of psychological harassment. 145 Thus, according to the applicant, it is inherent in the Dignity at Work Policy that the person found to be a victim of psychological harassment or, conversely, the person against whom allegations have been wrongfully made should be able to rely on the outcome of the investigation procedure. As for the victim, the same applies inter alia in relation to the restitution of that person’s professional integrity and psychological equilibrium. However, that is necessarily dependent on the recognition by all parties of the merits of the complaint and the suffering to which the victim was exposed. In the present case, the applicant has, in particular, an interest in explaining to her next immediate superior or next employer the objective reasons why she was a victim of burnout and had to interrupt her career by means of LPG lasting two years. That is supported by paragraphs 257 and 258 of the judgment of 5 December 2012, Z v Court of Justice (F‑88/09 and F‑48/10, EU:F:2012:171). 146 The Bank’s requirement to keep the contested decision confidential is also a manifest error of assessment since that decision contributes to promoting psychological harassment at the Bank, even though, in the light of the applicable rules, the onus is on the EIB, also in terms of its duty of care and duty to have regard for the welfare of staff, to ensure that the existence of this case of psychological harassment is made known, so that other potential victims can make their voices heard, including, in the present case, the four other members of the department in question who confided in the Bank’s medical adviser on that issue. 147 The Bank contends that in so far as the third plea seeks the annulment of the decision of 10 April 2017, it should be rejected as inadmissible. In any event, the fact that the applicant was reminded of the issue of confidentiality in that letter cannot lead to the annulment of the contested decision because it is an act subsequent to that decision and is incidental to and separable from it. In addition, that basic reminder of the applicant’s duty of confidentiality did not involve the imposition of a new duty of confidentiality and, in any case, was justified here. 148 It should be recalled that the legality of the contested measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (judgments of 7 February 1979, France v Commission, 15/76 and 16/76, EU:C:1979:29, paragraph 7; of 17 May 2001, IECC v Commission, C‑449/98 P, EU:C:2001:275, paragraph 87; and of 28 July 2011, Agrana Zucker, C‑309/10, EU:C:2011:531, paragraph 31). 149 In this instance, as the applicant rightly points out, the contested decision bears the words ‘strictly confidential’ in capital letters. However, it cannot be immediately inferred from those words that the President of the Bank sought to prohibit the applicant from disclosing the existence and content of that decision to other members of staff. 150 In order to understand the implications of those words in the contested decision, reference must be made to both Article 9 of the EIB Staff Regulations and to the investigation procedure under the Dignity at Work Policy. Article 9 provides that, as regards persons external to the Bank, ‘members of staff shall not, without prior permission, communicate or divulge any information or documents … relating to the Bank or its activities’. The Dignity at Work Policy states that ‘all parties involved in the investigation and hearings, including [the] assistants and witnesses, … shall be subject to the duty of confidentiality’. It also provides that ‘in order to protect all parties concerned, documentation shall be stored in strict confidentiality and information will be disclosed only if absolutely necessary’. 151 Thus, it must be acknowledged that by affixing to the contested decision the words ‘strictly confidential’ in capital letters, the President of the Bank sought to prevent the applicant, in the light of the abovementioned provisions, from disclosing the existence and content of the contested decision both to persons external to the Bank and to other members of staff and senior managers of the Bank. That finding is essentially in line with the Bank’s arguments in the defence. 152 Contrary to the assertions of the applicant, that finding is not necessarily supported by the fact that, in the letter of 10 April 2017 — containing the words ‘personal and confidential’ in capital letters, but which the applicant does not, however, seek to be annulled in this case — it was found that the applicant could be considered to have infringed the rules on confidentiality by sending the email of 6 February 2017, the subject matter of which was ‘highly confidential in that, inter alia, it affect[ed] the professional reputation of a member of staff of the EIB’, to multiple recipients. On that date, the procedure before the Investigation Panel was ongoing. Accordingly, on that date, the applicant was bound by the duty of confidentiality laid down in the Dignity at Work Policy while the investigation procedure was ongoing and even when she intended to address only the issue of the whistleblowing report she had submitted under the Whistleblowing Policy. 153 On the other hand, the content of the letter of 9 May 2017 confirms that by affixing the words ‘strictly confidential’ to the contested decision, the President of the Bank intended to prevent the applicant from disclosing the existence and content of the contested decision both to persons external to the Bank and to other staff members and senior managers of the Bank. In the letter of 9 May 2017, the applicant was reminded that, as she was aware, all documents relating to the dignity at work procedure had to be treated with the strictest confidentiality and that the letter of apology from the new director, drawn up in compliance with the contested decision, should not be disclosed or disseminated to third parties by the applicant. 154 It is therefore necessary to determine whether the President of the Bank or its departments were entitled to give the contested decision and the letter of apology from the new director a level of confidentiality the result of which was to prevent the applicant from disclosing to third parties the existence and content of those documents. 155 In that regard, it should be noted that Article 3(d) of the investigation procedure under the Dignity at Work Policy states that, when a member of staff submits a complaint, that complaint ‘cannot be retracted and … the procedure must run its course’. 156 Conducting the administrative inquiry through to completion is important in particular because, should the Bank find that there has been psychological harassment upon completion of the administrative inquiry, which may have been conducted with the assistance of a separate department, such as the Investigation Panel, this in itself is likely to have a beneficial effect in the therapeutic process of recovery of an official or other member of staff who has been harassed and may also be used by the victim for the purposes of a national court action. On the other side of the equation, the conduct of an administrative inquiry through to completion may make it possible to disprove the allegations made by the purported victim, thereby making it possible to repair the damage which such an accusation, should it prove to be unfounded, may have caused to the person named as the alleged harasser by an inquiry procedure (see, by analogy, judgment of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraphs 123 and 124 and the case-law cited). 157 However, if a member of staff of the Bank who has been the victim of psychological harassment were required to stay silent as to the existence of such harassment, the effect would be, besides the fact that that person would no longer necessarily be able to cite illness relating to that psychological harassment to justify possible absences, that the interested party would not be able to rely on the findings made by the Investigation Panel and the President of the Bank in, respectively, the report and the contested decision, particularly in any action brought before a national court against the harasser. 158 Such an interpretation of the rules applicable to the Bank would be at odds with the objective underlying the Code of Conduct and the Dignity at Work Policy to prevent and punish all psychological harassment within the institutions and bodies of the European Union, even though psychological harassment, in so far as it affects the health and dignity of the victim, constitutes a breach of the rights of workers for the purpose of Article 31 of the Charter of Fundamental Rights of the European Union. 159 It follows from all of the foregoing considerations that the third plea must be upheld and, therefore, within the limits of the findings made in paragraphs 115 and 142 of this judgment and in the context of the consideration of the third plea, the contested decision must be annulled. Claims for compensation 160 The applicant makes three claims for compensation which should be examined in turn. 161 The Bank contends that those claims should be rejected, arguing that there was no fault on its part. Compensation for non-material damage suffered as a result of the harassment identified in the contested decision 162 According to the applicant, the psychological harassment by the new director caused her damage that the Bank is required to compensate, since the acts found to constitute psychological harassment by the Investigation Panel and the President of the Bank were engaged in by the new director in the performance of his duties. The applicant thus principally claims, as compensation for the damage to her reputation and health, which is evidenced by the medical certificate from her psychiatrist, EUR 121 992, corresponding to one year’s gross salary, that is to say half the salary she would have received if she had not been compelled to request two years’ LPG in order to distance herself from her harasser at the alleged time. 163 In the alternative, she submits that the amount of compensation claimed on account of the behaviour of the new director cannot be less than the performance bonus he received in 2015 and 2016, the years in which he psychologically harassed the applicant. Assessing the damage caused to her in that way would prevent the interested person being rewarded by the Bank for his wrongful acts which were recognised as such by the Investigation Panel and the President of the Bank. In order to decide on that alternative claim, the applicant asks the Court to order the EIB to disclose the amount of the performance bonus, either by way of a measure of organisation of procedure or at the hearing, which the applicant did not ultimately request. 164 The Bank contends that the claim for damages should be rejected, arguing that the applicant’s demands are not based on any credible medical evidence establishing a link between the identified harassment and the alleged damage to her health. It also maintains that it followed the applicable procedures and initiated them in good time. In particular, it states that the applicant has not demonstrated how the Bank was at fault. 165 It is to 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 1 June 1994, Commission v Brazzelli Lualdi and Others, C‑136/92 P, EU:C:1994:211, paragraph 42 and the case-law cited). 166 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 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 (judgments of 16 December 2010, Commission v Petrilli, T‑143/09 P, EU:T:2010:531, paragraph 46, not reviewed by judgment of 8 February 2011, Review Commission v Petrilli, C‑17/11 RX, EU:C:2011:55, and of 12 July 2012, Commission v Nanopoulos, T‑308/10 P, EU:T:2012:370, paragraph 103), 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. 167 Moreover, in so far as one of the three conditions, set out in paragraph 165 of this judgment, is not satisfied, the action must be dismissed in its entirety without it being necessary to examine the other conditions for non-contractual liability (judgment of 9 September 1999, Lucaccioni v Commission, C‑257/98 P, EU:C:1999:402, paragraph 14). 168 As regards the damage allegedly suffered by the applicant due to the acts of the new director, it should be pointed out that although those acts were committed by him in the performance of his duties, the fact remains that they are likely to trigger the personal liability of the person concerned in the context of an action brought by the applicant before the competent national court, even though, unlike the situation under Article 24 of the EU Staff Regulations, the rules applicable to the EIB do not lay down a duty to provide assistance requiring the Bank to assist the applicant, including financially, in her search for compensation and holding it jointly and severally liable, where appropriate, for damage caused by one of its members of staff to another (see, as regards the scope of the duty to provide assistance under Article 24 of the EU Staff Regulations, judgment of 12 December 2013, CH v Parliament, F‑129/12, EU:F:2013:203, paragraph 57). 169 Thus, the Bank cannot be held liable for the conduct of one of its members of staff towards another unless that conduct was ordered by a superior authority, which is not the case here. 170 It follows that the condition requiring the Bank’s conduct to be unlawful is not met as regards the damage allegedly suffered by the applicant on account of ‘psychological harassment’ attributable to the new director, damage that may, as such, be remedied by means of an action brought against the interested person before a national court. 171 Furthermore, the applicant cannot reasonably argue that the Bank failed in the implementation of its internal procedures when, in this case, it conducted the procedure established in the Dignity at Work Policy through to completion and, in the contested decision, although he did not draw all the necessary conclusions, the President of the Bank acknowledged the existence of psychological harassment in respect of some of the acts of which the new director was accused. 172 It follows that the applicant failed to prove that the Bank was at fault as regards the damage allegedly suffered on account of the new director’s psychological harassment of her. 173 In any event, the condition requiring a causal link between the fault and the alleged damage has also not been met in this case. 174 It is apparent from the file that the applicant put forward two grounds in her request for LPG, one of which concerned her desire to distance herself from the department in question during the investigation procedure. By contrast, it does not appear that she asked the Bank to be reassigned temporarily to another department, at least with the same duties, even though she had been willing, by way of an amicable settlement, to accept a promotion to a position in the head of unit function group in another department. 175 Thus, in view of the fact that the administration granted her request only on the other ground, namely to set up or join a business, it appears that her lack of income from the Bank for a period of two years, like the non-material damage in that regard, are the result of her decision to take LPG. 176 It follows from the foregoing that, without there being any need to consider the relevance of the information sought by the applicant concerning the amount of the performance bonus received by the new director, the claims for compensation in respect of non-material damage resulting from the harassment identified in the contested decision must be rejected. Compensation for non-material damage separable from the unlawfulness affecting the contested decision 177 The applicant claims that she suffered non-material damage that can be separated from the unlawfulness affecting the contested decision and cannot be compensated in full by the mere annulment of that decision. 178 That non-material damage which she assesses ex aequo et bono at EUR 25 000 is the result of, first, the decision of the Investigation Panel and the President of the Bank not to investigate all of the improper conduct allegedly engaged in by the new director which was raised by four other members of the department in question; secondly, the Bank’s failure to take steps to restore the professional reputation of the applicant and, in particular, the prohibition, during the pre-litigation and litigation procedure, on disclosing to any person within the Bank that she was the victim of psychological harassment; thirdly, the feelings of injustice and distress suffered by her due to the fact that, in order for her rights to be recognised, she was forced to initiate those procedures, including the conciliation procedure; and fourthly, the fact that the new director apologised only belatedly. She also refers to the Bank’s reluctance to resolve the dispute amicably, since it was not willing to offer her a head of unit position in another department or compensation. 179 The Bank denies the existence of non-material damage that is separable from the alleged unlawfulness affecting the contested decision, stating, in particular, that it was under no obligation to initiate an investigation procedure concerning the four persons mentioned by the applicant as having been the victims of psychological harassment, since those persons did not file a complaint to that effect and the applicant has no legal interest in bringing proceedings in favour of third parties. Furthermore, given the level of detail and completeness of the applicant’s complaint, the Investigation Panel was under no obligation to investigate beyond the allegations made. As regards the applicant’s reputation and her duty to keep the contested decision confidential, the Bank fails to see how the applicant suffered non-material damage, particularly because the Bank is entitled to use internal or external remedies in cases of breach by members of its staff or by third parties of the rules on confidentiality applicable within it. As for the absence of any offer of a new position, the Bank notes that the applicant was on LPG and did not therefore intend to return to work in the short term, explaining why no offer of an alternative post was made. 180 It must be recalled that, according to settled case-law, the annulment of an unlawful measure, such as the contested decision, may constitute, in itself, appropriate and, in principle, sufficient compensation for any non-material damage which that measure may have caused. However, that would not be the case where the applicant shows that he 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, to that effect, judgments of 31 March 2004, Girardot v Commission, T‑10/02, EU:T:2004:94, paragraph 131; of 19 May 2015, Brune v Commission, F‑59/14, EU:F:2015:50, paragraph 80; and of 16 May 2017, CW v Parliament, T‑742/16 RENV, not published, EU:T:2017:338, paragraph 64). 181 In the present case, concerning the decision of the Investigation Panel and the President of the Bank not to investigate all of the improper conduct allegedly engaged in by the new director which was raised by four other members of the department in question, it should be observed that the President of the Bank enjoys a broad discretion in determining the measures necessary in a proven case of psychological harassment. 182 Thus, even though the measures specifically mentioned in the investigation procedure under the Dignity at Work Policy include ‘the making of additional enquiries in a specific work unit or department’, it cannot be found, in the light of the harassment identified in the contested decision and subject to a fresh examination of the case following the delivery of this judgment, that the President of the Bank overstepped the bounds of his discretion in the instant case by declining, at that stage, to extend the investigation to cover the behaviour of the new director towards persons other than the applicant. 183 As regards the prohibition on the applicant from disclosing the existence and content of the contested decision and of the letter of apology from the new director, it must be held that even though, during the investigation procedure, the applicant was subject to a duty of confidentiality, entailing the obligation to demonstrate moderation and care when sending emails to multiple recipients not directly involved in the investigation procedure or the whistleblowing procedure, the fact remains that the Bank was not entitled to require her, once the investigation procedure had been completed, to remain silent about the psychological harassment which the President of the Bank himself acknowledged she had suffered. 184 That unlawfulness affecting the contested decision imposed a period of unwarranted silence on the applicant, with the result that the prohibition on talking about the issue caused her non-material damage which cannot be compensated in full by the mere annulment of the contested decision (see, to that effect, judgment of 7 February 1990, Culin v Commission, C‑343/87, EU:C:1990:49, paragraph 28). 185 In respect of the Bank’s alleged reluctance to resolve the dispute amicably, it must be stated that regardless of the existence of the conciliation procedure under Article 41 of the EIB Staff Regulations, a victim of psychological harassment cannot be entitled to require an institution to compensate that psychological harassment, prohibited by the applicable provisions within the Bank, by the offer of a specific post or, in particular, a post such as head of unit that may be filled through a selection procedure based on the merits of candidates which is open to all members of staff of the institution. Similarly, even if, in order to calm the situation, the Bank might contemplate such a step, particularly in the context of the conciliation procedure, it was not required here to offer the applicant compensation in order to settle the dispute between her and the new director. 186 As for the letter of apology sent to the applicant on 9 May 2018, that is, less than two months after the contested decision, it is true that that letter could have been prepared and sent more quickly. However, the delay is a relative one and does not justify a finding that the Bank committed a wrongful act capable of giving rise to liability. 187 In the light of the foregoing considerations, the Court holds that, on a fair assessment of the non-material damage suffered by the applicant that cannot be compensated in full by the annulment of the contested decision, compensation should be set ex aequo et bono at EUR 10 000. Compensation for non-material damage resulting from alleged misconduct by the Head of Personnel 188 According to the applicant, by letter of 10 April 2017, the Head of Personnel committed two separate wrongful acts causing her damage for which she claims compensation. First, the wording of that letter indicates a failure to take account of Article 2 of the ‘Terms of reference’ of the Director General of Compliance, who is supposed to carry out his investigations independently of the other directorates-general and departments of the Bank. It shows that the Head of Personnel was aware of the progress made and the steps taken in the whistleblowing procedure and had assumed the powers of the President and Vice-Presidents of the Bank in monitoring the obvious shortcomings in that procedure. 189 Secondly, the applicant submits that the Head of Personnel made threats of retaliation to, or intimidated, her adviser and herself in terms of the dignity at work leaflet and the Whistleblowing Policy, actions which were capable of deterring her, as a victim of psychological harassment, from exercising her rights, particularly against her harasser. In the alternative, the applicant claims that the comments made by the Head of Personnel in the letter of 10 April 2017 infringed the Bank’s duty of care and duty to have regard for the welfare of staff, resulting from the Head of Personnel’s inquiries into what action could be taken against the applicant and her adviser. In that context, the applicant submits that the statements contained in that letter regarding a possible breach by her of her duties in respect of the confidentiality of the investigation procedure are not substantiated in the least and in actual fact are baseless. In particular, the applicant sees no reason why the information in her letter of 6 February 2017 should be confidential vis-à-vis the President and Vice-Presidents of the Bank, nor does she perceive any potential damage to the new director’s reputation, since he had been found guilty of conduct constituting psychological harassment against the applicant. 190 The applicant asserts that the actions of the Head of Personnel left her in a state of uncertainty and deep worry that contributed to a loss of confidence in the impartiality of the Bank, whose senior staff thereby demonstrated that they sought to protect the reputation of the new director whatever the cost rather than help the applicant restore her own professional reputation as a victim of psychological harassment. For those reasons, she claims a minimum amount of EUR 25 000 as compensation for the non-material damage she therefore suffered. 191 The Bank contends, as its main argument, that the claims for compensation relating to the letter of 10 April 2017 are inadmissible, since that letter, which concerns the whistleblowing procedure and is separate from the investigation procedure leading to the adoption of the contested decision, does not impose any duty of confidentiality in connection with that decision. It is not, therefore, a challengeable act and does not reflect the existence of a breach of administrative duty capable of giving rise to compensation. Thus, the claim for compensation in that respect is premature and, in any event, the Bank contends in the alternative that it is unfounded. 192 The Court recalls at the outset that contrary to the Bank’s submissions, the fact that the letter of 10 April 2017 is not an act adversely affecting the applicant does not mean that the claims for compensation in issue are inadmissible, as it is common ground that the applicant attributes to the EIB conduct capable of triggering its liability and that, moreover, under Article 41 of the EIB Staff Regulations, those claims are not dependent on the submission of claims for the annulment of that letter or on the admissibility of such claims for annulment. 193 Next, the Court considers that in any event, the claims for compensation must be rejected as to the substance, without it being necessary to determine whether those claims, covered by the second request for conciliation made by the applicant on 14 June 2017, comply with the requirement under Article 41 of the EIB Staff Regulations to submit the dispute to the conciliation procedure prior to the date of bringing the present action, namely 15 June 2017. 194 The Court finds that the first three paragraphs of the letter of 10 April 2017, co-signed by the Head of Personnel and the Director of the Employee Relations and Administration Department, are couched in general terms designed to reassure the applicant that the whistleblowing procedure was ongoing and that the Bank’s departments were endeavouring to comply with the applicable internal provisions. 195 Contrary to the applicant’s arguments, that general wording does not lead to the conclusion that the Head of Personnel failed to take account of the independence of the Director General of Compliance in the handling of the whistleblowing report she had submitted under the Whistleblowing Policy, nor does it permit the inference that the Head of Personnel was aware of the details of the progress made and measures taken in the whistleblowing procedure or that the Head of Personnel usurped the powers of the President and Vice-Presidents of the Bank in monitoring any obvious shortcomings in the whistleblowing procedure. 196 Concerning the fact that the Head of Personnel informed the applicant that the Bank reserved the right to examine the legal options for defending its interests, including those relating to compliance with the rules on confidentiality applicable within it, it should be noted that when the applicant sent her email of 6 February 2017 to multiple recipients, the investigation procedure initiated as a result of the complaint was ongoing, with the result that she was bound by a duty of confidentiality, even where she intended to refer to the whistleblowing report the procedure for which, moreover, is also subject to rules on confidentiality. 197 In those circumstances, even though the President of the Bank subsequently declared the applicant’s complaint to be well founded in part and, therefore, the sending of that email could not unjustifiably affect the new director’s professional reputation, the Head of Personnel was nonetheless reasonably entitled to draw the attention of the applicant and her adviser to the fact that the status of complainant in an investigation procedure concerning alleged psychological harassment, or the status of submitter of a whistleblowing report relating to conduct infringing the Code of Conduct, did not release her from the duties of confidentiality applicable across the board in order to guard against any undue damage to the professional reputation of all protagonists — the alleged victim, witnesses and the purported harasser — for the entire duration of the investigation procedure. 198 Finally, it is also not possible to infer from the content of the letter of 10 April 2017 that the Bank or its departments were biased in the handling of the applicant’s whistleblowing report, which was still ongoing when this action was brought. 199 In the light of all the foregoing considerations, the Court upholds the claims for annulment in part and the claims for compensation in part, ordering the Bank to pay the applicant EUR 10 000 in respect of non-material damage suffered. Costs 200 Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party. 201 In the circumstances of the present case, since the claims for annulment were upheld in all material respects and, by failing to nominate its member to the Conciliation Board within the period of one week referred to in Article 41 of the EIB Staff Regulations, the Bank obliged the applicant to exercise her right of action in order to enforce her rights effectively as regards those claims, the Bank should bear its own costs and be ordered to pay half the applicant’s costs. On those grounds, THE GENERAL COURT (First Chamber) hereby: 1. Annuls in part the decision of the President of the European Investment Bank (EIB) of 20 March 2017, in so far as it applies an incorrect definition of the concept of ‘psychological harassment’, does not provide for immediate disciplinary action in the event of a proven case of psychological harassment within the EIB, and imposes a duty of confidentiality on the addressee of that decision, contrary to the purposes of an investigation procedure concerning an alleged case of psychological harassment; 2. Dismisses the remainder of the claims for annulment; 3. Orders the EIB to pay to SQ, in respect of the non-material damage suffered, an amount of EUR 10 000; 4. Dismisses the remainder of the claims for compensation; 5. Orders the EIB to bear its own costs and to pay half of the costs incurred by SQ; 6. Orders SQ to bear half of her own costs. Pelikánová Nihoul Svenningsen Delivered in open court in Luxembourg on 13 July 2018. [Signatures] Table of contents * Language of the case: French. 1 Confidential data removed.