62016TJ0763
JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
12 April 2018 (
*1
)
(Arbitration clause — Staff of EU international missions — Disputes concerning employment contracts — Internal investigation procedures — Protection of victims in cases where a claim of harassment has been made — Contractual liability)
In Case T‑763/16,
PY, represented by S. Rodrigues and A. Tymen, lawyers,
applicant,
v
EUCAP Sahel Niger, represented by E. Raoult and M. Vicente Hernandez, lawyers,
defendant,
ACTION based on Article 272 TFEU seeking an order requiring EUCAP Sahel Niger to pay compensation to the applicant for the harm allegedly suffered by the latter as a result of a breach of contract by EUCAP Sahel Niger,
THE GENERAL COURT (Fifth Chamber),
composed of D. Gratsias, President, A. Dittrich and P.G. Xuereb (Rapporteur), Judges,
Registrar: G. Predonzani, Administrator,
having regard to the written part of the procedure and further to the hearing on 26 October 2017,
gives the following
Judgment
Background to the dispute
1
EUCAP Sahel Niger (‘the Mission’) is a common security and defence policy (CSDP) mission established by Council Decision 2012/392/CFSP of 16 July 2012 on the European Union CSDP mission in Niger (EUCAP Sahel Niger) (OJ 2012 L 187, p. 48), as last amended by Council Decision (CFSP) 2017/1253 of 11 July 2017 (OJ 2017 L 179, p. 15).
2
According to Article 2 of Decision 2012/392, as amended by Council Decision (CFSP) 2016/1172 of 18 July 2016 (OJ 2016 L 193, p. 106), in the context of the implementation of the European Union Strategy for Security and Development in the Sahel, the Mission is to aim at enabling the Nigerien authorities to define and implement their own National Security Strategy. The Mission is also to aim at contributing to the development of an integrated, multidisciplinary, coherent, sustainable and human-rights-based approach among the various Nigerien security actors in the fight against terrorism and organised crime. In addition, it is to assist the Nigerien central and local authorities and security forces in developing policies, techniques and procedures to better control and fight irregular migration.
3
Under Article 7(3) of Decision 2012/392, international and local staff are to be recruited on a contractual basis by the Mission if the functions required cannot be provided by personnel seconded by Member States. Article 7(4) of the decision provides that the conditions of employment and the rights and obligations of international and local staff are to be laid down in contracts between the Head of Mission and the members of staff.
4
Article 12a of Decision 2012/392, which was inserted by Article 1(6) of Council Decision 2014/482/CFSP of 22 July 2014 amending Decision 2012/392 (OJ 2014 L 217, p. 31), states that, as required in order to implement the latter decision, the Mission is to have the capacity to procure services and supplies, enter into contracts and administrative arrangements, employ staff, hold bank accounts, acquire and dispose of assets, discharge its liabilities and be a party to legal proceedings.
5
The applicant, PY, is a former member of staff of the Mission. On 31 January 2014, he signed an employment contract with the Mission for the position of procurement officer for the period from 30 January 2014 to 15 July 2014. The applicant subsequently signed a second employment contract covering the period between 16 July 2014 and 15 July 2015 and then a third employment contract for the period from 16 July 2015 to 15 July 2016.
6
Under the terms of the applicant’s employment contracts, the code of conduct and discipline of the Mission (‘the code of conduct’) forms an integral part of those contracts.
7
The code of conduct establishes, in the first place, a number of behavioural rules with which all members of staff of the Mission must comply (paragraphs 1 to 6), including the obligation not to subject other colleagues to harassment (paragraph 2.5) or bullying (paragraph 2.6), and, in the second place, the procedure to be followed in the event of breach of those rules (paragraphs 7 to 8).
8
Paragraph 2.5 of the code of conduct is worded as follows:
‘Harassment is different from sexual harassment as it is not necessarily based on gender. Unlike bullying, a single incident can be harassment and many forms of behaviour are included. Harassment, for the purposes of this document, is: Any act or conduct including spoken words, gestures or the production, display or circulation of written words, pictures or other material if the action or conduct is unwelcome to the employee and could reasonably be regarded as offensive, humiliating or intimidating.’
9
Paragraph 7.1, headed ‘Reporting of Violations’, provides:
‘Instances of misconduct may lead to disciplinary measures and actions, and appropriate reporting procedures should be instigated … Any member of the [M]ission has the right, and obligation, to make a complaint in writing to the Head of Mission in the event of … any alleged case of misconduct, malpractice, or incompetence.’
10
Under paragraph 8.4.1 of the code of conduct, in the case of a ‘reported or detected’ alleged breach of the rules at issue, the Deputy Head of Mission is to oversee the conduct of a preliminary investigation and appoint an investigating officer. Paragraph 8.4.2 of the code of conduct provides that the investigating officer is to review the alleged incident by gathering the accounts provided by the complainant, witnesses and victims. In accordance with paragraph 8.4.4 of the code of conduct, a preliminary investigation report must be forwarded to the Deputy Head of Mission within 10 days. If the report confirms the existence of a breach of the rules at issue, a thorough investigation will be initiated, under paragraph 8.5 of the code of conduct, which results in a final investigation report. If the report confirms that the rules at issue were infringed, a disciplinary board will be appointed to examine the disciplinary measures that should be applied.
11
Article 21 of the applicant’s second and third employment contracts provides that disputes arising out of or relating to those contracts fall within the jurisdiction of the Court of Justice of the European Union under Article 272 TFEU.
12
On 15 and 16 December 2014, meetings of an evaluation committee established within the Mission took place concerning a negotiated procedure relating to a framework contract for the provision of air services to the Mission. The applicant chaired those meetings.
13
On 16 December 2014, after being informed of an incident that occurred during those meetings, the head of the ‘Mission Support’ department, Mr G., sent an email to the applicant requesting information in that regard.
14
The applicant replied to that request by email of 16 December 2014, in which he explained that he had had a major disagreement with another member of the evaluation committee, Mr X., concerning whether one of the three bids to be evaluated complied with the requirements imposed by the Mission. According to the applicant, Mr X. had suggested that the serious concerns raised by the applicant in that context were motivated by bias on his part against the undertaking that had submitted the bid. The applicant added that the evaluation committee had ultimately decided to request clarifications from the undertaking in question. In his email of 16 December 2014, the applicant did not reveal the identity of Mr X.
15
On 19 December 2014, the evaluation committee decided, in the light of the clarifications received from the undertaking in question, that its bid did not comply with the requirements to be met in this instance and recommended that the contract be awarded to another undertaking. The report dated 22 December 2014, by which the evaluation committee informed the European Commission of the outcome of its work, was also signed by Mr X.
16
On 7 February 2015, the applicant sent an email to the acting Head of Administration of the Mission, Mr M., to inform him of certain behaviour by Mr X. which the applicant considered to be ‘inappropriate between colleagues, as … it was disrespectful towards the [European Union] …, other units of the administration [and] some staff of the Mission (including [the applicant])’. First, Mr X. had allegedly asked the applicant, in the presence of persons external to the Mission, about the whereabouts of two women working for the Mission who were absent that day, using the word ‘elles’ (French personal pronoun referring to a feminine plural noun). In the applicant’s view, that remark could easily have been perceived as sexist by the witnesses at the scene. Secondly, Mr X. had supposedly entered the applicant’s office without knocking and had asked, in an accusatory and dismissive tone, ‘who [had written] that’, with reference to one of the Mission’s forms. Thirdly, the applicant claimed that Mr X. had entered his office without knocking bearing a document and had asked him, in a provocative and disrespectful manner, ‘do I hand this in here?’ Fourthly, Mr X. allegedly insinuated to the applicant that he considered the Mission’s evaluation rules to be ‘stupid’ (or ‘silly’). In his email, the applicant raised the possibility that he might feel compelled to lodge a formal complaint with the Head of Mission.
17
In his reply of 9 February 2015, Mr M., in view of the seriousness of the applicant’s email, proposed three options for the applicant to choose from. Option 1 involved organising a meeting first with the applicant, then with Mr X., and lastly with the applicant and Mr X., in order to clarify the situation and find a solution for the future. Option 2 involved organising a meeting first with the applicant, then with Mr X., and lastly with the applicant, Mr X. and a human resources representative of the Mission, in order to clarify the situation and find a solution for the future. A report or note would be drawn up and included in the personnel files of the applicant and Mr X. Option 3 involved the applicant lodging a formal complaint with the Head of Mission.
18
The applicant replied to that email by a further email on the same day. In his reply, the applicant informed Mr M. of a new incident with Mr X., whereby Mr X. had allegedly entered his office without knocking on the door. Upon explaining to Mr X. that he was expected to knock before entering the office, Mr X. ‘used his finger to make circles close to the right side of his head (a self-explanatory sign)’. The applicant added that when he had then told Mr X. that that was the last time he would open the door without knocking, Mr X. interrupted the applicant to say, with a broad smile, ‘you are threatening me’.
19
In that email, the applicant also informed Mr M. that after the incident, he had gone to see the nurse as he felt unwell and was given medication. He also stated that he had felt slightly dizzy, either because of the medication or what he considered to be a form of ‘psychological harassment’, and was therefore hardly able to respond to Mr M.’s proposal. The applicant nevertheless told Mr M. that he trusted his judgment and that if Mr M. were to reach the conclusion that there was a serious problem to be reported to the Head of Mission, he should be grateful if Mr M. would inform the latter thereof ‘on [his] behalf also, until [he felt] better to formulate an official complaint’. The applicant added that if Mr M. were to take the view that a solution could be found at administrative level, he would naturally prefer that approach. He insisted, however, that, in that case, Mr M. give consideration to the interim measures that could be taken to guarantee his protection, namely prohibiting Mr X. from entering his office or speaking to him until a solution was found.
20
In his reply of 10 February 2015, Mr M. informed the applicant that ‘having the duty of care and in [the] face of the seriousness of the facts mentioned [by him], [Mr M.] believe[d he had] no alternative other than to forward [the applicant’s] email to the [Head of Mission] and [his deputy], the only competent authorities in the Mission responsible for the code of conduct and to deal with this type of disciplinary issue’. That email was also addressed to the Head of Mission and Deputy Head of Mission.
21
Later that day, the Deputy Head of Mission, Mr S., sent an email to the Head of Mission informing him that the applicant was ‘complaining about the conduct of Mr [X.]’ and that the events of the previous days had resulted in a ‘deterioration of [the applicant’s] health’. Mr S. explained that although it was difficult in such cases to determine what had actually happened, it was hard to disregard the applicant’s claims. Consequently, Mr S. told the Head of Mission that ‘in order to shed full light [on those claims], [he] suggest[ed] treating the different messages as a complaint leading to the initiation of disciplinary proceedings’ and that ‘the preliminary investigation [would] make it possible to determine whether or not the claims [were] well founded’. Mr S. added that if the Head of Mission were to order that measure, he would take steps to launch the preliminary investigation into claims of harassment or bullying.
22
In a subsequent email sent on 10 February 2015, the Head of Mission agreed with Mr S.’s suggestion. The Head of Mission also informed Mr S. that he considered it necessary, in addition, alongside the preliminary investigation, to organise a meeting between Mr M., the applicant and Mr X.
23
However, no preliminary investigation was initiated following that exchange of emails and no meeting took place between Mr M., the applicant and Mr X.
24
The applicant was on leave from 19 June to 6 July 2015 and from 1 to 24 August 2015.
25
In an email of 25 August 2015 sent to the Head of Mission, the applicant stated that Mr M. had informed the Head of Mission of the serious incidents amounting to psychological harassment on the part of Mr X. but that he had not been heard by either the Head of Mission or a disciplinary committee. Arguing that Mr X.’s conduct towards him continued to contribute to a deteriorated working environment that was detrimental to his health, the applicant asked the Head of Mission to inform him of the measures he intended to take to put an end to the situation.
26
On the same day, the Head of Mission replied that he had notified the incidents reported by the applicant in February 2015 to the Deputy Head of Mission, as the person responsible for disciplinary matters under paragraph 8.4.1 of the code of conduct. Since he had not heard back from the interested parties, he had been under the impression that the Deputy Head of Mission had been able to settle the dispute amicably. The Head of Mission added that, as he now realised that that was not the case, he would treat the applicant’s email of 25 August 2015 as a formal complaint.
27
In an email of 28 August 2015 sent to the Head of Mission, the applicant claimed that since the evaluation committee meetings held in December 2014, Mr X. had displayed ‘hatred at every turn, any activity being an opportunity for him to denigrate, rebuff, belittle and humiliate [the applicant] in public, even in the presence of [his] staff’. Furthermore, the applicant informed the Mission that on an unspecified date in February or March 2015, Mr X. had entered his office and physically assaulted him by pouring boiling hot tea on his legs.
28
By letter of 28 August 2015, the Head of Mission notified the applicant that following the complaint the applicant had lodged on 25 August 2015 against Mr X., he had decided to send the complaint to the acting Deputy Head of Mission ‘for the exercise of his disciplinary powers’. The Head of Mission also informed the applicant in that letter that he had decided to prohibit Mr X. from approaching the applicant.
29
In an email of 30 August 2015 sent to the Head of Mission, the applicant stated that he ‘confirm[ed] the allegations of physical assault and harassment by [Mr X.]’ and asked the addressee to treat that email as a formal complaint.
30
In a certificate issued on 25 August 2015, a doctor consulted by the applicant in Niger concluded that the latter’s health was such that he needed seven days’ leave of absence from work. In a second certificate issued on 27 August 2015, the doctor explained that the applicant’s mental health was such that he needed time away from his working environment. Following the check-up carried out on the same day, the doctor concluded that there had been no improvement, that the applicant was suffering psychological distress and that it was strongly recommended that he return to Europe to consult a psychiatrist as soon as possible.
31
On 29 August 2015, the applicant left the Mission so that he could be admitted to hospital in France.
32
On 1 September 2015, the competent doctor at the hospital to which the applicant had been admitted prescribed a leave of absence from work until 14 September 2015. On 9 September 2015, a psychiatrist consulted by the applicant issued a certificate stating that the applicant was not fit to resume work until 25 September 2015. That leave of absence from work was extended by the same doctor on several occasions, the last of which until 16 July 2016. Two of those certificates, dated 14 October and 26 November 2015, referred to ‘serious depression’.
33
By email of 6 October 2015, the Mission informed the applicant that under Article 15.3 of his employment contract, he would no longer be entitled to any remuneration as from 30 September 2015, that is, 30 days after the beginning of his sick leave.
34
By email of 8 October 2015, a member of staff of the Mission informed the applicant that he had been appointed to take charge of the preliminary investigation initiated as a result of the applicant’s complaint against Mr X. and asked the applicant if he could come to the Mission for a hearing. If not, the applicant was asked if he had any additional information to provide and if he could state the names of the witnesses he would like to be heard.
35
Through his lawyers, the applicant provided additional information to the Mission.
36
By letter of 26 November 2015, the Head of Mission informed the applicant that the disciplinary investigation against Mr X. had been completed, that the disciplinary board of the Mission had found a breach of the code of conduct and had proposed a measure to be taken against Mr X., and, lastly, that he had confirmed the decision of the disciplinary board and had implemented the measure.
37
On 25 January 2016, the applicant, through his lawyers, submitted a claim for compensation based on the second paragraph of Article 340 TFEU, directed at the Mission.
38
By letter of 8 June 2016, the Mission informed the applicant that his contract could not be renewed beyond 15 July 2016.
39
On 11 July 2016, by registered letter sent to the address in France that the applicant had provided to the Mission, a French medical centre, at the request of the Mission, invited the applicant to attend a medical examination on 13 July 2016. The letter containing that invitation was returned to the medical centre by the post office as it had not been collected by the applicant.
40
By email of 15 July 2016, the Mission informed the applicant that the letter containing the invitation to attend a medical examination had been returned. It also stated that the medical certificates he had supplied from 1 September 2015 onwards did not comply with the rules set out in his employment contract and that the Mission therefore questioned their validity.
Procedure and forms of order sought by the parties
41
By application lodged at the Court Registry on 31 October 2016, the applicant brought the present action.
42
In the context of the measures of organisation of procedure provided for in Article 89(3) of its Rules of Procedure, the Court asked the Mission to produce a document. The Mission complied with that request within the prescribed period.
43
On a proposal from the Judge-Rapporteur, the General Court (Fifth Chamber) decided to open the oral part of the procedure and, in the context of the measures of organisation of procedure provided for in Article 89(3) of the Rules of Procedure, asked the parties to reply to a number of questions. The parties complied with that request within the prescribed period.
44
At the hearing on 26 October 2017, the parties presented oral argument and answered the questions put to them by the Court.
45
The applicant claims that the Court should:
–
declare the action to be admissible and well founded;
–
declare the Mission to be liable within the meaning of Article 340 TFEU;
–
order the payment of compensation for the material damage suffered;
–
order the payment of compensation for the non-material damage suffered, assessed at EUR 70000;
–
order the Mission to pay all of the costs.
46
The Mission contends that the Court should:
–
dismiss the action;
–
order the applicant to pay the costs.
Law
Subject matter of the dispute
47
In the light of the wording of the application, the applicant essentially asks the Court to order the Mission to pay compensation for the material and non-material damage it allegedly caused to him by failing to investigate, in reasonable time, the complaints of harassment it received from him in December 2014 and February 2015.
48
In his email of 28 August 2015 sent to the Head of Mission, the applicant stated that Mr X. had also physically assaulted him in February or March 2015. That alleged physical assault was not, however, mentioned in any of the emails sent in December 2014 and February 2015 which, according to the applicant, constituted complaints of harassment. It is true that, in his email of 30 August 2015, also addressed to the Head of Mission, the applicant asked the Head of Mission to treat his email of 28 August 2015 as a formal complaint relating to, among other things, that physical assault. However, the present action does not concern the steps taken by the Mission following the emails of 28 and 30 August 2015. The Court’s examination in the instant case must therefore be confined to whether the Mission discharged its obligations as regards the complaints of harassment which the applicant claims he submitted to it in December 2014 and February 2015.
49
It is apparent from the application that this action relates to the contractual liability of the Mission, within the meaning of the first paragraph of Article 340 TFEU, which the applicant indeed confirmed in his reply of 10 October 2017 to the Court’s written questions. The arguments put forward by the Mission to demonstrate that, in the present case, the conditions governing the establishment of its non-contractual liability, within the meaning of the second paragraph of Article 340 TFEU, are not met are therefore entirely irrelevant.
The Court’s jurisdiction
50
Article 12a of Decision 2012/392, as it applied after 16 July 2014 in accordance with Article 2 of Decision 2014/482 (see paragraph 3 above), gave the Mission the capacity to enter into contracts and be a party to legal proceedings, thereby conferring legal capacity on it. It is also apparent from Article 7(3) and (4) of Decision 2012/392 that the Mission is able to recruit staff on a contractual basis and that the conditions of employment and the rights and obligations of such staff are to be laid down in contracts between the Head of Mission and the members of staff.
51
Under Article 272 TFEU, the Court of Justice of the European Union has jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by or on behalf of the Union, whether that contract be governed by public or private law. In the present case, the applicant’s first employment contract with the Mission contained a clause conferring jurisdiction on the courts of Brussels (Belgium). By contrast, both the employment contract concluded between the Mission and the applicant for the period from 16 July 2014 to 15 July 2015 and that concluded between those two parties for the period from 16 July 2015 to 15 July 2016 contain a clause conferring jurisdiction on the Court of Justice of the European Union. Since the events giving rise to the present action occurred during the periods covered by the second and third employment contracts, the action can be based on Article 272 TFEU. In addition, under Article 256(1) TFEU, the General Court has jurisdiction to hear and determine at first instance all actions or proceedings referred to in Article 272 TFEU.
52
Article 20 of the second and third employment contracts concluded between the applicant and the Mission provides that disputes concerning the interpretation of those contracts must be submitted to arbitration. However, that article expressly states that the submission of such disputes to arbitration is without prejudice to the possibility of their referral to the Court of Justice of the European Union. The provisions of that article do not therefore prevent the applicant from submitting the present dispute to the Court.
53
Furthermore, according to the case-law, the EU Courts have jurisdiction to hear actions relating to the management by CSDP missions of their staff, even where such management concerns ‘field’ operations (see, to that effect, judgment of 19 July 2016, H v Council and Commission, C‑455/14 P, EU:C:2016:569, paragraphs 54 to 60).
54
The Court therefore has jurisdiction to hear the present action, which the Mission does not, moreover, dispute.
Admissibility
55
The Mission disputes the admissibility of the action.
56
In the first place, with respect to the Mission’s argument raised at the hearing to the effect that the action is inadmissible because the applicant did not follow the pre-litigation procedure, it is sufficient to note that, in so far as that argument means that the applicant was under an obligation to approach the Mission before bringing the present action, such obligation was, in any event, satisfied in the instant case. The subject matter of the claim for compensation which the applicant sent to the Mission on 25 January 2016 was the same as in the present action, even though it was formally based on the second paragraph of Article 340 TFEU.
57
In the second place, the Mission maintains that the action is inadmissible as regards the claim for compensation for alleged damage caused by its decision to stop paying the applicant’s salary as from 30 September 2015 (see paragraph 33 above). It argues that since the applicant did not object to that decision of the Mission, he cannot challenge it by means of his claim for compensation. It is sufficient to note in that regard that the applicant does not actually base his action for compensation on the damage linked to the Mission’s decision not to pay his salary after 30 September 2015. Indeed, the present action relates to damage arising from the fact that the Mission failed to initiate an investigation into the complaints of harassment which the applicant claims he submitted to it in December 2014 and February 2015, one aspect of that damage being the stopping of his salary. The Mission’s argument must therefore be rejected, without it being necessary to rule on whether the applicant was required to object to the decision to stop paying his salary as from 30 September 2015.
58
In the third place, in its reply of 11 October 2017 to the Court’s written questions and in its observations on French law, the Mission asserted that in the absence of specific, objective and consistent evidence from which the existence of harassment can be presumed, the Court should declare the action to be inadmissible. At the hearing, in reply to a question from the Court, the Mission stated that that conclusion applies irrespective of the law applicable in the instant case. That argument must, in any event, be rejected, since the present action is not based on the damage linked to alleged harassment, but on the damage resulting from the fact that the Mission failed to initiate an investigation into the complaints of harassment which the applicant claims he submitted to it in December 2014 and February 2015.
59
In the fourth and last place, the argument that the Mission tries to make based on the contents of the email sent to the Head of Mission on 30 August 2015 must also be rejected. It is true that, in that email, the applicant states that he ‘formally confirm[s] that [he] will not lodge a complaint’ about ‘the fact that the preliminary investigation which [the Head of Mission] ordered did not take place or took place without [his] testimony’. As the applicant pointed out at the hearing, that remark cannot be regarded as a waiver of the possibility of bringing an action before the Court. Such a waiver would have to be clear and unambiguous in order to call in question the admissibility of an action. That is not the case here. It is sufficient to note that the remark quoted by the Mission does not make any reference to the possibility of bringing an action before the Court.
60
In the light of the foregoing, the present action must be regarded as admissible.
Substance
Applicable law
61
Under the first paragraph of Article 340 TFEU, the contractual liability of the European Union is governed by the law applicable to the contract in question.
62
In the present case, the applicant’s employment contracts do not specify the law applicable to them.
63
In response to a question from the Court in that regard, the applicant submitted, as his principal argument, that the provisions of those contracts, including the provisions of the code of conduct, and the EU acts under which the contracts were adopted constitute the legal basis for the Mission’s liability. In the alternative, he argued that reference should be made to the Nigerien Civil Code, particularly the first paragraph of Article 1134 thereof.
64
The Mission, for its part, contended that its contractual liability follows from the employment contracts concluded between it and the applicant. If the Court were to consider it necessary to examine national law, the relevant provisions would be those of French law, in particular the provisions of the French Labour Code.
65
At the hearing, in reply to the Court’s questions in that respect, the parties confirmed that they were of the opinion that, in order to examine the Mission’s potential contractual liability, it was sufficient to examine the employment contracts at issue, including the provisions of the code of conduct, and that it was not necessary to refer to national law.
66
The Court takes the view that the present action can indeed be examined on the sole basis of the employment contracts at issue, including the provisions of the code of conduct which form an integral part of them, in the light of the general principles of European Union law concerning the establishment of contractual liability. According to those principles, three conditions must be satisfied if an action for contractual liability is to be successful: first, the institution concerned must have failed to fulfil its contractual obligations; secondly, the applicant must have suffered damage; and, thirdly, there must be a causal link between the institution’s conduct and the damage.
67
It is not therefore necessary to consider whether, as the applicant argued at the hearing, the evidence adduced by the Mission to demonstrate the possible application of French law was inadmissible.
Breach of contractual obligations by the Mission
68
The applicant contends that even though, by his emails of 17 December 2014 and 7 and 9 February 2015, he lodged complaints with the Mission concerning a colleague’s harassment of him, the Mission did not act on those complaints, in breach of several provisions of paragraph 8.4 of the code of conduct.
69
According to the applicant, that breach is characterised by the fact that, first, the Deputy Head of Mission, Mr S., had himself considered in his email of 10 February 2015 that the applicant’s emails of 7 and 9 February 2015 should be treated as a formal complaint of harassment and had suggested, in consequence, the initiation of a preliminary investigation, and, secondly, that proposal was explicitly endorsed by the Head of Mission on the same day. However, no steps were taken following the decision to initiate a preliminary investigation.
70
The applicant submits that under paragraph 8.4.1 of the code of conduct, the initiation of a preliminary investigation is compulsory where a breach of the provisions of that code has been claimed. The Mission thus had no discretion once it had taken note of the applicant’s claims and treated them as a formal complaint.
71
The applicant asserts that the Mission therefore committed a particularly serious breach of the contractual rules, namely the rules it itself had established on good conduct and internal investigations. The aim of those rules is to protect members of staff of the Mission, particularly in situations of harassment or intimidation by colleagues.
72
The applicant adds that, in his email of 9 February 2015, he had already made clear that the situation in which he found himself at that time was adversely affecting his health, which the Deputy Head of Mission communicated to the Head of Mission.
73
The Mission rejects those arguments.
74
It is apparent from paragraph 8.4.1 of the code of conduct that, in the case of a reported or detected breach of, inter alia, the provisions of that code, a preliminary investigation must be initiated. It follows that, as the applicant has argued, the initiation of a preliminary investigation is compulsory in such a situation and the Mission does not enjoy any discretion in that regard.
75
It should also be pointed out that the provisions of paragraph 8.4.1 of the code of conduct must be read in conjunction with paragraph 7.1 thereof, under which the members of staff of the Mission have the right and obligation to make a complaint in writing to the Head of Mission in any alleged case of misconduct, malpractice or incompetence (see paragraph 9 above). It follows from those provisions that a member of staff of the Mission who considers himself to be the victim of harassment and who wishes to have the Mission initiate a preliminary investigation into the matter must draw up a written complaint and submit it to the Head of Mission. Since paragraph 8.4.3 of the code of conduct refers to the ‘incriminated mission member’ in that context, it is clear that the complaint must relate to an identified individual.
76
As regards, first, the applicant’s email of 17 December 2014, those conditions are obviously not satisfied.
77
In the first place, it is common ground that, in that email, the applicant did not reveal the identity of Mr X. The fact that it was apparent from the email that the person concerned was an evaluator who had been a member of a selection committee, identified by the applicant, and that there had been only three evaluators on that committee, two of whom were men, does not affect that conclusion.
78
In the second place, although the applicant strongly criticised Mr X.’s attitude during the discussions within the evaluation committee in his email of 17 December 2014, he did not make any specific complaint suggesting that he considered Mr X.’s conduct to amount to harassment. It is true that the applicant submitted in the application that, in his email of 17 December 2014, he had reported a conflict of interest affecting Mr X. in connection with the negotiated procedure under discussion in the evaluation committee. However, besides the fact that the applicant’s email of 17 December 2014 contains no information in support of that submission, he has not provided any explanation as to how such a conflict of interest could give rise to harassment. In any event, the applicant has not explained how the Mission’s possible failure to initiate a preliminary investigation into such a conflict of interest could trigger its contractual liability towards him.
79
In the third place, the applicant stated in his email of 17 December 2014 that he was prepared to draft a ‘detailed report’ for the Head of Mission, if the recipient of that email so wished. However, the applicant did not claim that he subsequently forwarded such a report or submitted a complaint about Mr X.’s conduct on the evaluation committee in question to the Head of Mission.
80
In the fourth and last place, the applicant himself stated in the application that he had reported psychological harassment for the first time in February 2015.
81
As regards, secondly, the email that the applicant sent to Mr M., acting Head of Administration, on 7 February 2015, it should be observed that in that email, the applicant identified Mr X. by name, described certain behaviour by Mr X. which he considered to be inappropriate and expressed the hope that a solution could be found. However, it must also be noted that in that email, the applicant simply asked for help from Mr M. following Mr X.’s conduct, while explaining that he had reached the conclusion that, at that point in time, he did not feel compelled to lodge a formal complaint with the Head of Mission. Therefore, the email of 7 February 2015 cannot, in itself, be regarded as a complaint within the meaning of paragraph 7.1 of the code of conduct.
82
As regards, thirdly, the email that the applicant sent to Mr M. on 9 February 2015, that email was the applicant’s reply to the email of 9 February 2015 by which Mr M. had replied to the applicant’s email of 7 February 2015. In that reply, Mr M. offered the applicant three options, including submitting a formal complaint to the Head of Mission. As the Mission correctly observed in its email of 9 February 2015, the applicant did not, however, choose any of those options and expressed a preference for an administrative solution. Furthermore, the fact that, in his email of 9 February 2015, the applicant raised the possibility of the acting Head of Administration of the Mission informing the Head of Mission of the problems encountered with Mr X. ‘until [he] fe[lt] better to formulate an official complaint’ suggests that he thought that he had not yet made such a complaint. Lastly, the email of 9 February 2015 was not addressed to the Head of Mission even though, under paragraph 7.1 of the code of conduct, complaints of harassment should be submitted to him.
83
Notwithstanding the foregoing, the Court considers that it was both reasonable and appropriate for the Mission to treat the applicant’s emails of 7 and 9 February 2015, taken together, as a formal complaint.
84
In the first place, in his email of 9 February 2015, the applicant — in contrast to the Mission’s claims — stated that he considered himself to be the victim of ‘psychological harassment’ by Mr X.
85
In the second place, although the applicant did not expressly choose one of the three options offered to him, he informed Mr M. in his email of 9 February 2015 that, following the incident mentioned in that email, he felt unwell and had therefore gone to see the nurse, who gave him medication. The applicant added that he had felt slightly dizzy, either because of the medication or what he considered to be a form of psychological harassment, and was therefore hardly able to reply to Mr M.’s proposal. He also raised the possibility of the Head of Mission being informed of his problems with Mr X. until he felt well enough to submit a formal complaint. It is apparent from those observations that the applicant considered himself to be the victim of harassment, that he experienced health problems linked to the harassment and that his health was such that he was unable to lodge a formal complaint of harassment at that time. It is self-evident that the Mission was required to take account of that additional information in order to decide on the steps to be taken in response to the applicant’s email of 9 February 2015. In particular, owing to its duty of care, the onus was on the Mission to take account of the fact that, although possible instances of harassment had been identified by a member of its staff, that person was not in a position to lodge a complaint in the prescribed manner at that point in time because of health problems which he claimed were related to the harassment.
86
In the third place, the applicant stated in his email of 9 February 2015 that he trusted the judgment of Mr M. and that, if Mr M. were to reach the conclusion that there was a serious problem to be reported to the Head of Mission, he should be grateful if Mr M. would inform the latter thereof. It follows that the applicant deferred to Mr M.’s assessment as to the steps to be taken in response to his emails. The specific assessment made in the present case by Mr M. must therefore also be taken into account in that regard.
87
In the fourth place, in his reply of 10 February 2015, Mr M. informed the applicant that ‘having the duty of care and in [the] face of the seriousness of the facts mentioned [by him], [Mr M.] believe[d he had] no alternative other than to forward [the applicant’s] email to the [Head of Mission] and [his deputy], the only competent authorities in the Mission responsible for the code of conduct and to deal with this type of disciplinary issue’.
88
As regards Mr M.’s email of 10 February 2015 and the steps taken thereafter, the Court makes the following observations.
89
First, both the Head and the Deputy Head of Mission were addressees of Mr M.’s email of 10 February 2015. Furthermore, it is apparent from the documents in the file that the applicant’s two emails of 7 and 9 February 2015 were in fact forwarded to the Head of Mission on 10 February 2015. Although paragraph 7.1 of the code of conduct requires that complaints to which that provision refers be submitted to the Head of Mission, it does not state that the complainant must send his complaint directly to the Head of Mission and that it is not possible for a third party to forward a complaint received from the complainant, with complainant’s consent, to the Head of Mission.
90
Secondly, it is apparent from Mr M.’s email of 10 February 2015 that, in contrast to the Mission’s assertions, Mr M. did not simply inform the Head of Mission of the problems that the applicant had encountered with Mr X., pending a formal complaint which the applicant might possibly submit to the Head of Mission. On the contrary, it is clearly apparent from the wording of that email that Mr M. took the view that this was a disciplinary matter that had to be dealt with by the competent authorities within the Mission. If Mr M. had simply wanted to inform the Head of Mission of the applicant’s problems, there would have been no need to copy in the Deputy Head of Mission and state that those two addressees were the ‘only competent authorities in the Mission responsible for the code of conduct and to deal with this type of disciplinary issue’.
91
Thirdly, in a subsequent email sent to the Head of Mission on 10 February 2015, Mr S., Deputy Head of Mission, noted that the applicant was complaining about Mr X.’s conduct and suggested treating the applicant’s emails of 7 and 9 February 2015 as a complaint leading to the initiation of disciplinary proceedings. Mr S. added that if the Head of Mission were to order that measure, he would take steps to launch a preliminary investigation into claims of harassment or bullying. It should also be pointed out that the Head of Mission, in his reply sent on 10 February 2015 to the Deputy Head of Mission, agreed with the latter’s suggestion. It is apparent from that exchange that both the Head of Mission and his deputy were of the opinion that the applicant’s emails of 7 and 9 February 2015 could and should be treated as a complaint within the meaning of the code of conduct and that a preliminary investigation had to be opened.
92
The fact that it was an internal exchange which was brought to the attention of the applicant only in late August 2015 is irrelevant, since what matters here is how the Mission construed the applicant’s emails of 7 and 9 February 2015. The same conclusion applies as regards the Mission’s argument that the Head of Mission did not have the power to order the initiation of a preliminary investigation. Even if that had been the case, contrary to the premiss on which the Deputy Head of Mission had himself relied in its email of 10 February 2015, it would not affect the conclusion that both the Head of Mission and his deputy considered that a preliminary investigation had to be initiated in this instance. It is therefore not necessary to examine whether the Mission’s argument in that respect should in any event be dismissed as being out of time and, therefore, inadmissible, as the applicant contended at the hearing.
93
Fourthly, given that Mr M.’s email of 10 February 2015 shows that he was going to forward the applicant’s emails of 7 and 9 February 2015 to the Head of Mission and his deputy so that they could take the action required under the code of conduct, the applicant had no need at all to take any further steps. In particular, it was no longer necessary for the applicant to approach the Head of Mission himself in that regard, by lodging a formal complaint with him setting out the incidents described in his emails of 7 and 9 February 2015. Indeed, the email from Mr M. makes no reference to the fact that such an additional complaint was required. The same observation can be made with respect to the email exchange of 10 February 2015 between the Head of Mission and his deputy.
94
In the fifth and last place, the applicant insisted in his email of 9 February 2015 that if Mr M. were to take the view that a solution could be found at administrative level, the latter should give consideration to the interim measures that could be taken to guarantee the applicant’s protection, namely prohibiting Mr X. from entering his office or speaking to him until a solution was found. However, it is common ground that no steps were taken in response to that request at that time. If the Mission had been of the view that it was still necessary for the applicant to lodge a formal complaint with the Head of Mission in order to enable a preliminary investigation to be initiated, it ought to have taken a decision, pending the complaint, on that request.
95
Those considerations are not called into question by the fact that, in his email of 30 August 2015, the applicant asked the Head of Mission to treat that email as a formal complaint. As stated in paragraphs 91 to 93 above, both the Head of Mission and his deputy were of the opinion that the applicant’s emails of 7 and 9 February 2015 constituted a formal complaint and that a preliminary investigation had to be opened, so that, at that stage, the applicant had no longer any need to take further steps.
96
In the light of the foregoing, the Court finds that the fact that no preliminary investigation was initiated following the applicant’s emails of 7 and 9 February 2015 amounts to an infringement of paragraph 8.4 of the code of conduct and, consequently, a breach of contract attributable to the Mission.
97
None of the other arguments put forward by the Mission to counter that conclusion is persuasive.
98
In the first place, the Mission refers to the explanation provided by the Head of Mission in his email of 25 August 2015, namely that, since he had not heard back from the interested parties, he had been under the impression that the Deputy Head of Mission had been able to settle the dispute between the applicant and Mr X. amicably. However, the Mission does not deny that no such settlement was reached. In any event, as the applicant correctly points out, the onus was on the Head of Mission to enquire about the steps taken in the preliminary investigation, the initiation of which he had agreed to with his deputy.
99
In the second place, the Mission suggests that a preliminary investigation was not necessary, as the incidents alleged by the applicant did not constitute harassment and were not supported by sufficient evidence. That argument must be rejected. The Mission has not proven that none of the incidents described in the emails of 7 and 9 February 2015 was capable of constituting harassment within the meaning of paragraph 2.5 of the code of conduct. Furthermore, it in no way follows from the code of conduct that a preliminary investigation is justified only where the complainant has already submitted sufficient evidence to demonstrate actual harassment.
100
In the third place, the Mission asserts that between February and August 2015, the applicant did not enquire about the investigation which, in his view, should have been initiated in February 2015. The Mission has not explained the relevance of that fact to the question of whether it committed a breach of contract by failing to initiate a preliminary investigation concerning the applicant’s emails of 7 and 9 February 2015. The same conclusion applies to the Mission’s argument that between February and August 2015, the applicant did not report any problem and did not inform the Mission of the possible need for psychological support.
101
In the fourth and last place, the Mission’s argument that it maintained the applicant’s last employment contract even though it could have terminated that contract on account of what it considers to be conduct amounting to serious misconduct on the part of the applicant — namely insults and defamatory statements made by him in emails sent to the Mission on 28 and 30 August 2015 — is entirely irrelevant to the question of whether, by failing to initiate a preliminary investigation in February 2015, the Mission committed a breach of contract.
Heads of damage claimed by the applicant
102
The first head of damage claimed by the applicant is non-material damage. Due to the Mission’s inaction, the applicant claims that he continued to suffer harassment between February and August 2015, which could and should have been avoided. According to the applicant, that ‘descent into hell’ is illustrated in particular by the seriousness of his state of health when he left the Mission and also by the medication that the doctors were allegedly compelled to prescribe. The non-material damage also includes the medical consequences of the harassment, namely the serious depression from which the applicant continues to suffer, the medication he therefore has to take and the enforced professional inactivity as a result of his sick leave.
103
The applicant claims that that non-material damage was aggravated by the Mission’s conduct during his leaves of absence from work. It took no action to have him return to work. On the contrary, the Mission waited until 11 July 2016 to send him, at his official address, an invitation to attend a medical examination — the legal basis for which was moreover questionable — which was supposed to take place only two days later, knowing full well that he actually resided elsewhere. Furthermore, the Mission challenged the validity of all his medical certificates because they had been sent by email, even though it had confirmed after receiving the first certificate that it was not necessary to send them by post. Such an attitude is entirely lacking in concern, displays bad faith and is unfair. It thus contributed to aggravating the non-material damage suffered by the applicant.
104
According to the applicant, the non-material damage may be assessed ex aequo et bono at EUR 70000.
105
The second head of damage claimed by the applicant is of a material nature. He states that the Mission should pay him damages equivalent to the remuneration due for the period between 29 September 2015 — when payments were stopped due to his leaves of absence from work — and 15 July 2016 — when his third employment contract with the Mission ended — as well as interest and the recovery of his leave entitlement. His sick leave was due to the deterioration in his health, which was linked to the workplace harassment he had been exposed to. The applicant claims repayment of the total sum of EUR 73774 in respect of loss of earnings between 1 September 2015 and 15 July 2016.
106
According to the applicant, the third head of damage, which is also of a material nature, consists of the loss of the opportunity to have his contract renewed. It was only because it was impossible to evaluate his performance that his contract was not renewed. In the light of his excellent performance in the past and the Mission’s continuing need for the services of procurement officer, the likelihood of him having his contract renewed for one year should be assessed at at least 80%. Therefore, the Court should award damages equivalent to 80% of the remuneration that the applicant would have received had his contract been renewed.
107
The Mission disputes the applicant’s arguments.
108
It should be noted, as regards the applicant’s health, that the applicant has not, as the Mission pointed out, submitted any expert medical evidence to substantiate his claim for compensation.
109
It is nonetheless apparent from the documents in the file that the doctor consulted by the applicant in Niger in late August 2015 found that he was suffering psychological distress. It also follows from those documents that the applicant was placed on leave of absence from work from 25 August 2015 until the end of his employment contract with the Mission in July 2016. Lastly, they show that in the certificates authorising his leaves of absence from work, the psychiatrist consulted by the applicant in France referred on two occasions to ‘serious depression’.
110
It is true that, according to the documents in the file, the applicant’s health was not such that he required hospitalisation in Niger or France. It is also true that the applicant’s claim that the seriousness of his state of health at the end of August 2015 is confirmed by the medication that the doctors were allegedly compelled to prescribe has not been proven, since the medical certificates which the applicant submitted to the Court do not mention any medication. However, the documents available to the Court show that there was a significant deterioration in the applicant’s health which occurred after the applicant had, by his emails of 7 and 9 February 2015, drawn the Mission’s attention to what he considered to be a case of harassment against him by Mr X.
111
Accordingly, the Court considers that the existence of non-material damage linked to the deterioration in the applicant’s health cannot be denied.
112
As regards the material damage claimed by the applicant, it is common ground that salary payments to him were stopped on 29 September 2015 and that he therefore forfeited the remainder of the salary which would have been payable to him under his last employment contract, until its expiry, had he been able to continue working, together with his leave entitlement for that period. It is true that Article 15.7 of the applicant’s last employment contract states that periods of sick leave are deemed equivalent to periods of active service for a maximum of 30 calendar days and that no entitlement accrues in respect of sick leave beyond that limit. The fact that that provision allowed or even required the Mission to stop paying the applicant’s salary in no way affects the conclusion that he therefore forfeited the salary he would have received and, in consequence, suffered material damage.
113
As to the possibility of securing a further employment contract, it is true that the applicant did not enjoy an acquired right to the renewal of his employment contract with the Mission. The Mission did not, however, call in question the applicant’s argument that, in the light of his excellent performance in the past and the Mission’s continuing need for the type of services he had provided, the likelihood of him having his contract renewed for one year should be assessed at at least 80%. The Mission simply stated that the brief interval for which the applicant had worked during the period covered by his third employment contract had not been sufficient to enable it to evaluate the applicant’s performance with a view to the possible renewal of his contract. The applicant contends that it was precisely the breach of contract by the Mission which had affected his health to such an extent that he was unable to return to work. Accordingly, the existence of material damage as regards the loss of an opportunity to secure a new contract cannot be denied either.
114
The other arguments put forward by the Mission in that context are not capable of calling in question those conclusions.
115
First, the Mission’s argument that, from the beginning of 2015, the applicant did not hide from his colleagues the fact that he was looking to leave the Mission is not only not supported by any specific evidence, but is also not capable of calling in question the conclusion that the applicant’s health deteriorated significantly between February and August 2015.
116
Secondly, the fact that the applicant never contacted the Mission regarding possible psychological problems between February and August 2015 and that he did not ask the Mission what steps had been taken in response to his emails of 7 and 9 February 2015 before August 2015 is also not capable of calling in question that conclusion.
117
Thirdly, the same conclusion obviously applies to the Mission’s argument that the applicant arranged his departure from the Mission in late August 2015 in a manner suggesting that he did not intend to return.
118
The Mission also put forward a number of arguments concerning the period following the applicant’s departure from his post at the end of August 2015. The Mission submits that the applicant failed to accept its invitations to undergo a medical assessment in order to evaluate his health and his possible unfitness for work. In addition, it asserts that the applicant’s absence from his place of work was unjustified and could not therefore give rise to compensation for damages since the applicant failed to submit valid and verifiable medical certificates, he resided at an address unknown to the Mission and it was impossible to carry out a medical assessment or examination for reasons attributable to him. However, the Court takes the view that it is necessary to consider those arguments only if the applicant is able to establish a causal link between the breach of contract by the Mission and the non-material and material damage suffered after leaving the Mission, which must therefore be examined below.
Causal link
119
The applicant claims that because of the Mission’s inaction, the harassment complained of in February 2015 continued, worsened and resulted in him taking sick leave from 25 August 2015. He states that it is established that that leave of absence from work was due, in particular, to serious depression linked to the harassment he had experienced in the workplace. That last point, to which the applicant’s doctor referred, allegedly proves to the requisite legal standard the existence of a causal link between the Mission’s breaches of its contractual obligations and the damage suffered by the applicant. The applicant adds that the first time he was prescribed antidepressants was in February 2015, despite years of service on mission in often hostile environments. Furthermore, he had to take his first period of sick leave between 9 and 13 February 2015, just after the first complaint of psychological harassment.
120
The Mission disputes the applicant’s arguments. It contends that there is no causal link between its conduct and the damage claimed.
121
It is apparent from the case-law that as regards the non-contractual liability of the European Union, the European Union cannot be held liable for any damage other than that which is a sufficiently direct consequence of the misconduct of the institution concerned (see judgment of 24 October 2000, Fresh Marine v Commission, T‑178/98, EU:T:2000:240, paragraph 118 and the case-law cited; order of 9 November 2016, Jenkinson v Council and Others, T‑602/15, EU:T:2016:660, paragraph 49). The Court considers that the same applies as regards the contractual liability of the European Union.
122
In the first place, it is necessary to examine whether there is a direct link between the Mission’s conduct and the non-material damage suffered by the applicant.
123
The Court finds that the applicant has not produced any document to demonstrate indisputably that the non-material damage suffered by him was caused by the Mission’s breach of contract in the present case. In particular, contrary to the applicant’s assertions, the evidence adduced by him does not show that his doctor found that the deterioration in his health was related to workplace harassment. The fact that the psychiatrist who examined the applicant noted, in his certificate of 14 October 2015, that the applicant had complained of harassment at work does not constitute such a finding, as it was a comment by the applicant on which the doctor expressed no view.
124
The following factors should nonetheless be taken into consideration in that respect.
125
First, in his email of 9 February 2015, the applicant informed the Mission of the health problems he had experienced after the incident involving Mr X., which was described in that same email. It is also apparent from the evidence adduced by the applicant that, subsequently, he was placed on leave of absence from work from 9 to 13 February 2015. Accordingly, the Mission could not have been unaware that failing to take the appropriate steps in response to the applicant’s emails of 7 and 9 February 2015 was likely to risk a further deterioration in his health. In that regard, it should be noted that when a preliminary investigation was initiated in late August 2015, the Head of Mission simultaneously decided to prohibit Mr X. from approaching the applicant with immediate effect.
126
Secondly, as the Court has already pointed out (see paragraph 110 above), it is common ground that the applicant’s health deteriorated significantly at the end of August 2015 and that the applicant contends that the motive for that deterioration was the fact that no preliminary investigation had been opened in February 2015. It is true that the Mission suggests that the cause of that deterioration might be something other than harassment or the fact that it had not initiated a preliminary investigation in February 2015. In that connection, the Mission states that the certificates of the doctor consulted by the applicant in Niger in late August 2015 refer to the living conditions within the Mission as the cause of the deterioration in his health. However, that argument is not supported by those certificates, in which the doctor in question simply found that the applicant was suffering mental distress and his health was such that he needed time away from his working environment.
127
Thirdly, the Mission acknowledges that the investigation it initiated at the end of August 2015 led it to conclude that Mr X. had infringed the code of conduct.
128
In the light of the above, the Court considers there to be a sufficiently conclusive body of evidence for finding that there is a direct link between, on the one hand, the Mission’s failure to initiate a preliminary investigation following the exchange of emails of 10 February 2015 between the Head of Mission and his deputy, in order to examine the incidents described by the applicant as constituting harassment by Mr X., and, on the other hand, the deterioration in the applicant’s health that occurred during the period after that date.
129
However, the Court considers that there was a causal link for only part of that period.
130
In the first place, it is apparent from the code of conduct that a preliminary investigation must be carried out swiftly. In particular, paragraph 8.4.4 of the code of conduct provides that a preliminary investigation report must be forwarded to the Deputy Head of Mission within a reasonably short time, namely 10 days. Accordingly, the applicant had the duty to make reasonable enquiries, after a certain period of time had elapsed and having received no information on the steps taken in response to his complaint, to ascertain whether a preliminary investigation had actually been initiated and if it was still ongoing. Furthermore, it is apparent from the documents in the file, particularly the applicant’s various emails, that he was properly informed of the applicable procedures in such a situation.
131
Consequently, it must be held that it was for the applicant to seek information on the steps taken in response to his emails of 7 and 9 February 2015 within a relatively short time, especially since the harassment he had complained of in those emails seemed to have worsened considerably, according to his emails of 25 and 28 August 2015. In particular, in that last email, the applicant complains that in February or March 2015, Mr X. physically assaulted him by pouring boiling hot tea on his legs. At the hearing, in reply to a question from the Court on that point, the applicant was unable to explain why he had waited several months to inform the Mission of that incident which, if considered to be proven, had to be regarded as very serious.
132
The applicant does not dispute the fact that between February and August 2015, as the Mission pointed out, he kept quiet about an alleged instance of harassment and never asked the Mission about the steps taken in response to his emails of 7 and 9 February 2015 or came forward to inform the Mission that his situation had worsened. In his reply to a question from the Court, at the hearing, the applicant simply stated that he had not considered it necessary to take such action, that he trusted the Mission and that he thought that an investigation was actually ongoing.
133
It is true that, in the additional information he provided to the Mission on 26 October 2015, the applicant observed that ‘Mr [X.]’s behaviour [had] improved for a short time (in May 2015)’, that ‘[he had] to make clear that as [he] was still, following [his] February complaint, awaiting completion of the disciplinary proceedings and a penalty that would have a de facto “instructive” and “motivational” effect on Mr [X.], and seeing that Mr [X.] [had] changed his attitude, [the applicant had] hoped that things could be sorted out’ and that ‘to support this positive change during that short period, [he had] therefore even invited Mr [X.] to lunch, an invitation which Mr [X.] [had] accepted and attended’. It therefore follows from the applicant’s own statements that, in May 2015, he considered that Mr X.’s behaviour towards him had improved and that he could expect, subject to the outcome of his complaint and by giving Mr X. signs of encouragement, their relationship to return to normal. However, as the applicant himself states, that improvement lasted only a short time and it must therefore be inferred that, thereafter, the harassment complained of continued. Consequently, even if it is conceded that, in May 2015, the improvement in the situation discouraged the applicant from seeking information on the steps taken in response to his complaint, that would not be the case for the subsequent period.
134
In view of the foregoing, the Court considers that a direct causal link between the failure to initiate a preliminary investigation and the deterioration in the applicant’s health can be regarded as established to the requisite legal standard only for the period between 10 February 2015 and May 2015 at most. Beyond that period, it must be held that the deterioration in the applicant’s health was no longer the direct result of the failure to initiate a preliminary investigation, but also stemmed from his failure to take action to ascertain what steps had been taken in response to his emails of 7 and 9 February 2015 or to inform his superiors of the breakdown in his relationship with Mr X. The applicant’s email of 25 August 2015 must be regarded as being too late, especially since, on that date, his health had deteriorated to the point that it was necessary for him to be placed on sick leave and returned to Europe, according to the medical certificates drawn up during that period. Therefore, without it being necessary to examine the Mission’s other arguments in that respect, the Mission cannot be held liable for the non-material damage suffered by the applicant beyond May 2015, particularly the damage that occurred after he left the Mission at the end of August 2015.
135
In the second place, it follows from paragraphs 112 and 113 above that the material damage suffered by the applicant occurred after he left the Mission in August 2015. Consequently, for the same reasons as those set out in paragraphs 130 to 134 above, it must be held that the Mission cannot be held liable for that material damage.
136
In the light of all of the foregoing, the Court considers that the amount of non-material damage suffered by the applicant must be fixed ex aequo et bono at EUR 10000.
137
It follows from all of the above considerations that the Mission should be ordered to pay the applicant the sum of EUR 10000 in respect of non-material damage suffered and that the remainder of the claims should be dismissed.
Costs
138
Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party.
139
In the present case, the applicant and the Mission have both been partly unsuccessful. However, in the light of the circumstances of the present case, the Mission must be ordered to pay, in addition to its own costs, three quarters of the applicant’s costs.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1.
Orders EUCAP Sahel Niger to pay to PY the sum of EUR 10000;
2.
Dismisses the action as to the remainder;
3.
Orders EUCAP Sahel Niger to pay, in addition to its own costs, three quarters of the costs incurred by PY.
Delivered in open court in Luxembourg on 12 April 2018.
[Signatures]
(
*1
)	Language of the case: French.