JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
13 July 2022
(*)
(Civil service – ECDC staff members – Psychological harassment – Request for assistance – Prior warnings – Article 31 of the Charter of Fundamental Rights – Article 24 of the Staff Regulations – Scope of the duty to provide assistance – Duty to have regard for the welfare of officials – Opening of an investigation – Reasonable time period – Liability – Unlawfulness)
In Case T‑864/19,
AI,
HV,
HW,
HY,
represented by L. Levi and A. Champetier, lawyers,
applicants,
v
European Centre for Disease Prevention and Control (ECDC), represented by J. Mannheim, acting as Agent, and by D. Waelbroeck and A. Duron, lawyers,
defendant,
THE GENERAL COURT (Seventh Chamber),
composed of R. da Silva Passos, President, L. Truchot and M. Sampol Pucurull (Rapporteur), Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure,
further to the hearing on 14 October 2021,
gives the following
Judgment
I.      Background to the dispute
1        By their action brought under Article 270 TFEU, lodged at the Registry of the General Court on 17 December 2019, the applicants, AI, HV, HW and HY, seek compensation for the harm which they claim to have suffered as a result, essentially, of the lack of an appropriate response from the European Centre for Disease Prevention and Control (ECDC) in relation to the conduct of A (‘the Head of Unit’) towards them between 2012 and 2018, constituting, in their view, psychological harassment.
2        The applicants were members of the ECDC staff. With the exception of HY, they all worked in the unit managed by the Head of Unit.
3        On 1 December 2011, AI was appointed as a member of the Staff Committee.
4        On 1 June 2012, following an amendment to the organisational structure of the ECDC, the [confidential] (1) unit was established (‘the new unit’). HY was appointed as acting head of that unit.
5        In the summer of 2012, HV was placed under the management of B.
6        By letter of 27 September 2012, the Swedish health service provider to which the ECDC entrusted its medical services stated that ‘an extraordinary high number of the staff’ who referred to ‘a non-healthy psychological working environment’.
7        In December 2012 an ‘action plan’ was addressed to HV by management in order to improve his work performance.
8        In 2013, a person in Human Resources and HV met to address the situation which the latter was experiencing with the Head of Unit and B.
9        On 1 February 2013, HY was confirmed as
head of the new unit.
10      As of April 2013, the ECDC’s Information Systems Steering Committee was no longer chaired by the Head of Unit.
11      By letter of 29 April 2013, the Director of the ECDC at that time (‘the former Director’) informed HW that, on account of certain organisational changes, she would be assigned to another group, which meant that she would be removed from her post within Emergency Operations in connection with a specific illness.
12      By email of 16 December 2013, HV received a communication from Human Resources informing him of a surplus of more than 12 days’ annual leave for the current year (15 days) and of the need to seek permission from the former Director if he wished to carry more than 12 days’ leave over to 2014. HV made that request. The Head of Unit then authorised HV to take the additional three days’ leave before the end of 2013, since he did not recommend that those days be carried over to 2014.
13      On 18 December 2013, B sent an email to HV, summarising the main points discussed during a meeting which they had had the previous day, in the presence of C.
Those points included the possibility that Human Resources might start daily monitoring of HV’s presence in the office.
14      At the beginning of 2014, owing to conflict between HY and the Head of Unit, the former Director suggested mediation with an external consultant; this, however, was unsuccessful.
15      By letter of 24 January 2014, the Head of Unit informed HV that he could continue to use the flexi-time system on condition that the ECDC was able to verify the time he actually spent in the office by checking his swipe card.
16      By email of 4 February 2014, HV complained to the head of Human Resources about the procedure for checking his swipe card.
17      On 12 May 2014, the ECDC was informed by the European Anti-Fraud Office (OLAF) of its decision to open an investigation into HV in relation to a suspected conflict of interest in the context of a contract.
18      On 27 May 2014, HV lodged an appeal against the appraisal report concerning his performance in 2013, which was considered ‘unsatisfactory’.
19      By email of 25 June 2014, the former Director informed HV that he had decided to confirm that appraisal report.
20      As from 30 June 2014, HV was placed on long-term sick leave, which lasted until the end of that year.
21      By email of 22 July 2014, the Head of Unit informed HW that her performance for 2013 had been classed as ‘unsatisfactory’ in her appraisal report, contrary to the appraisal
initially made by her line manager, D.
HW appealed against that appraisal report.
22      At the end of August 2014, HV submitted a request to the Head of Human Resources to be transferred to another unit.
23      By email of 17 September 2014, the Head of Human Resources informed HV of the reasons why his request for transfer
had been refused.
24      From 1 October to 23 December 2014, HW was placed on sick leave.
25      On 12 November 2014, as part of his examination of HW’s appeal against her appraisal report (see paragraph 21 above), the former Director consulted D.
Subsequently, HW also attended a meeting with the former Director.
26      By email of 18 November 2014, the former Director informed HW that he had decided to reinstate the initial appraisal of his line manager, according to which the ‘efficiency, abilities and aspects of conduct evaluated correspond[ed] to the level required for the post’, and the statement that the appraisal was ‘satisfactory’.
27      In a document dated 17 December 2014, HY described what ‘creat[ed] non workable work conditions and perception of harassment’. During the same period, HY contacted members of the Staff Committee concerning the Head of Unit.
28      In 2015, three members of the ECDC staff, including HV and HW, approached confidential counsellors dealing with harassment. As will be stated in paragraphs 157 and 160 below, confidential counsellors are persons, appointed by the ECDC, whose task is to assist members of staff who regard themselves as victims of harassment, in the context of an informal procedure.
29      On 11 February 2015, HW submitted a request to the Office for Administration and Payment of Individual Entitlements (PMO) for recognition of an occupational disease under Article 73 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).
30      From 15 March to 31 October 2015, HW was again placed on sick leave.
31      On 26 March 2015, HW was informed by a person working in Human Resources that her contract would not be renewed.
32      On 27 April 2015, on the basis of a suggestion from his confidential counsellor, HV sent an email to the PMO seeking to initiate the procedure for recognition that he was suffering from an occupational disease in so far as concerns the leave referred to in paragraph 20 above.
33      As of 1 May 2015, the Head of the Resource Management and Coordination Unit and Deputy Director of ECDC (‘the Director’) was appointed as Acting Director
of the ECDC in place of the former Director.
34      On 4 May 2015, the Director and HV met, in the presence of the confidential counsellor for HV and AI, in his capacity as a member of the Staff Committee. In order to prepare for the meeting, HV had sent an email to the Director, describing those actions of the Head of Unit which he had reported, and again asking to be transferred to another unit.
35      By document lodged at the Registry of the European Union Civil Service Tribunal on the same date, and after lodging a complaint under
Article 90(2) of the Staff Regulations, HV brought an action against the appraisal report concerning his performance for 2013, referred to in paragraph 19 above. The action was registered as Case F‑71/15.
36      On 19 May 2015, the Director and the Staff Committee met, on the latter’s initiative, concerning the Head of Unit’s behaviour towards some 10 members of the ECDC staff. According to the personal notes that the Director took after that meeting, those staff members wished to remain anonymous at that stage. The Staff Committee therefore gave a general description of the conduct complained of. According to that description, those staff members, who worked in different units, had referred to situations in which they felt bullied, put under pressure or ridiculed. Some stated that they did not feel acknowledged for the work they had done. Several claimed to have suffered from that situation over quite a period of time, which affected their work and their health. Some had already taken ‘formal steps’, but not all the members of staff concerned wanted to take such steps and sought, through the Staff Committee, to obtain a solution from the Director. The latter stated that she would check with Human Resources as to what the possibilities would be, already stating that she would need to be informed of ‘more concrete situations’ and that, in order for the Director to be able to proceed to any action, that could not be done anonymously.
37      On 22 May 2015, HV’s former legal representative sent an email to the Director in which he pointed out, first, that the action referred to in paragraph 35 above had been brought against the appraisal report on HV’s professional activities for 2013 and, second, what he described as a ‘request for assistance’, which he had submitted on 4 May 2015 (see paragraph 34 above). He also stated that the appraisal report on his client’s performance for 2014 was in the same vein as the preceding one. By expressing serious concerns about HV’s health, he sought an amicable settlement of the situation.
38      Over the course of May 2015, the decision not to renew HW’s contract was adopted.
39      On 4 June 2015, a second follow-up meeting with regard to the complaints made against the Head of Unit took place between the Staff Committee and the Director. It is apparent from the latter’s personal notes that, after obtaining information from Human Resources, she explained to the members of the Staff Committee that, in that type of situation, it was usually necessary to give the person concerned an opportunity to amend his or her behaviour. In those circumstances, the Director suggested that she moderate a meeting between the Head of Unit and the persons concerned. In the event that one of those persons should not wish to participate personally in the meeting, his or her written testimony (indicating the name of the person and describing the situation, the conduct complained of and its impact) could be presented by the Staff Committee. The alternative was to lodge what the Director described as ‘formal complaints’. The Director concluded that, as had been stated at the meeting of 19 May 2015, the information available to her, owing to the lack of concrete and non-anonymised situations, did not enable her to undertake an investigation or any other action.
40      On 17 June 2015, a third meeting took place between the Director and the Staff Committee. According to the personal notes taken by the Director following that meeting, the Staff Committee stated that none of the persons concerned wished to have a meeting with the Head of Unit (see paragraph 39 above) because (i) they feared retaliation, (ii) some of them were beyond amicable solutions, and (iii) they did not believe that impartiality would be guaranteed. The Director then proposed mediation by an external person, but the Staff Committee stated that the concern for impartiality was not the main reason for refusing the proposed mediation. For her part, the Director reiterated that, without information on concrete, non-anonymised situations, there was no basis for launching an investigation or any other action.
41      On 30 June 2015, having been informed that three members of the ECDC staff (including HV and HW) had approached a confidential counsellor, the Director asked them to complete an additional information form.
42      In July 2015, HW informed the Director that the PMO had accepted his request for recognition of an occupational disease (see paragraph 29 above).
43      On 24 July 2015, in response to a questionnaire sent by the Director when taking up her duties ad interim, HY stressed the need for the Director to ensure an appropriate working environment and not to tolerate the unacceptable behaviour of ‘some senior staff’.
44      By letter received at the Registry of the Civil Service Tribunal on 4 September 2015 in Case F‑71/15, the ECDC informed the Tribunal that it had reached an amicable settlement with HV, including costs.
45      By letter received at the Registry of the Civil Service Tribunal on 7 September 2015, HV informed the Tribunal that he was withdrawing his action in Case F‑71/15 and confirmed the existence of an agreement as set out by the ECDC.
46      On 14 September 2015, HV resigned from his post, requesting a shortened notice period, which was granted to him by the ECDC.
47      By emails of 20 and 21 September 2015, in the absence of any response from HV and HW to the request for further information (see paragraph 41 above), the Director came to the conclusion that she did not have prima facie evidence of harassment on the part of the Head of Unit which would justify launching a formal investigation into the matter.
48      The third member of staff referred to in paragraph 41 above provided additional information, which, however, was not considered sufficient by the Director to indicate possible psychological harassment within the meaning of Article 12a of the Staff Regulations, which would justify a formal investigation.
49      On 31 October 2015, HW left the ECDC.
50      In 2016, OLAF closed its investigation into HV, referred to in paragraph 17 above, without recommending that measures be taken against him.
51      In the same year, HY was,
as a representative of the Staff Committee, a member of the Recruitment Committee for a post in the unit run by the Head of Unit. She then resigned from that recruitment committee, taking the view that she had been the victim of harassment. The Staff Committee was informed of this.
52      HY was placed on sick leave from September 2016 until the end of her contract on 31 January 2018. Prior to her being placed on sick leave, she had informed the Director that she wished to work part-time on health grounds.
53      At the end of 2016, HY informed AI, as a member of the Staff Committee, that she had been placed on sick leave.
54      Over the course of the month of December 2016, AI and HY approached confidential counsellors.
55      By email of 5 June 2017, the Director informed HY that she intended not to renew her contract on account of performance issues, and offered her the opportunity to submit comments.
56      On 15 June 2017, in the absence of a response from HY to the email of 5 June 2017, the Director sent a text message to HY to remind her about that email and that she was available to speak to her if HY wished to put forward any comments.
57      On 16 June 2017, the Director
was formally appointed to that post.
58      On 20 June 2017, AI made a first request for assistance, under Article 24 of the Staff Regulations, on account of the Head of Unit’s behaviour (‘AI’s first request for assistance’). After having described that conduct in detail, AI made the following request to the Director, acting in her capacity as the authority empowered to conclude contracts of employment (‘the AECE’): ‘I would be grateful if you can assist me in stopping this situation that is causing a lot of distress to me, and I would also be grateful if you could investigate if this behaviour, which I perceive as repetitive, aggressive and abusive towards me, constitutes harassment.’
59      By email of 26 June 2017, the Director informed HY that her contract would not be renewed on account of performance issues.
60      On 14 July 2017, AI submitted an information form supplementing his first request for assistance.
61      On 14 August 2017, AI was informed that a decision would be made as to the action to be taken in response to his first request for assistance following the return of the Director from annual leave at the beginning of September, as the latter wished to be present in order to manage all possible consequences of that situation.
62      On 27 September 2017, the Director received confirmation that OLAF had not opened an investigation into the same facts as those reported by AI in his first request for assistance.
63      By email of 28 September 2017, AI was informed by the Director that an administrative investigation had been launched by the ECDC under the responsibility of an external investigator. The latter was also instructed to investigate another request for assistance, made by D on 20 July 2017, in connection with the Head of Unit’s behaviour.
64      On 9 October 2017, AI was interviewed for the first time by the investigator.
65      On 26 October 2017, AI contacted the Director to inform her of certain behaviour on the part of the Head of Unit, similar to that previously reported in his first request for assistance, which had taken place during a working meeting held on 25 October 2017. AI informed the Director of his feelings of vulnerability and his concern about a meeting scheduled for that evening, also attended by the Head of Unit. In that context, AI asked to be relieved of the tasks in the context of which he was in contact with the Head of Unit.
66      The Director decided to attend the meeting of 26 October 2017 which was of concern for AI. Following that meeting, the Director asked AI to suggest a way out of his situation. In response to that request, AI provided the Director with a document describing possible actions that were such as to mitigate the risks of psychological harassment. Among the options listed ‘not in any particular order’, AI suggested ‘[moving] temporarily the line management of the section … under another Head of Unit’ or ‘try[ing] to avoid contact … through the use of holidays, teleworking and flexi’.
67      By email of 7 November 2017, the Director instructed AI to opt for occasional telework for a period longer than that usually provided for, with effect from 9 November 2017.
68      By email of 8 November 2017, AI replied to the Director, stating that he considered the measure to be ‘very acceptable’. However, in order to ensure that he was present at meetings already scheduled and to organise the work of his team, AI requested that the start date for the teleworking arrangements be postponed to 13 November 2017.
69      On 25 November 2017, AI had a second interview with the investigator, during which he described the Head of Unit’s behaviour at the meeting of 25 October 2017 and his subsequent exchanges with the Director.
70      On 13 December 2017, AI ended his period of occasional teleworking. On the same date, the Head of Unit took leave until the end of 2017. AI, for his part, took leave at the beginning of 2018 and resumed his activity on 9 January 2018.
71      On 21 January 2018, the investigator submitted his report to the Director (‘the investigation report’). That report related not only to AI’s first request for assistance, but also to D’s request for assistance. According to the investigator, the two requests for assistance could be granted. In that connection, the investigator stated that he had received several testimonies according to which the Head of Unit had favoured certain staff members and harmed staff by creating in certain cases a high level of anxiety leading to illness.
72      From 31 January to 25 March 2018, the Head of Unit was put on sick leave.
73      On 26 March 2018, the Head of Unit was entrusted with tasks directly allocated and supervised by the Director, without any management relationship with AI, the only applicant who was still working at the ECDC.
74      By letter of 10 April 2018, AI submitted a second request for assistance (‘AI’s second request for assistance’). In that request, he complained that the Head of Unit had contacted several ECDC staff members during and after the preparation of the investigation report to explain to them that the elements which AI had reported in his first request for assistance were the fabrications of a disgruntled employee. AI also pointed out that the Head of Unit was back in the office following his period of sick leave and could therefore continue to defame or harass him.
75      The process of hearing the Head of Unit on the investigation report took place in April and in the first half of May 2018.
76      On 15 May 2018, the Head of Unit tendered his resignation.
77      By letter of 16 May 2018, the Head of Unit’s resignation was accepted in the interests of the service.
78      By decision of 18 May 2018 (‘the decision of 18 May 2018’), the Director replied to AI’s first request for assistance in the following terms:
‘Further to my letter of 28 September 2017, in which I informed you of the launch of the investigation following your [first] request for assistance …, I am now writing to inform you about the conclusion of the investigation and the related procedure. I received the report from the external investigator … at the end of January. The outcome of the investigation provides an account from you and another claimant, also backed by several witness statements. The investigator concludes that in his view the two claims of harassment can be upheld.
…
Having read the report and taken into account the information available to me, I came to the conclusion that there have been elements of psychological harassment. At the same time, I can see that there are a few factual errors in the report. While taking into account that [the Head of Unit], in his role …, needed to act on certain issues, I do consider however that how he dealt with these issues and his way of managing has caused unnecessary stress and anxiety for staff. I was therefore contemplating appropriate measures, however, in the meantime, [the Head of Unit] has resigned from his post and will no longer be in the office. Considering his previous absence and subsequent re-assignment to the Director’s Office and given his resignation, I trust that your request for assistance has been addressed and the situation causing you distress does no longer exist.’
79      On 29 May 2018, the Head of Unit submitted a request for assistance on the basis of (i) the disclosure of confidential information relating to the investigation against him in the Swedish media, and (ii) anonymous threats he had received. That request led to the opening of an administrative investigation during which AI was heard. The investigation was closed without further action being taken.
80      By letter of 30 May 2018, AI requested access, inter alia, to the investigation report, which was refused by decision of 20 June 2018 (‘the decision of 20 June 2018’).
81      On 2 July 2018, AI lodged a complaint under Article 90(2) of the Staff Regulations challenging the decisions of 18 May and 20 June 2018. In that complaint, he also submitted a claim for compensation for the non-material harm allegedly caused to him by those decisions, evaluated in the sum of EUR 40 000.
82      By decision of 7 September 2018, the Director rejected AI’s second request for assistance, in the absence of prima facie evidence of questionable conduct of the part of the Head of Unit.
83      By letter of 11 October 2018, the applicants and D submitted a claim for compensation under Article 90(1) of the Staff Regulations. By the latter, they sought compensation for the harm allegedly suffered by them as a result of the ECDC’s failure to respond appropriately to the Head of Unit’s behaviour
towards them between 2012 and 2018 which, in their view, constituted psychological harassment.
84      By decision of 26 October 2018, the Director rejected AI’s complaint referred to in paragraph 81 above.
85      By document lodged at the Registry of the General Court on 5 February 2019, AI brought an action for annulment of the decisions referred to in paragraphs 78, 80 and 84 above. The case was registered under number T‑65/19.
86      By decision of 11 February 2019 (‘the contested decision’), the Director rejected in its entirety the claim for compensation of 11 October 2018, referred to in paragraph 83 above.
87      By decision of 9 March 2019, the decision of 7 September 2018 rejecting AI’s second request for assistance, referred to in paragraph 82 above, was withdrawn.
88      On 15 March 2019, the Head of Unit definitively left the ECDC at the end of the notice period following his resignation.
89      On 25 March 2019, the Director invited AI to a hearing in connection with the management of his second request for assistance.
90      By decision of 5 April 2019, the Director definitively rejected AI’s second request for assistance.
91      By letter of 10 May 2019, the applicants lodged a complaint under Article 90(2) of the Staff Regulations against the contested decision. D did not lodge a complaint.
92      By letter of 5 July 2019, AI submitted a complaint under Article 90(2) of the Staff Regulations against the decision, referred to in paragraph 90 above, rejecting his second request for assistance.
93      By decision of 10 September 2019 (‘the decision rejecting the complaint’), the Director rejected in its entirety the complaint against the contested decision.
94      By decision of 4 November 2019, the Director rejected in its entirety the complaint, referred to in paragraph 92 above, relating to AI’s second request for assistance.
II.    Events subsequent to the bringing of the action
95      By document lodged at the Registry of the General Court on 12 February 2020, AI brought an action against the decisions, referred to in paragraphs 90 and 94 above, relating to his second request for assistance. The case was registered under number T‑79/20.
96      On 5 October 2020, AI left the ECDC.
97      By judgment of 14 July 2021, AI v ECDC (T‑65/19, EU:T:2021:454), the Court in part upheld the action referred to in paragraph 85 above. In particular, the Court annulled the decision of 18 May 2018 relating to AI’s first request for assistance, on the ground that, in breach of Article 24 of the Staff Regulations, the Director had failed sufficiently to establish the facts following the investigation report, to adopt on that basis a definitive and unambiguous position as to whether or not there had been psychological harassment within the meaning of Article 12a(3) of the Staff Regulations in respect of AI, and to inform the latter of the action taken in response to his request for assistance, in particular to inform him of her first intention to terminate the Head of Unit’s employment contract before he tendered his resignation, and the circumstances in which that resignation had been accepted, including the working arrangements of the person concerned during the notice period.
Furthermore, the Court in part annulled the decision of 20 June 2018 refusing AI access to the investigation report. Lastly, as regards the harm allegedly suffered as a result of the decisions of 18 May and 20 June 2018, the Court dismissed the claim for compensation brought by AI, since he had failed to demonstrate the existence of non-material harm which could be separated from the unlawfulness justifying the annulment of those two decisions and which could not be made good in full by that annulment.
No appeal was brought against the judgment of 14 July 2021, AI v ECDC (T‑65/19, EU:T:2021:454).
98      By order of 14 July 2021, AI v ECDC (T‑79/20, not published, EU:T:2021:478), the Court dismissed the action referred to in paragraph 95 above, relating to AI’s second request for assistance. No appeal was brought against that order.
III. Forms of order sought
99      The applicants claim that the General Court should:
–        annul the contested decision and, so far as necessary, the decision rejecting the complaint;
–        order the payment of financial compensation for the material and non-material harm they allegedly suffered;
–        order the ECDC to pay the costs.
100    The
ECDC contends that the Court should:
–        dismiss the action in its entirety;
–        order the applicants to pay the costs.
IV.    Law
A.      The claim for annulment
101    The applicants, while submitting claims for damages, are seeking annulment of the contested decision and, so far as necessary, the annulment of the decision rejecting the complaint.
102    In that connection, it is settled case-law that a decision of an institution, body, office or agency of the European Union rejecting a request for compensation is an integral part of the preliminary administrative procedure which precedes an action to establish liability before the Court. The measure setting out the position adopted by that institution, body, office or agency during the pre-litigation stage has the sole effect of allowing the party who has suffered damage to apply to the Court for compensation, and consequently, claims for annulment of such a decision cannot be assessed in isolation from the claims relating to compensation (see judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 42 and the case-law cited).
103    Accordingly, it is not necessary to rule separately on the applicants’ first head of claim.
B.      The claim for compensation
1.      The plea of inadmissibility raised by the ECDC
104    The ECDC requests that Annexes A.27 and A.43 to the application, which are each accompanied by several appendices, be rejected. In that regard, the ECDC observes that the applicants refer to those two annexes, in which factual allegations are addressed in greater detail. The ECDC recalls that the annexes have a purely evidential and instrumental function and therefore cannot serve as a basis for developing a plea set out in summary form in the application by putting forward complaints or arguments which do not appear therein.
105    The applicants contend that the application may be supported and supplemented, on specific points, by references to extracts from documents annexed thereto, provided that the essential facts and law on which the action is based are apparent, at least in summary form, from the text of the application itself, which is the case here.
106    Under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 thereof, and Article 76(d) of the Rules of Procedure of the General Court, the application must contain the subject matter of the dispute, the pleas in law and arguments relied on and a summary of those pleas in law.
107    With regard to the annexes to the application, it should be recalled that it is not for the General Court to seek and identify in those annexes the information on which the action could be based. The annexes in fact have a purely evidential and instrumental function, and cannot therefore serve as a basis for developing a plea set out in summary form in the application by putting forward complaints or arguments which are not contained in that application (see, to that effect, judgment of 30 January 2007, France Télécom v Commission, T‑340/03, EU:T:2007:22, paragraphs 30 and 167 and the case-law cited).
108    In the present case, Annexes A.27 and A.43, which are entitled, respectively, ‘Factual elements relat[ing] to the situation of HV’ and ‘Factual elements relat[ing] to the situation of HY’, constitute supplements to the application, drawn up for the purposes of the court proceedings by the applicants’ lawyers. Since they have neither a probative nor an instrumental function, those annexes are, accordingly, inadmissible.
109    The plea of inadmissibility raised by the ECDC must therefore be upheld.
2.      Substance
(a)    The applicants’ respective claims for compensation
110    In their action, the applicants claim to have suffered material and non-material harm as a result of the lack of an appropriate response from the ECDC to the Head of Unit’s behaviour towards them between 2012 and 2018 which, in their view, constituted psychological harassment.
(1)    AI
111    AI claims that he had already informed the former Director of the erratic behaviour of the Head of Unit during a meeting with the members of the Staff Committee in May 2012. AI states that he had himself suffered harassment by the Head of Unit from 2013 onwards and had, in his capacity as a member of the Staff Committee, been made aware of complaints from other colleagues in 2014 and 2015. In his view, from 2015 onwards, he repeatedly discussed his situation with his line manager, D, and frequently complained about the behaviour of the Head of Unit. D informed the Director of those complaints prior to 20 June 2017, the date on which AI submitted his first request for assistance.
112    Furthermore, AI claims that his first request for assistance was dealt with neither satisfactorily nor within a reasonable time period. AI argues that the Head of Unit’s resignation did not, in the absence of any disciplinary procedure being initiated against the latter, constitute an appropriate follow-up to that request for assistance.
113    AI takes the view that the ECDC’s wrongful conduct caused him material harm linked to the failure to promote him to Grade A 9, in the amount of EUR 176 400, which corresponds to the additional remuneration that he would have received had he been promoted in 2015. AI also claims to have suffered non-material harm, estimated in the amount of EUR 180 000, on account of the abnormally high level of stress that he suffered at work during the period between 2012 and 2018.
(2)    HV
114    HV claims to have begun to be the victim of psychological harassment by the Head of Unit in 2012. He also complained about B’s conduct towards him. He criticises, in particular, the partial refusal to carry over his days of leave from 2013 to 2014, the unjustified and humiliating nature of the verification of his swipe card, an unlawful attempt by the Head of Unit to access his email box in 2014, a false accusation made by the Head of Unit which led to OLAF opening an investigation into HV, and the rejection of his request to be transferred to another unit.
115    In order to demonstrate the deterioration in his health due to the psychological harassment complained of, HV states that he was on sick leave three days in 2012, 30 days in 2013, 121 days in 2014 and six months in 2015, before his resignation on 14 September 2015. He has also produced medical certificates.
116    HV claims that he reported the Head of Unit’s behaviour on several occasions. In that regard, he refers to the steps described in paragraphs 8, 16, 28, 32, 34 and 37 above. HV has explained before the Court that it was on account of his illness that he did not complete the additional information form which the Director
sent to him on 30 June 2015, referred to in paragraph 41 above.
117    HV submits that the ECDC’s wrongful conduct caused him material harm linked to his resignation before the end of his employment contract, in the amount of EUR 508 364.64, which corresponds to the remuneration he would have received had he remained in his post for a further period of 10 years. HV also claims non-material harm, estimated in the amount of EUR 90 000, on account of the suffering which he claims to have undergone, during the period between 2012 and 2015, physically, mentally and in his private life.
(3)    HW
118    HW claims that her direct line managers were satisfied with her work, unlike the Head of Unit who, she claims, ‘wanted to get rid of her’. She states that the latter was very aggressive towards her, often shouting in bilateral meetings or in public. Similarly, he spoke in French at meetings, knowing that she could not understand that language. The deterioration in HW’s health began, it is claimed, when the Head of Unit decided, in 2013, to remove her from her duties in the Emergency Operations Centre in connection with a particular disease. The Head of Unit’s animosity towards her also became apparent during the appraisal of her performance for 2013, described in paragraphs 21, 25 and 26 above. The non-renewal of her contract, announced on 26 March 2015 and formally decided in May 2015, also forms part of the harassment complained of.
119    In order to demonstrate the deterioration in her health, HW states that, until 30 September 2014, she had taken only a few days of isolated leave or short periods of sick leave. Her first period of long-term sick leave began on 1 October and ended on 23 December 2014. HW returned to work at the beginning of January 2015. She was then placed on long-term sick leave from 15 March 2015 until 31 October 2015, the date on which her contract ended. After several months of sick leave, HW eventually submitted a request for recognition of an occupational disease, which was granted.
120    According to HW, the former Director acknowledged in November 2014 that the Head of Unit’s behaviour in the appraisal of her performance for 2013 (see paragraphs 21, 25 and 26 above) had been unacceptable. She states that she also approached
a confidential counsellor in 2015 (see paragraph 28 above) and informed the Director of the occupational nature of her illness (see paragraph 42 above). HW explains that she did not complete the additional information form sent by the Director on 30 June 2015 (see paragraph 41 above) as she was very ill, depressed and disheartened.
121    At the time when the present action was brought, HW stated that she was still being treated and had had to wait two years after her departure from the ECDC before she was able to find a new job that allows her to work from home on account of her health problems. She has produced medical certificates.
122    HW takes the view that the ECDC’s wrongful conduct caused her material harm linked to the non-renewal of her contract in 2015, evaluated before the Court in the amount of EUR 455 248.37, which corresponds to part of the remuneration that she would have received if her contract had been renewed for a period of five years. HW also claims to have suffered non-material harm, estimated in the amount of EUR 120 000, on account of the abnormally high level of stress that she claims to have suffered during the period between 2011 and 2015.
(4)    HY
123    HY claims that her performance was considered satisfactory in all her appraisal reports, with the exception of the last of these. She points out that, during an initial period of employment, she had to take decisions which were not necessarily in line with those of the Director (then Head of the Resource Management and Coordination Unit) or of the Head of Unit. Furthermore, following the change referred to in paragraph 10 above, the Head of Unit lost part of his power and freedom in IT matters.
124    According to HY, in September or October 2013, she was asked to perform certain tasks for the former Director and the Management Board of the ECDC, following which she began to face pressure from the Head of Unit, and was subjected to denigration, defamation, humiliation, intimidation, disrepute and general rejection.
125    It is claimed that, in 2014, the former Director withdrew his support, leaving HY very exposed to the aggressive, intimidating and humiliating behaviour on the part of the Head of Unit. She also complains of micromanagement by her line managers and the suggestion, made by the former Director, that the new unit under her management be co-managed along with the Head of Unit.
126    In 2015, when the Director took up her duties ad interim, HY and her team were, it is claimed, overwhelmed with assessments and audits, and the Director did not protect her from the abusive conduct which continued, albeit more subtly. Thus, HY’s team was subjected to approximately seven audits, investigations or evaluations in a year.
127    HY also complains of the defamation to which she was subject in 2016, during a recruitment procedure within the unit run by the Head of Unit (see paragraph 51 above).
128    HY claims that she suffered from increasing health issues. She points out that she was placed on sick leave from September 2016 until the end of her contract on 31 January 2018. The failure to renew her contract constitutes, according to HY, the expression of the harassment that she endured.
129    HY claims that she repeatedly reported her situation by taking the steps described in paragraphs 27, 43 and 51 to 54 above. She claims that the document dated 17 December 2014, referred to in paragraph 27 above, concerning the elements which, in her view, created non-workable work conditions and a perception of harassment, referred to the Head of Unit’s conduct.
130    HY states that she had a road traffic accident in 2016 and nearly had two others on account of her poor health. During her sick leave from September 2016 to January 2018, there was no contact of any sort from her peer
colleagues. The decision not to renew her contract was not accompanied by any expression of empathy. HY has produced medical certificates and the description of her medical file from 2016 to 2018.
131    HY claims that the ECDC’s wrongful conduct caused her material harm connected to the non-renewal of her contract in 2017, in the amount of EUR 552 625.40, which corresponds to the remuneration that she would have received if her contract had been renewed for a period of five years. HY also claims to have suffered non-material harm, estimated in the amount of EUR 90 000, on account of the abnormally high level of stress that she claims to have suffered during the period from September 2013 to September 2016.
(b)    The conditions necessary for the European Union to incur liability
132    It should be recalled that in order for liability to arise on the part of an institution, organ,
body or agency of the European Union, a number of conditions must be satisfied, namely that the conduct of which the institution, organ, body or agency is accused must be unlawful, actual damage must have been suffered, and there must be a causal link between the alleged conduct and the damage pleaded, those three conditions being cumulative (see judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 47 and the case-law cited).
133    Having regard to the fact that the European Union is thus under a greater liability where it acts as employer, a mere finding of unlawfulness against the appointing authority or AECE, whether it relates to an act or to decision-making conduct, is sufficient to satisfy the first of the three conditions necessary to incur the liability of the European Union for damage caused to its officials and servants due to an infringement of the law governing the EU civil service (see judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 50 and the case-law cited).
134    As regards the circumstances in which a finding of unlawfulness can be made, the discretion enjoyed by the administration must be taken into account. Hence, if the administration is required, under the legislation in force, under general principles or fundamental rights, or indeed under rules it has imposed on itself, to adopt a particular form of conduct, the simple failure to fulfil that obligation is such as to give rise to liability on the part of the institution concerned.
By contrast, where it has a wide discretion, and in particular where the applicable legal framework does not require it to act in a predetermined manner, only a manifest error of assessment constitutes unlawfulness (see judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 51 and the case-law cited).
135    The complaints relied on by the applicants in connection with their claims for compensation must be examined in the light of those considerations.
(c)    The alleged unlawfulness
136    As is apparent from paragraphs 110 to 131 above, each of the applicants claims to have suffered material and non-material harm as a result of the ECDC’s failure to respond appropriately to the Head of Unit’s behaviour towards them between 2012 and 2018 which, in their view, constituted psychological harassment.
137    In particular, the applicants claim that the ECDC’s wrongful conduct is twofold. First, neither the former Director, the Director, nor the Human Resources manager guaranteed them a safe working environment for six years (from 2012 to 2018), despite the alerts given by the applicants, at least 10 times, and by other staff members, about the serious behaviour of the Head of Unit. Second, the ECDC reacted too late, since the harm suffered was already irreversible.
The ECDC was informed of the state of the applicants’ health, since several medical certificates had been produced, and it had all the necessary information concerning the Head of Unit’s behaviour as early as 30 June 2015.
138    It is argued that, by its failure to act, the ECDC infringed Article 31 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Article 5(1) and Article 6 of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1), Article 1e(2) of the Staff Regulations, the duty to have regard for the welfare of officials, and the obligation to provide assistance laid down in Article 24 of the Staff Regulations. As regards the latter obligation, the applicants observe that the Head of Unit’s resignation did not constitute a proper follow-up to the complaints, and that AI’s first request for assistance was not dealt with satisfactorily within a reasonable time period.
139    The ECDC disputes the existence of any unlawfulness. It contends, in essence, that no request for assistance under Article 24 of the Staff Regulations was submitted until AI’s first request for assistance, submitted on 20 June 2017, the date from which the Director took all necessary measures to establish the facts and put an end to the situation at issue. Prior to that date, having regard to the information available to her, which was anonymous and lacking in detail, the Director could not have opened an investigation or adopted other measures.
140    In order to determine whether or not there was wrongful conduct on the part of the ECDC in the present case, it is necessary to examine, in the first place, the complaints relating to the inappropriateness of the handling of AI’s first request for assistance, dated 20 June 2017, and, in the second place, the complaints relating to the warnings given by the applicants before that date.
141    Those complaints must be examined in the light of (i) the obligations of the administration to protect officials and other members of staff, and (ii) the rules of the ECDC applicable to the facts at issue.
(1)    Reminder of the obligations of the administration to protect officials and other members of staff
142    The right of every worker to working conditions which respect his or her health, safety and dignity is expressly enshrined in Article 31(1) of the Charter. Article 1e(2) of the Staff Regulations expressly refers to working conditions meeting appropriate health and safety standards.
143    According to the explanations relating to Article 31 of the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, must be taken into consideration in interpreting the Charter, Article 31(1) thereof is based on Directive 89/391, on which the applicants also rely.
144    According to the case-law, the institutions, bodies, offices and agencies of the European Union are required, both under Article 31 of the Charter and under Articles 12a and 24 of the Staff Regulations, to ensure that the working conditions of their officials and other members of staff respect their health, safety and dignity and, accordingly, to provide them in good time with procedures that ensure that their working conditions meet those requirements (see, to that effect, judgment of 13 December 2018, CH v Parliament, T‑83/18, EU:T:2018:935, paragraph 123 and the case-law cited).
145    The duty to assist laid down in Article 24 of the Staff Regulations implies intervening with all necessary energy in the presence of an incident incompatible with the orderly and smooth running of the service. The purpose of that duty is to provide officials and other staff members in active employment with security for the present and the future so that, in the general interest of the service, they can perform their duties to the best of their ability (see judgment of 14 July 2021, AI v ECDC, T‑65/19, EU:T:2021:454, paragraph 100 and the case-law cited).
146    The duty of the administration to have regard for the welfare of its staff and the principle of sound administration imply in particular that when the competent authority takes a decision on a request for assistance from an official or a staff member pursuant to Article 24 of the Staff Regulations, it should take into consideration all the factors which may determine its decision and that when doing so it should take into account not only the interests of the service but also those of the official or staff member concerned (see judgment of 26 March 2015, CN v Parliament, F‑26/14, EU:F:2015:22, paragraph 51 and the case-law cited).
147    It is, in principle, for the official or other member of the temporary staff who considers himself or herself entitled to rely on Article 24 of the Staff Regulations to submit a request for assistance to the relevant institution, body, office or agency. However, exceptional circumstances may oblige the administration concerned to provide specific assistance not in response to a request from the individual concerned but on its own initiative (judgment of 12 June 1986, Sommerlatte v Commission, 229/84, EU:C:1986:241, paragraph 20).
148    With regard to the measures to be taken in a situation which is covered by Article 24 of the 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 Staff Regulations (see judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 82 and the case-law cited).
149    Where there is sufficient prima facie evidence in support of the allegations made in a request for assistance, the administration is required to open an administrative inquiry in order to ascertain the facts and, having done so, to be able to take such measures of assistance as may be appropriate; it does not have a broad discretion as to whether it is appropriate to open and conduct such an administrative inquiry (see, to that effect, judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 84 and the case-law cited).
150    As regards the requirement that the person seeking assistance must adduce prima facie evidence of the reality of the abusive conduct of which he or she claims to be a victim, the administration in question cannot be required to conduct an administrative inquiry on the basis of mere unsubstantiated allegations, given that, in defining the measures which it considers appropriate in order to establish the truth and scope of the facts alleged, the administration must also ensure that the rights of persons implicated in a request for assistance which may be the subject of an investigation are protected (see judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 58 and the case-law cited).
151    Finally, it should be borne in mind that the objective of an administrative inquiry is to ascertain the facts and, having done so, to take the appropriate action, in full knowledge of the matter, both in the light of the case that is the subject of the inquiry and, more generally, to comply with the principle of sound administration, in order to prevent such a situation recurring. Where an administrative inquiry is continued until its completion, it may, on the other hand, be possible to disprove the allegations made by the purported victim, thus making it possible to repair the damage which such an accusation, if it were to prove unfounded, may have caused to the person named as the alleged harasser by an investigation procedure (see, to that effect, judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 59 and the case-law cited).
(2)    Rules of the ECDC applicable to the facts at issue
(i)    Rules on the conduct of administrative enquiries and disciplinary procedures
152    In November 2012, the ECDC adopted rules on the conduct of administrative enquiries and disciplinary procedures (‘Implementing Rule No 29’).
153    Article 4(1) of Implementing Rule No 29 provides that an administrative enquiry is to be opened by the Director as authority authorised to conclude contracts on his or her own initiative or at the request of any Head of Unit or of the Head of Human Resources or any other designated staff member of Human Resources.
154    Article 4(2) of that rule lays down that, before opening an enquiry, the ECDC is to consult OLAF to ascertain that the latter is not undertaking an investigation into the same facts.
155    Article 4(4) provides that ‘as soon as an administrative enquiry suggests that a staff member may be personally involved in an investigation, that staff member shall be kept informed provided that information does not hinder the enquiry’. That provision also states that ‘conclusions referring to a staff member by name may not be drawn at the end of the enquiry unless that staff member has had the opportunity to express an opinion on all the facts, which relate to him or her’ and that ‘the conclusions shall record that opinion’.
(ii) Rules on preventing psychological harassment and sexual harassment
156    The ECDC also has rules on preventing psychological harassment and sexual harassment. In response to a question put by the Court, the ECDC stated that those rules are set out in the Annex to Implementing Rule No 33, adopted on 14 August 2017 and entered into force the following day (‘Implementing Rule No 33’).
157    Section 7.1 of Implementing Rule No 33 provides:
‘Any person who feels they are the victim of psychological harassment or sexual harassment is entitled to submit a request for assistance either informally or formally. As a first step, staff are strongly advised to seek resolution of the problem through conciliation, via the informal procedure, with the assistance of a confidential counsellor. Anyone who feels they are the victim of psychological harassment or sexual harassment is, however, free from the outset to initiate a formal procedure under the Staff Regulations, involving longer timeframes. The informal procedure can also lead to a formal procedure if it proves impossible to find a solution.’
158    Section 7.5 of Implementing Rule No 33, entitled ‘Recurrent cases’, provides as follows:
‘Requests for assistance from different people involving the same individual raise concerns. These will therefore be brought to the knowledge of [Human Resources] and of the [AECE] of the alleged harasser. The [AECE] will decide on the most appropriate action to be taken. [Human Resources] will inform the investigator of any recurrent cases it identifies. The investigator will inform the appointing authority which will, where appropriate, launch the procedures provided for in Annex IX to the Staff Regulations.’
159    Following the adoption of Implementing Rule No 33, a further document, entitled ‘Informal Procedure for Cases of Psychological and Sexual Harassment – Manual for ECDC Internal Confidential Counsellors’, was drawn up by the ECDC (‘the Manual for ECDC Confidential Counsellors’).
160    As is apparent from Section 1 of that manual, the purpose thereof is to clarify the obligations and rights of all parties concerned in the informal procedure on harassment and to define their role in case it proves impossible to find a solution in the informal procedure and a formal procedure is opened. It also sets out the role of confidential counsellors in the context of the informal procedure.
161    Section 3.7 of the Manual for ECDC Confidential Counsellors provides that ‘a formal procedure is initiated on the basis of a written request for assistance by the complainant under Article 24 of the Staff Regulations, submitted to the Human Resources Manager and Legal Adviser, who are responsible for initiating the procedure’. That provision also states that, ‘in very rare and problematic cases where the health of the victim is in danger and the victim him-/herself is not capable of initiating an opening procedure, the Confidential Counsellor may contact [Human Resources] and the Head of [the] Resource Management and Coordination Unit / Director without the consent of the victim’.
162    At the hearing, the ECDC stated that, before the adoption of Implementing Rule No 33 on 14 August 2017, information on the draft rules on harassment appeared on the agency’s intranet, but that it was also clear from that information that these were only draft rules. It is also apparent from the information before the Court that confidential counsellors had already been appointed in 2015.
(3)    The complaints relating to the inappropriate nature of the handling of AI’s first request for assistance
163    AI claims that his first request for assistance, dated 20 June 2017, was dealt with neither satisfactorily nor within a reasonable time period. Following that first request, the Head of Unit still had the opportunity to denigrate him, by himself submitting a request for assistance on 29 May 2018. AI takes the view that the teleworking arrangements which were granted to him by the Director from 13 November to 9 December 2017 were clearly not the ideal solution, since that measure involved sending him home while keeping the Head of Unit in-house, which further emphasised the feeling of impunity. The decision of 18 May 2018, in response to his first request for assistance, was adopted by the Director almost five months after receiving the investigation report. Lastly, it is argued that the resignation tendered by the Head of Unit, referred to in the decision of 18 May 2018, did not, in the absence of any disciplinary procedure initiated in respect of the Head of Unit, constitute an appropriate follow-up to AI’s first request for assistance.
164    In the first place, as regards the complaint that AI’s first request for assistance was not dealt with within a reasonable time period, the Court finds that approximately three months elapsed between the submission of that request for assistance and the opening of the investigation. That time period may, however, be explained by (i) the sending by AI on 14 July 2017 of an additional information form, (ii) the need to consult OLAF beforehand in accordance with Article 4(2) of Implementing Rule No 29, and (iii) the summer holiday period.
165    Similarly, more than three months elapsed, admittedly, between the date on which the investigation report was lodged and the date on which that report was communicated to the Head of Unit. However, that time period is explained by the Head of Unit’s sick leave during that period. The Director’s decision to await the return of the Head of Unit in April 2018 in order to garner his comments on the investigation report was justified by the need to give the Head of Unit an effective hearing, pursuant in particular to Article 4(4) of Implementing Rule No 29 (see paragraph 155 above).
166    On the basis of these findings, that complaint must be rejected.
167    In the second place, as regards the complaint that the Head of Unit had the opportunity to denigrate AI following the submission of his first request for assistance, it should be noted that, when AI approached the Director on 26 October 2017 concerning a meeting which was to be held in the presence of the Head of Unit and which, for that reason, AI was concerned about (see paragraph 65 above), the Director attended that meeting in order to prevent any incidents. Furthermore, the request for assistance made by the Head of Unit on 29 May 2018 related to the disclosure in the Swedish media of confidential information relating to the investigation of which he was the subject, and was closed without any action being taken (see paragraph 79 above).
168    AI cannot, therefore, claim that he was not protected following the submission of his first request for assistance in the face of the allegedly wrongful conduct of the Head of Unit, with the result that the present complaint must also be rejected.
169    In the third place, as regards the complaint that the teleworking arrangements granted to AI were inappropriate, it is clear that these were suggested by AI himself in a list, drawn up at the request of the Director, in which he had mentioned several possible solutions in no particular order of preference. It is apparent from his email of 8 November 2017 (see paragraph 68 above) that he regarded that measure as appropriate. During the subsequent period, AI’s teleworking and the holidays taken at the end of the year enabled AI and the Head of Unit each to work at the same time at their normal place of work, in a management relationship, only for three weeks,
approximately, in January 2018, until the Head of Unit was placed on sick leave. When that leave ended, at the end of March 2018, he did not resume his previous duties, but instead was responsible for performing tasks directly entrusted to him and supervised by the Director, and had no further management relationship with AI.
170    In the light of those factors, it must be held that the measures taken made it possible to limit contact between AI and the Head of Unit and were appropriate. The present complaint is therefore unfounded.
171    In the fourth and last place, as regards the complaint that acceptance of the resignation tendered by the Head of Unit without initiating disciplinary proceedings did not constitute an adequate follow-up to AI’s first request for assistance, that complaint is in no way substantiated in the present case and does not satisfy the requirements laid down in Article 76(d) of the Rules of Procedure. That complaint is therefore inadmissible.
172    In the light of all the foregoing considerations, the complaints relating to the inappropriate nature of the handling of AI’s first request for assistance must be rejected in their entirety.
(4)    The complaints relating to the alerts given by the applicants before AI’s first request for assistance
173    The applicants claim that the ECDC did not guarantee them a safe working environment despite the numerous and repeated alerts which they and other members of the ECDC staff gave before AI’s first request for assistance.
174    In their arguments concerning the existence of unlawfulness, the applicants list the following 10 alerts, which arose between 2012 and 2016. It is claimed that, in May 2012, AI made a verbal complaint to the former Director. In 2013, HV requested assistance from Human Resources. At the end of August 2014, HV again wrote to Human Resources and his lawyer expressed concerns about the Head of Unit’s behaviour. As early as 2015, AI discussed the situation with his line manager, D. It is claimed that the latter passed AI’s concerns on to the ECDC. In April 2015, HV had, in his own words, ‘requested the assistance of the PMO (Head of Unit) by providing evidence of the negative impact of the Head of Unit’s behaviour on his health’. The applicants state that on 4 May 2015, HV sent ‘a very detailed e-mail to the Director to request her assistance’. During the meetings held in May and June 2015 between the Staff Committee and the Director, AI advised the latter of the detrimental attitude of the Head of Unit. In December 2016, AI and HY alerted a confidential counsellor. That alert was preceded by that given by HW in the spring of 2015. Lastly, the medical service was also fully informed of the situation, in particular on account of the applicants’ sick leave.
175    In the section of the application headed ‘Facts’, the applicants refer to other alerts given before AI’s first request for assistance.
Those alerts, on which the ECDC has taken a position in its defence and rejoinder, will also be examined by the Court inasmuch as those elements are linked to the alleged unlawfulness.
176    The applicants state that the case-law does not require an official or member of staff to have made a request for assistance in order to be able to rely on the administration’s duty to have regard for the welfare of officials, provided that the administration has been alerted by other means. In the present case, according to the applicants, the ECDC should have opened an investigation and provided them with appropriate assistance, in particular by virtue of its duty to have regard for the welfare of officials.
177    At the hearing, the applicants also referred to the case-law referred to in paragraph 147 above, according to which, in compliance with Article 24 of the Staff Regulations, exceptional circumstances may require an EU institution, body, office or agency to provide assistance of its own motion, without it being a response to an individual request. In that connection, the applicants observe that, in accordance with Section 3.7 of the ECDC’s Manual for Confidential Counsellors (see paragraph 161 above), the latter may contact Human Resources, the Head of the Resource Management and Coordination Unit, or the Director without the consent of the victim in very rare and problematic cases, where the health of the victim is in danger and he or she is not capable of initiating an opening procedure. According to the applicants, even though that manual was adopted only in 2017, that provision shows that the duty to provide assistance may require the administration to act even in the absence of a formal complaint.
178    The ECDC contends that the applicants have failed to adduce evidence of some of the informal alerts referred to in paragraph 174 above.
179    As regards the other alerts, the ECDC observes that it is true that HW, HV and a third person initiated an informal procedure in 2015 by referring the matter to confidential counsellors, of which the Director was informed. The latter sent those three members of staff a request for additional information by separate emails dated 30 June 2015. However, in the absence of a reply from HW and HV, the Director closed the case by emails of 20 and 21 September 2015 respectively. The ECDC states that the third member of staff provided additional information which was, however, not regarded as sufficient to reveal possible psychological harassment within the meaning of Article 12a of the Staff Regulations, which would justify the initiation of a formal investigation.
180    The ECDC draws attention to the informal nature of the applicants’ alerts and to the lack of any request for assistance under Article 24 of the Staff Regulations until that made by AI on 20 June 2017. In response to a question from the Court, the ECDC did not rule out the possibility that HV’s email of 4 May 2015, addressed to the Director, could be classified as a request for assistance, a description which was given by HV’s legal representative in an email of 22 May 2015 (see paragraph 37 above). In such a situation, however, it would have to be considered that that request for assistance was rejected by the Director in her email of 21 September 2015. Since HV did not challenge that decision in 2015, he cannot, by means of a claim for compensation, seek to obtain the same result as the outcome of an action for annulment which he failed to bring in due time. The ECDC has, however, left the issue to the discretion of the Court.
181    Lastly, at the hearing, the ECDC claimed that the Director did not wait for the submission of a request for formal assistance in order to take action, by requesting additional information from HV and HW, without, however, obtaining a response from them. The ECDC also points out that, furthermore, she had meetings with the Staff Committee on 19 May and 4 and 17 June 2015 concerning the behaviour of the Head of Unit towards several members of staff (see paragraphs 36, 39 and 40 above) and that she suggested certain solutions. However, in the absence of concrete and non-anonymised situations, she could not have opened an investigation.
182    As has been recalled in paragraph 147 above, it is, in principle, for the official or other member of the temporary staff who considers himself or herself entitled to rely on Article 24 of the Staff Regulations to submit a request for assistance to the relevant institution, body, office or agency. However, certain exceptional circumstances may oblige the administration to provide specific assistance not in response to a request from the person concerned but on its own initiative. Furthermore, the obligations arising for the administration from the duty to have regard for the welfare of officials are substantially enhanced where the situation of an official whose physical or mental health is shown to be affected is involved (see judgment of 15 September 2011, Esders v Commission, F‑62/10, EU:F:2011:141, paragraph 80, and the case-law cited).
183    In the present case, certain events, referred to in paragraphs 36 and 39 to 42 above, occurred in 2015.
184    At that time, the confidential counsellors informed the Director of the existence of three informal procedures initiated by three members of staff, including HV and HW, concerning the Head of Unit’s behaviour. Those two applicants were, moreover, on sick leave. The names of those three persons were communicated to the Director. As was confirmed at the hearing, the Head of Unit was also informed of those three informal procedures.
185    That alert was given because, even though the ECDC’s internal rules on preventing harassment had not been formally adopted at that time, the Director and Human Resources had to be informed when three informal procedures had been initiated in respect of the conduct of the same member of staff. On 14 August 2017, those rules on preventing harassment were adopted. Special attention is paid in those rules to recurrent cases. Section 7.5 of those rules in fact provides that the AECE must be informed of such cases and ‘decide on the most appropriate action to be taken’.
186    In parallel with that warning on grounds of recurrence, the Director and the Staff Committee met three times in May and June 2015, with that committee transmitting the complaints of about 10 members of the ECDC staff reporting the same type of conduct, of which they considered themselves to have been victim.
187    The ECDC explained at the hearing, in response to a question put by the Court, that 75 people were dependent on the Head of Unit. Furthermore, all ECDC staff contracts were temporary and subject to renewal, which reinforced the Head of Unit’s power to influence.
188    In that situation, the Director proposed that she or a third party moderate a meeting between the Head of Unit and the persons concerned. If one of those persons did not wish to participate personally in the meeting, his or her written testimony (indicating the name of the person and describing the situation, the conduct complained of and its impact) could be presented by the Staff Committee. Furthermore, the Director stated that the alternative for the persons concerned would be to submit formal complaints (see paragraph 39 above). However, the meeting proposed by the Director did not take place because, according to the Staff Committee, the persons concerned feared retaliation, inter alia (see paragraph 40 above). The Director also contacted the three members of staff who had, at that date, approached a confidential counsellor, including HV and HW, to ask them for additional information on their personal situation (see paragraph 41 above).
189    The applicants claim, however, that those measures were insufficient, in the absence of protection against the Head of Unit’s behaviour and of any opening of an investigation into the facts complained of.
190    However, in the context of the present action, the ECDC cannot validly be criticised for not having taken specific action with regard to the applicants on the basis of the duty to provide assistance laid down in Article 24 of the Staff Regulations, the administration’s duty to have regard for the welfare of officials and its duty to guarantee working conditions which respect health and dignity, on which the applicants also rely (see paragraph 138 above).
191    The existence of exceptional circumstances which should have led the ECDC to open an administrative investigation of its own motion or to adopt other measures of assistance with regard to the applicants has not been established, since the facts at issue do not show that it was impossible for the applicants to submit a request for assistance. In that connection, the claim concerning the fear of retaliation, made by the applicants without referring to concrete and exceptional situations, does not demonstrate that it was impossible to do so.
192    Moreover, it has not been established, or even alleged before the Court, that the applicants were in an exceptional situation which required that confidential counsellors contact the competent authorities without their consent, in order to request that an investigation be opened or other measures adopted.
193    As regards the medical service, the applicants state that it had information about the Head of Unit, but without providing evidence in support of that assertion. Moreover, it has not been claimed that that information concerned the Head of Unit’s behaviour with regard to the applicants.
194    In so far as concerns the particular situation of each applicant, there is nothing in the information before the Court to show that the competent authorities were specifically informed of AI’s personal situation before 20 June 2017. The existence of the verbal complaint which he claims to have submitted to the former Director in 2012, the content of which has not been described, has not been proved. AI’s participation, in his capacity as a member of the Staff Committee, in meetings held in May and June 2015 with the Director is not disputed. However, AI has failed to show that specific and relevant evidence of his personal situation was communicated to the Director at those meetings. Furthermore, even if, as the applicants claim, D had informed the Director, before 20 June 2017, of AI’s complaints, that was a single indirect alert only. Furthermore, no details have been given of the specific facts alleged by D.
Finally, it must be observed that, as soon as AI provided concrete information relevant to his first request for assistance, the Director took appropriate protective measures and dealt with that request within a reasonable time period (see paragraphs 163 to 172 above).
195    It must be concluded that none of the alleged infringements, referred to in paragraph 190 above, can be identified with regard to AI, without it being necessary to adopt the measure of inquiry requested by the applicants seeking that the Court order that D be examined as a witness.
196    As regards HW, she did not reply to the request for additional information sent to her by the Director, on the latter’s own initiative, on 30 June 2015. The applicants claim that HW’s situation was discussed at meetings held in May and June 2015, but they have failed to adduce any evidence to that effect or to describe the allegations made. The same is true of the exchanges which HW may have had with the former Director in 2014 in the context of the appraisal exercise in respect of her performance during 2013.
197    In those circumstances, none of the unlawfulness complained of can be identified with regard to HW.
198    As regards HY, her situation is different from that of the other applicants since, being herself a head of unit, she had no relationship of subordination with the Head of Unit. In response to a question put by the Court, the applicants stated that HY’s specific role as head of unit and her membership of the management team (which brought together the five heads of unit and the Director) meant that it was difficult for the Staff Committee to treat her in the same way as the other members of the ECDC staff. The applicants claim, however, that HY’s situation was discussed at meetings held in May and June 2015, but they have failed to adduce any evidence to that effect or describe the allegations made. Immediately after those meetings, HY completed a questionnaire sent by the Director when the latter took up her duties ad interim. In that document, HY stressed the need for the Director to ensure an appropriate working environment and that she should not tolerate the unacceptable behaviour of ‘some senior staff’. Apart from the fact that it was an abstract request, the name of the Head of Unit was not mentioned. HY states that she sent ‘another alarming email on 7 October 2015’, but that email does not appear in the case file.
199    The applicants also rely on a document drawn up by HY, dated 17 December 2014, which criticised ‘non workable
work conditions’ and which was sent to the former Director and the Director in order to be discussed at a meeting scheduled for 21 January 2015, which ultimately did not take place. The applicants have claimed that that document referred to the Head of Unit. The ECDC does not dispute that the relationship between the Head of Unit and HY was difficult and that an attempt at mediation between them was unsuccessful. At the hearing, in response to a question put by the Court, the ECDC nonetheless expressed doubts as to whether the document dated 17 December 2014 referred to the Head of Unit and whether it had in fact been sent to the management of the ECDC.
200    In that connection, it should be noted that the document dated 17 December 2014 does not mention the name of the Head of Unit. Furthermore, even if it were to be considered that that document concerned the Head of Unit, it is clear that in that document, HY solely described aspects which, in her view, created ‘a perception of harassment’, and that she has failed to adduce evidence that that document was communicated either to the former Director or to the Director.
201    It must be concluded that none of the alleged infringements can be identified with regard to HY, without it being necessary to adopt the measure of inquiry requested by the applicants seeking that the Court order that E be heard as a witness.
202    Finally, as regards HV, it must be pointed out that he did not reply to the request for additional information sent to him by the Director, on the latter’s own initiative, on 30 June 2015. Prior to that date, it is apparent from the information before the Court that HV and a person working in Human Resources met in 2013 concerning the behaviour of the Head of Unit and of B.
However, no evidence of the specific allegations made during that meeting has been adduced. By email of 4 February 2014, HV informed the Head of Human Resources of the implementation of a procedure for checking his swipe card. However, that email did not contain any allegation of harassment. The ECDC does not dispute that, at the end of August 2014, HV asked Human Resources for a transfer to another unit, but HV has failed to describe the specific conduct which he was able to report at that date. HV also contacted the PMO in April 2015, but the ECDC was not informed of this. In so far as concerns the argument that, in June 2015, HV informed the Director of the harassment that he was experiencing, in addition to the fact that this argument was put forward before the Court at a late stage in the proceedings, no evidence of those allegations has been adduced.
203    Admittedly, in an email of 4 May 2015 described as a ‘request for assistance’ by the applicants, HV sent the Director specific allegations concerning the Head of Unit’s behaviour
from December 2012 onwards and his own situation, including his request for transfer to another unit and his negative appraisal reports (see paragraphs 34, 37 and 174 above). However, HV cannot profitably rely on that request in the context of the present action in order to complain that the ECDC failed to act, since he neither replied to the request for additional information sent to him by the Director on 30 June 2015, nor challenged the latter’s conclusion, communicated by email of 21 September 2015, that there were not sufficient allegations and evidence to indicate possible harassment which would justify the opening of an investigation into the situation. As the applicants acknowledged in response to a question put by the Court, a party may not, by means of an action for damages, seek to obtain the same result as it would have obtained had it
been successful in an action for annulment which it
failed to commence in due time (see judgment of 18 November 2014, McCoy v Committee of the Regions, F‑156/12, EU:F:2014:247, paragraph 96 and the case-law cited).
204    It follows that none of the unlawfulness complained of can be found with regard to HV.
205    In the light of the foregoing considerations, the applicants’ complaints concerning the inappropriate nature of the treatment of the alerts which they had given before AI’s first request for assistance must be rejected in their entirety.
(d)    Conclusion
206    In the absence of unlawfulness with regard to the applicants, the claim for compensation must be dismissed in its entirety, without it being necessary to consider the conditions relating to the existence of harm and of a causal link.
Costs
207    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.
208    According to Article 135(1) of the Rules of Procedure, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing its own costs, or even that it is not to be ordered to pay any costs.
209    In the present case, it is a fair assessment of the circumstances of the case to order each party, in the interests of equity, to bear its own costs.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1.      Dismisses the action;
2.      Orders each party to bear its own costs.
da Silva Passos
Truchot
Sampol Pucurull
Delivered in open court in Luxembourg on 13 July 2022.
E. Coulon
S. Papasavvas
Registrar
President
Table of contents
I.
Background to the dispute
II.
Events subsequent to the bringing of the action
III.
Forms of order sought
IV.
Law
A.
The claim for annulment
B.
The claim for compensation
1.
The plea of inadmissibility raised by the ECDC
2.
Substance
(a)
The applicants’ respective claims for compensation
(1)
AI
(2)
HV
(3)
HW
(4)
HY
(b)
The conditions necessary for the European Union to incur liability
(c)
The alleged unlawfulness
(1)
Reminder of the obligations of the administration to protect officials and other members of staff
(2)
Rules of the ECDC applicable to the facts at issue
(i)
Rules on the conduct of administrative enquiries and disciplinary procedures
(ii)
Rules on preventing psychological harassment and sexual harassment
(3)
The complaints relating to the inappropriate nature of the handling of AI’s first request for assistance
(4)
The complaints relating to the alerts given by the applicants before AI’s first request for assistance
(d)
Conclusion
Costs
*      Language of the case: English.
1      Confidential information omitted.