Opinion of the Advocate General — ECLI:EU:C:2020:44
Date: 2020-01-29
Language of the case: French
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases;Action for damages;Appeal - successful

summary, at the very least, of the statements made by the person accused of harassment and the various witnesses heard during the investigation procedure. The Court noted that that was the case as the statements had been used in the report provided to the President of the European Investment Bank and contained recommendations on which the President had based the decision to reject the complaint. (19) 61. I take the view that those findings are fully applicable to the present case. 62. To the extent that records of witness hearings were taken into account by the AECE for the purpose of adopting the decision at issue, it was important that HF be given the opportunity to state her position on those records. 63. It must therefore be determined whether the protection of the confidentiality of those testimonies could impose limits on the disclosure of evidence to HF. 64. In that regard, I note that the Court found in paragraph 57 in the judgment in OZ v EIB that the statements of persons who had been heard should have been disclosed ‘while respecting, if necessary, legitimate expectations as regards confidentiality’. (20) 65. Article 41(2)(b) of the Charter, which is linked to the right to be heard, guarantees the right of every person to have access to his or her file, while nevertheless respecting the legitimate interests of confidentiality and business secrecy. 66. However, confidentiality does not mean a right to secrecy. Even where State security is at stake, the Court has recognised the need for the interested party to be informed of at least the essence of the grounds of a decision so that his or her right of defence is respected. (21) 67. The General Court found in paragraph 83 of the judgment under appeal that it is permissible for the administration to provide for the possibility of assuring witnesses who agree to provide their accounts of the facts at issue in an alleged case of harassment that their testimony will remain confidential vis-à-vis both the alleged harasser and the alleged victim, at least in the context of the procedure followed for handling a request for assistance within the meaning of Article 24 of the Staff Regulations. 68. I am of the opinion that witnesses who voluntarily agree to participate in the inquiry procedure may indeed not want their identity to be revealed or to be identifiable from the facts reported. 69. This concern seems to me to be legitimate, regardless of the witnesses’ motives, and must be taken into account by the administration to the extent possible, if only to ensure that persons who may provide information that is useful in order to establish the facts participate in the inquiry. 70. However, a balance must be struck between the witnesses’ interest in protecting the confidentiality of their evidence and the right of the party who made the request for assistance effectively to make known their point of view on the content of that evidence. That party must not be deprived of knowledge of the evidence on which the administration intends to base its decision rejecting his or her request for assistance. 71. To that end, certain techniques may be used, such as anonymisation, or, as was suggested in the judgment in OZ v EIB, the disclosure of the substance of the witness statements in the form of a summary or, in the further alternative, as was done in the present case during the proceedings before the General Court, the redaction of some of the content of those statements. 72. It appears to me that confidentiality could have been ensured in the present case before the AECE adopted the decision at issue by using the same anonymisation and redaction techniques as those used during the proceedings before the General Court. 73. Given that the opinion of the Advisory Committee was brief, it was particularly important that an anonymised version of the records be disclosed, with only certain parts redacted, as was ordered by the General Court. 74. First, that opinion consisted of a mere two pages containing an anonymised list of the witnesses heard and three bullet points briefly describing the Advisory Committee’s point of view. Second, as the General Court itself observed in paragraph 89 of the judgment under appeal, that brevity was made up for by the records of witness hearings to which the AECE was able to refer in order to gain an overall, detailed view of the accuracy of the allegations made. 75. In that regard, it is not sufficient for HF to be provided with the grounds on which the AECE intended to rely on in support of its rejection of her request for assistance. As HF argued at the hearing before the Court, the obligation to give the reasons for a decision adversely affecting her must not be confused with the right of the party concerned to be heard. (22) That right requires that the party who made the request for assistance should also have access to the oral evidence on which the AECE relied, while respecting confidentiality, so that that party can state whether the evidence found during the inquiry was relevant and whether, in his or her opinion, other evidence should have been taken into account. 76. Consequently, in my opinion the General Court erred in law when it found in paragraph 87 of the judgment under appeal that the AECE did not infringe the right to be heard, as referred to in Article 41 of the Charter, when, in the present case, it refused to disclose the records of the witness hearings to HF at the pre-litigation stage. As the decision rejecting HF’s request for assistance adversely affects her, I take the view that the evidence relied on by the Parliament when taking that decision — namely witness hearings — should have been disclosed to HF, at least in an anonymised format in the form of a summary, so that her position regarding that evidence could be properly heard before the Parliament took its decision. That error must be regarded as possibly having had an effect on the decision at issue. 77. It follows that the first ground of appeal must be upheld. 78. Consequently, the judgment under appeal should be set aside. 79. Although the merits of the first ground of appeal are sufficient in themselves to justify the setting aside of the judgment under appeal, I take the view that it is also necessary to examine the third ground of appeal raised by HF as it relates to the substance of the dispute and could, to the benefit of HF, constitute a second ground justifying the setting aside of the judgment under appeal. C. Third ground of the main appeal 80. By her third ground of appeal, HF argues that the General Court infringed Article 12a(1) and (3) and Article 24 of the Staff Regulations, and Article 31(1) of the Charter when it found, in paragraphs 158, 164 and 166 of the judgment under appeal, that the conduct of the head of unit was not improper and that the Parliament was entitled to reject her request for assistance and had not made an error of assessment. She alleges that the General Court contradicted itself and made assessments that run counter to its own case-law. 81. In support of that ground, HF relies on four arguments, which I shall examine in the following order: first, the first and fourth arguments, which I consider inadmissible, as, in my view, they concern assessments of fact; then, the third argument, which I consider manifestly unfounded; and, finally, the second argument which, for me, raises a matter of law which I shall examine in greater depth. 82. By its first argument, HF maintains that it follows from the General Court’s findings in paragraphs 141, 143, 144, 158 and 163 of the judgment under appeal, which concern the head of unit’s use of an inappropriate tone which was sometimes a little familiar or unstructured, his poor, indeed on occasions inept, handling of a conflict situation and his particularly direct, forthright and even sarcastic or somewhat aggressive conduct, that the head of unit behaved improperly. Following those findings, according to HF, the General Court was not entitled to conclude that there was no psychological harassment. 83. I note that HF does not criticise the General Court’s description of the facts, but instead draws a different conclusion from them. She argues that, given the definition of psychological harassment in Article 12a(3) of the Staff Regulations, as noted in paragraph 119 of the judgment under appeal, that description meant that the Court should have concluded that psychological harassment had occurred. 84. In that regard, the concept of psychological harassment is defined in Article 12a of the Staff Regulations as any improper conduct that takes place over a period, is repetitive or systematic and involves physical behaviour, spoken or written language, gestures or other acts that are intentional and that may undermine the personality, dignity or physical or psychological integrity of any person. The General Court makes two specific points about the definition in paragraphs 119 and 120 of the judgment under appeal. First, the words ‘over a period’ and ‘repetitive or systematic’ suggest that psychological harassment must be understood as a process that occurs over time and presuppose the existence of behaviour which is ‘intentional’, as opposed to ‘accidental’. Second, in order to fall under that definition, such behaviour must ‘have the effect’ of undermining the personality, dignity or physical integrity of a person. It is not necessary to establish that when the alleged harasser behaved in that way, he or she had the intention of producing such an effect. 85. In my opinion, those specific points, which reflect the settled case-law of both the General Court and the Civil Service Tribunal, (23) are entirely well founded. 86. I would observe that it is not apparent from that definition of psychological harassment that where certain facts are established it can automatically be inferred that such harassment has occurred. A finding of psychological harassment must, on the contrary, follow from a careful assessment of the facts involving an examination of, first, whether it is possible to conclude from the alleged behaviour taken in isolation that psychological harassment has occurred and, second, where appropriate, whether that behaviour, seen as a whole, leads to such a finding. 87. In the absence of any distortion of the facts or manifest error of assessment, which is not alleged by HF, it is for the General Court, in the present case, to assess whether the facts found constitute psychological harassment within the meaning of Article 12a(3) of the Staff Regulations. The Court cannot substitute its assessment of the facts for that of the General Court. (24) 88. In order to carry out that assessment, it is for the General Court to apply the test referred to — correctly, in my opinion — in paragraph 121 of the judgment under appeal, according to which the classification of such conduct as ‘harassment’ is subject to the condition of its being sufficient, when viewed objectively, to be considered real, in the sense that an impartial and reasonable observer, of normal sensitivity and in the same situation, would consider the behaviour or act in question to be excessive and open to criticism. (25) 89. By her first argument, HF in fact seeks to have the Court of Justice reject the General Court’s assessment of the facts and substitute its own assessment for that of the General Court. 90. I therefore consider that the first ground of appeal is inadmissible. 91. By her fourth argument, HF argues that, in paragraphs 156 and 160 of the judgment under appeal, the General Court erred by finding that the conduct of the head of unit could not fall within the scope of Article 12a(3) of the Staff Regulations on the ground that that conduct affected all the staff in that unit and was not directed exclusively at HF. She claims that the General Court’s reasoning is contrary to that applied in paragraph 89 in the judgment in Tzirani v Commission. (26) 92. To my mind, HF is misreading paragraphs 156 and 160 of the judgment under appeal and has misinterpreted the judgment in Tzirani v Commission. 93. The General Court did not infer solely from the collective nature of the threat that such a threat could not fall within the scope of Article 12a(3) of the Staff Regulations. While taking into account that threat, it found, in paragraph 156 of the judgment under appeal, that HF had nevertheless failed to establish that the head of unit had actually made a threat directed specifically at her concerning the renewal of her employment contract. 94. In the judgment in Tzirani v Commission, the Civil Service Tribunal found that ‘in order to avoid accusations of harassment of one person, the presumed harasser, rather than putting an end to the alleged conduct, could extend his behaviour to include a greater number of persons, which is clearly absurd’. That tribunal thus found that a person could not, while purporting to make a collective threat to a group of people, disguise what was in reality conduct directed at a particular individual. However, I note that it does not follow that every collective criticism is in fact a criticism aimed at a particular individual. 95. Once again, this is a question of fact. It is not apparent from paragraph 156 of the judgment under appeal, which refers to paragraph 135 thereof, that the General Court has distorted the facts. 96. To my mind, the fourth argument must therefore be rejected as inadmissible because, like the first argument, in reality it does not concern a point of law but relates to an assessment of the facts by the General Court. 97. By her third argument, HF argues that, in paragraphs 141 and 158 of the judgment under appeal, the General Court errs when it describes certain gestures and written language of the head of unit as ‘accidental’. HF claims that while certain spoken language can be accidental, the same cannot be said, in practical terms, for gestures and written language. 98. By claiming that the latter cannot be ‘accidental’, HF proposes, to my mind, an interpretation of the term ‘accidental’ which is without basis. Much like spoken language, gestures can be quick and fleeting in nature and can be made before the thought process has been completed. While it does indeed take longer to produce written language, nothing prevents such language also from being produced before the thought process of the author has been completed. This is precisely why the definition in Article 12a(3) of the Staff Regulations states that not only spoken language, but also gestures and written language must take place over a period, be repetitive or systematic in order to constitute psychological harassment. 99. By that argument, HF seeks to have the Court recharacterise the gestures and written language of the head of unit as ‘intentional’ rather than ‘accidental’, without even attempting to substantiate that assertion with facts. Thus, she claims that gestures are intentional by their very nature. For the reasons set out in the previous point of this Opinion, that argument seems to me to be manifestly unfounded. 100. By her second argument, HF contends that the General Court erred when it took into account the ‘context’ of the unit in paragraphs 143, 144, 158 and 159 of the judgment under appeal, despite harassment being unconditionally prohibited, regardless of the context. By taking that ‘context’ into account, while recognising that the conduct of the alleged harasser was at the very least inappropriate, the General Court must have infringed Article 12a(3) of the Staff Regulations and Article 31 of the Charter. 101. In its response, the Parliament claims that the context in which the alleged conduct occurred is of fundamental importance. 102. The second argument shows, to my mind, how difficult it can be to distinguish what constitutes an assessment of the facts — for which, with the exception of distortion or a manifest error of assessment, the General Court has exclusive jurisdiction — from what constitutes a point of law, which can be subject to review by the Court of Justice. 103. To the extent that the context is fundamentally linked to the facts of the case, the context is principally something to be assessed along with those facts. Moreover, HF did concede during the hearing before the Court that it was not possible entirely to ignore the context of the case. 104. However, according to HF, the lack of staff, the heavy workload, the reorganisation of the service and the unequal allocation of duties within the unit should not be taken into account. She argues that taking them into consideration amounts to adding a factor not included in the definition of psychological harassment in Article 12a(3) of the Staff Regulations, which is then used in order to remove certain improper conduct from the notion of psychological harassment by justifying it on the basis of the context in which it occurred. 105. When seen from this perspective, the question of whether certain types of facts may, may not or may only to a certain extent be taken into account when assessing psychological harassment is, to my mind, a point of law. What must be determined is whether and to what extent the factual context plays a role in the legal characterisation of psychological harassment. 106. In that regard, as the General Court rightly stated in paragraph 123 of the judgment under appeal, the definition laid down in Article 12a of the Staff Regulations is an objective concept which is based on a ‘contextual classification’ of the actions and behaviour of third parties — in the present case officials and other members of staff. Consequently, the question of whether a person has been subjected to a situation entailing psychological harassment requires the conduct concerned in a given context to be assessed. 107. Thus, an objective assessment of the alleged conduct cannot be carried out in a purely abstract manner and, consequently, without any knowledge of the context, but instead requires a specific examination taking into account the background against which the conduct occurred. That interpretation is borne out by the test described in point 88 of this Opinion, which refers to an impartial and reasonable observer, of normal sensitivity and in the same situation. In my opinion, the latter expression means that it is necessary to take into account the context in which the conduct at issue occurred. 108. The question that remains is what context is relevant. 109. In my opinion, it is necessary to distinguish between context which is not caused by the alleged harasser — the head of unit in the present case — and context which results from or is generated by the attitude of the latter. 110. Taking the examples of context referred to by HF set out in point 104 above, it is appropriate to examine whether the lack of staff, the heavy workload and the reorganisation of the service were outside of the control of the head of unit and whether, conversely, he is responsible for the unequal allocation of duties within the unit. 111. To my mind, it is for the General Court to examine whether those examples are based on fact, and to decide in which category they should be classed and, if appropriate, what weight should be given to them. 112. In the present case, HF criticises the General Court for referring to the context in paragraphs 143, 144, 158 and 159 of the judgment under appeal. 113. I note that in those four paragraphs the General Court refers to the ‘difficult administrative context’, ‘the service’s operating difficulties following on from its restructuring’ and ‘the existence of organisational difficulties’. 114. If the difficulties found within the service were due to the personality of the head of unit, any lack of experience on his part or inept management, they could not, to my mind, be used to justify the behaviour at issue. On the contrary, they could be used to make clear the excessive or improper nature of that behaviour and to establish conduct constituting psychological harassment. 115. If, instead, those difficulties have their origin in the restructuring of the unit, which was not due to a decision of questionable management on the part of the head of unit, but which may, on the face of it, be objectively necessary, they should, in my opinion, be regarded as outside of his control. Where appropriate, they could also be taken into account and play a greater or lesser role in the assessment of the excessive or improper nature of the alleged behaviour. 116. I take the view, contrary to HF, that the General Court did not err in law when it referred to the context. 117. Therefore, it is my opinion that the second argument raised by HF is unfounded. 118. It follows that the third ground of the main appeal must, to my mind, be rejected as in part inadmissible and in part unfounded. D. The action before the General Court 119. In accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the decision of the General Court is set aside, the Court of Justice may itself give final judgment in the matter where the state of the proceedings so permits. 120. As the Court found in the judgment in OZ v EIB, I take the view that that is the case in the present instance. In that judgment, the Court noted that an infringement of the rights of the defence, in particular the right to be heard, results in the annulment of the decision taken at the end of a procedure only if, had it not been for such an irregularity, the outcome of the procedure might have been different. (27) The Court found that the failure to disclose at the very least a summary of the statements of the person accused of harassment and of the various witnesses inevitably affected both the content of the Investigation Panel’s report and that of the decision at issue in that case, so that it is reasonable to conclude that that report and that decision could have had a different outcome. (28) 121. I am of the opinion that the failure to disclose the records of the witness hearings in the present case must in itself be regarded as an irregularity capable of affecting the opinion of the Advisory Committee and, consequently, the decision at issue in a similar way. 122. As I pointed out in points 62 and 73 above, those records were taken into account by the AECE when it adopted the decision at issue and their role was particularly important given that the opinion was only brief. 123. I note in particular that if HF had been given the opportunity to be heard properly regarding the various contextual factors, as set out in the records of the witness hearings that were taken into account by the AECE, it is entirely possible that a different weight would have been given to them that would have led the AECE to grant the request for assistance made by HF. 124. Regarding the head of claim seeking compensation in point 26 above, I take the view that, regardless of the second ground of appeal and without prejudice to its merits, the annulment of the decision at issue constitutes sufficient compensation for any non-material damage that HF may have suffered in the present case. The head of claim seeking compensation for that non-material damage is therefore devoid of purpose and there is no need to adjudicate on it. E. Costs 125. Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs. 126. In accordance with Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 127. Since the Parliament has essentially been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by HF relating, in accordance with the form of order sought by the latter, to both the proceedings at first instance and the appeal proceedings. VI. Conclusion 128. In the light of the above considerations, I propose that the Court: – dismiss the cross-appeal as inadmissible; – set aside the judgment of the General Court of the European Union of 29 June 2018, HF v Parliament (T‑218/17, EU:T:2018:393) in so far as it rejects the form of order sought by HF requesting that the decision of the European Parliament of 3 June 2016 rejecting her request for assistance be annulled; – dismiss the appeal as to the remainder; – annul the decision of 3 June 2016 rejecting HF’s request for assistance; – dismiss the action as to the remainder; – order the Parliament to bear its own costs and to pay those incurred by HF in the proceedings at first instance and the appeal proceedings. 1 Original language: French. 2 T‑218/17 (‘the judgment under appeal’), EU:T:2018:393. 3 Judgment of 4 April 2019, OZ v EIB (‘the judgment in OZ v EIB’) (C‑558/17 P, EU:C:2019:289, paragraph 53). 4 See paragraphs 1 to 33 of the judgment under appeal. 5 Judgment of 11 July 2013 (F‑46/11, EU:F:2013:115; ‘the judgment in Tzirani v Commission’). 6 Judgment of 23 September 2015 (T‑114/13 P, EU:T:2015:678). 7 See judgments of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa (C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraphs 43 and 44); of 13 January 2015, Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht (C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraphs 32 to 34); of 21 April 2016, Council v Bank Saderat Iran (C‑200/13 P, EU:C:2016:284, paragraphs 114 and 115) and of 25 July 2018, Société des produits Nestlé and Others v Mondelez UK Holdings & Services (C‑84/17 P, C‑85/17 P and C‑95/17 P, EU:C:2018:596, paragraphs 41 and 42). 8 See point 31 of this Opinion. 9 See point 39 of this Opinion. 10 See Article 41(2)(a) of the Charter. 11 See Article 41(2)(b) of the Charter. 12 See Article 41(2)(c) of the Charter. 13 See judgments of 24 October 1996, Commission v Lisrestal and Others (C‑32/95 P, EU:C:1996:402, paragraph 21); of 18 December 2008, Sopropé (C‑349/07, EU:C:2008:746, paragraphs 36 to 38); of 22 November 2012, M. (C‑277/11, EU:C:2012:744, paragraph 87); of 10 September 2013, G. and R.(C‑383/13 PPU, EU:C:2013:533, paragraph 35); of 22 October 2013, Sabou (C‑276/12, EU:C:2013:678, paragraph 38); of 5 November 2014, Mukarubega (C‑166/13, EU:C:2014:2336, paragraph 46) and of 11 December 2014, Boudjlida (C‑249/13, EU:C:2014:2431, paragraph 36). 14 See judgment of 9 February 2017, M (C‑560/14, EU:C:2017:101, paragraph 32). 15 See judgment of 5 November 2014, Mukarubega (C‑166/13, EU:C:2014:2336, paragraph 47). 16 See judgment of 22 November 2012, M. (C‑277/11, EU:C:2012:744, paragraph 82). 17 See, to that effect, judgment of 18 December 2008, Sopropé (C‑349/07, EU:C:2008:746, paragraphs 36 and 37). 18 See footnote 3 of this Opinion. I note that that judgment was delivered after the judgment under appeal. 19 See the judgment in OZ v EIB, paragraph 57. 20 See also, with regard to the right to be heard in a procedure involving the European Commission, inter alia, the judgment of 21 November 1991, Technische Universität München (C‑269/90, EU:C:1991:438, paragraph 25). 21 See, to that effect, judgment of 4 June 2013, ZZ (C‑300/11, EU:C:2013:363, paragraphs 64, 65 and 68). 22 The obligation to give reasons is one of the aspects of the right to good administration enshrined in Article 41(2)(c) of the Charter. 23 See, inter alia, judgments of 13 December 2017, HQ v CPVO (T‑592/16, not published, EU:T:2017:897, paragraph 101); of 17 September 2014, CQ v Parliament (F‑12/13, EU:F:2014:214, paragraphs 76 and 77); of 5 June 2012, Cantisani v Commission (F‑71/10, EU:F:2012:71, paragraph 89) and of 13 July 2018, Curto v Parliament (T‑275/17, EU:T:2018:479, paragraphs 76 and 77). 24 Under Article 256 TFEU, appeals before the Court of Justice lie on points of law only. Consequently, the appellant cannot seek to have the Court of Justice substitute its own assessment for that of the General Court. According to settled case-law, the General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence adduced. The appraisal of those facts and the assessment of that evidence thus does not, save where they distort the facts or evidence, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, inter alia, judgments of 26 January 2017, Zucchetti Rubinetteria v Commission, C‑618/13 P, EU:C:2017:48, paragraph 68, and of 13 December 2018, European Union v Kendrion, C‑150/17 P, EU:C:2018:1014, paragraph 79). 25 That test follows the settled case-law of the Civil Service Tribunal and of the General Court. See, inter alia, judgments of 16 May 2012, Skareby v Commission (F‑42/10, EU:F:2012:64, paragraph 65); of 17 September 2014, CQ v Parliament (F‑12/13, EU:F:2014:214, paragraph 78) and of 13 July 2018, Curto v Parliament (T‑275/17, EU:T:2018:479, paragraph 78). 26 See footnote 5 of this Opinion. 27 See the judgment in OZ v EIB, paragraph 76. 28 See the judgment in OZ v EIB, paragraph 78.