62010FJ0041_EN
Parties
Grounds
Operative part
Parties
In Case F-41/10,
ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,
Moises Bermejo Garde,
an official of the European Economic and Social Committee, residing in Brussels (Belgium), represented by L. Levi, lawyer,
applicant,
v
European Economic and Social Committee (EESC),
represented by M. Echevarría Viñuela, acting as Agent, with B. Wägenbaur, lawyer,
defendant,
THE CIVIL SERVICE TRIBUNAL (First Chamber),
composed of H. Kreppel (Rapporteur), President, E. Perillo and R. Barents, Judges,
Registrar: J. Tomac, Administrator,
having regard to the written procedure and further to the hearing on 31 January 2012,
gives the following
Judgment
Grounds
1. By application received at the Registry of the Tribunal on 7 June 2010, Mr Bermejo Garde sought annulment of the decisions whereby the President of the European Economic and Social Committee (EESC), first, rejected the application for assistance submitted on account of the psychological harassment sustained and refused to refer the matter to the European Anti-Fraud Office (OLAF) and, second, terminated the applicant’s previous duties and ordered that he be reassigned, and also an order that the EESC pay damages to the applicant.
Legal context
2. Article 1 of the Charter of Fundamental Rights of the European Union, entitled ‘Human dignity’, provides:
‘Human dignity is inviolable. It must be respected and protected.’
3. According to paragraphs 1 and 2 of Article 41 of the Charter, entitled ‘Right to good administration’:
‘1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.
2. This right includes:
(a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;
(b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;
(c) the obligation of the administration to give reasons for its decisions.’
4. As for Article 31 of the Charter, entitled ‘Fair and just working conditions’, it provides, in paragraph 1, that ‘[e]very worker has the right to working conditions which respect his or her health, safety and dignity’.
5. Article 12a of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) provides:
‘1. Officials shall refrain from any form of psychological or sexual harassment.
2. An official who has been the victim of psychological or sexual harassment shall not suffer any prejudicial effects on the part of the institution. An official who has given evidence on psychological or sexual harassment shall not suffer any prejudicial effects on the part of the institution, provided the official has acted honestly.
3. “Psychological harassment” means any improper conduct that takes place over a period, is repetitive or systematic and involves physical behaviour, spoken or written language, gestures or other acts that are intentional and that may undermine the personality, dignity or physical or psychological integrity of any person.
4. “Sexual harassment” means conduct relating to sex which is unwanted by the person to whom it is directed and which has the purpose or effect of offending that person or creating an intimidating, hostile, offensive or disturbing environment. Sexual harassment shall be treated as discrimination based on gender.’
6. According to Article 22a of the Staff Regulations:
‘1. Any official who, in the course of or in connection with the performance of his duties, becomes aware of facts which give rise to a presumption of the existence of possible illegal activity, including fraud or corruption, detrimental to the interests of the [Union], or of conduct relating to the discharge of professional duties which may constitute a serious failure to comply with the obligations of officials of the [Union], shall without delay inform either his immediate superior or his Director-General or, if he considers it useful, the Secretary-General, or the persons in equivalent positions, or [OLAF] direct.
Information referred to in the first subparagraph shall be given in writing.
This paragraph shall also apply in the event of serious failure to comply with a similar obligation on the part of a Member of an institution or any other person in the service of or carrying out work for an institution.
2. Any official receiving the information referred to in paragraph 1 shall without delay transmit to OLAF any evidence of which he is aware from which the existence of the irregularities referred to in paragraph 1 may be presumed.
3. An official shall not suffer any prejudicial effects on the part of the institution as a result of having communicated the information referred to in paragraphs 1 and 2, provided that he acted reasonably and honestly.
4. Paragraphs 1 to 3 shall not apply to documents, deeds, reports, notes or information in any form whatsoever held for the purposes of, or created or disclosed to the official in the course of, proceedings in legal cases, whether pending or closed.’
7. Article 22b(1) of the Staff Regulations is worded as follows:
‘An official who further discloses information as defined in Article 22a to the President of the [European] Commission or of the Court of Auditors [of the European Union] or of the Council [of the European Union] or of the European Parliament, or to the European Ombudsman, shall not suffer any prejudicial effects on the part of the institution to which he belongs provided that both of the following conditions are met:
(a) the official honestly and reasonably believes that the information disclosed, and any allegation contained in it, are substantially true; and
(b) the official has previously disclosed the same information to OLAF or to his own institution and has allowed … OLAF or that institution the period of time set by [OLAF] or the institution, given the complexity of the case, to take appropriate action. The official shall be duly informed of that period of time within 60 days.’
8. Article 60(6) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) (‘the Financial Regulation’) provides, in particular, that ‘[i]n the event of any illegal activity, fraud or corruption which may harm the interests of the Community’, any member of staff involved in the financial management and control of transactions ‘shall inform the authorities and bodies designated by the applicable legislation’.
9. As for Article 72 of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p. 1), it is worded as follows:
‘The authorities and bodies referred to in Articles 60(6) … of the Financial Regulation shall be understood to mean the bodies designated by [the Staff Regulations] and the decisions of the Community institutions concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any other illegal activity detrimental to the Communities’ interests.’
10. Rule 72(1) of the Rules of Procedure of the EESC (‘the Rules of Procedure’) provides:
‘The powers which the [Staff Regulations] confer on the appointing authority shall be exercised as follows:
– with respect to the secretary-general, by the Bureau;
– with respect to officials in grades 16, 15 and 14 of function group [of Administration] AD, by the Bureau, acting on a proposal from the secretary-general, as regards application of Articles 13, 29, 30, 31, 32, 40, 41, 49, 50, 51, 78 and 90(1) of the Staff Regulations; by the president, acting on a proposal from the secretary-general, as regards application of the other provisions of the Staff Regulations, including Article 90(2);
– with respect to officials in grades 13, 12 and 11 of function group AD, by the president, acting on a proposal from the secretary-general;
– with respect to officials in the other grades of function group AD and all grades of function group AST, by the secretary-general.’
11. On 11 October 1999 the EESC adopted Decision No 363/ 99 A
concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities’ interests.
12. Article 2 of Decision No 363/99 A, entitled ‘Obligation to provide information’, provides:
‘Any official or servant of [the EESC] who becomes aware of evidence which gives rise to a presumption of the existence of possible cases of fraud, corruption or any other illegal activity detrimental to the interests of the Communities, or of serious situations relating to the discharge of professional duties which may constitute a failure to comply with the obligations of officials or servants of the Communities liable to result in disciplinary or, in appropriate cases, criminal proceedings, or a failure to comply with the analogous obligations of the members, managers or members of staff not subject to the Staff Regulations, shall inform without delay his Head of Service or Director-General or, if he considers it useful, his Secretary-General or [OLAF] direct.
The Secretary-General, the Directors-General and the Heads of Service of [the EESC] shall transmit without delay to [OLAF] any evidence of which they are aware from which the existence of irregularities as referred to in the first paragraph may be presumed.
Officials or servants of [the EESC] Parliament must in no way suffer inequitable or discriminatory treatment as a result of having communicated the information referred to in the first and second paragraphs.
Members of the Committee who acquire knowledge of facts as referred to in the first paragraph shall inform the President of [the EESC] or, if they consider it useful, [OLAF] Office direct.’
Facts
13. The applicant, who has been an official since 1990, entered the service of the EESC on 1 June 1991 and was assigned to the post of Legal Adviser in the Directorate for Administration, Personnel and Finance.
14. With effect from 1 June 1997 the applicant was appointed Head of Unit ‘Legal Service’ (‘the Legal Service’) of the Directorate for Administration, Personnel and Finance.
15. On 1 April 2007 the applicant was promoted to Grade AD 13.
16. On 1 October 2008 Mr W., the new Secretary-General of the EESC (‘the Secretary-General’), took up his post.
17. On the following day the Secretary-General sent an internal note whereby he informed the staff that he would occupy, on an interim basis, the then-vacant post of Director of the Directorate for Human and Financial Resources.
18. It is common ground that, shortly after Mr W. was appointed as Secretary-General, relations between him and the applicant deteriorated; in particular, the applicant took issue with the Secretary-General for bringing ‘unlawful’ pressure to bear on the Legal Service.
19. On 7 December 2009 the applicant lodged a note with the EESC, addressed to the President of the EESC (‘the President’) and also to the Presidents of the three social groups going to make up the EESC, in their capacity as members of the Bureau of the EESC. In that note, to which were attached a number of annexes and certain documentation, the applicant, referring expressly to Article 22a(1) of the Staff Regulations, informed the Bureau of the EESC (‘the Bureau’) of the existence of grave and numerous irregularities alleged to have been committed, in the performance of their duties, by the Secretary-General and, to a lesser extent, by the Head of Unit ‘Recruitment, Careers, Training’ of the Directorate for Human and Financial Resources. The applicant complained, in particular, of:
– the pressure brought to bear on the Legal Service;
– the refusal to impose a disciplinary penalty on an official guilty of unlawful acts and to report those acts to OLAF;
– the irregular filling of posts as Director within the EESC.
20. In the same note, the applicant requested the Bureau, inter alia, to:
– ‘initiate an administrative investigation [with the aim of] establishing the facts and the resulting irregularities’;
– ‘communicate [to the applicant] the period of time referred to in Article 22b[1][b] of the Staff Regulations’;
– ‘take steps to restore the proper functioning of the [Secretariat-General]’;
– ‘ensure the independence of the Legal Service in the conditions required by the case-law of the Court of Justice [of the European Union]’;
– ‘draw the inevitable conclusions as to personal liability following the necessary intervention of OLAF’.
21. Still in the note of 7 December 2009, the applicant also requested, in reliance on Article 24 of the Staff Regulations, the assistance of the Bureau, namely that it might take ‘the necessary measures to put an end to the psychological harassment applied against [him]’ by the Secretary-General.
22. By e-mails of the same date the applicant inform ed the other members of the Bureau that he had just lodged for the attention of each of them, at the premises of their respective groups, an envelope containing a copy of the note of 7 December 2009. According to the applicant, those envelopes never reached their addressees, as the President and the three Group Presidents had prevented their distribution.
23. On 10 December 2009 the President ordered his chef de cabinet to carry out a ‘preliminary examination’ of the information communicated by the applicant in his note of 7 December 2009.
24. In accordance with that instruction, the President’s chef de cabinet interviewed the persons concerned by the note of 7 December 2009. The applicant, in particular, was interviewed twice, on 15 December 2009 and 14 January 2010.
25. At the end of January 2010 the President’s chef de cabinet drew up a report on the allegations of psychological harassment and irregularities within the EESC made by the applicant in the note of 7 December 2009. In that report, the President’s chef de cabinet considered that the allegations were unfounded. He stated, in particular, that while there was a ‘strained climate’ between the Legal Service and the Secretariat-General, that ‘problem seem[ed] … to be essentially attributable to a difference of opinion as to the role of the [Legal Service]’ and that ‘[t]he various incidences described as harassment [were] merely manifestations of that difference, possibly aggravated by significant cultural differences in the legal sphere and also by the personal nature of those involved’.
26. In the course of an interview on 22 February 2010, the President invited the applicant to withdraw the requests set out in his note of 7 December 2009.
27. By letter of 26 February 2010 the applicant refused that invitation, explaining that ‘having in all good conscience formed the view that there was irregular conduct …, [he could] not now contradict [himself] without feeling that [he was] in breach of Article 21 of the Staff Regulations’. The applicant emphasised, moreover, ‘that there [was] no personal interest or personal conflict in the steps [he had] taken, which remain[ed] strictly professional’.
28. By Decision No 088/10 A of 3 March 2010 (‘the decision of 3 March 2010’), the President, ‘on the basis of a mandate which the Bureau [had] conferred on him on 16 February 2010’, rejected all the requests set out in the note of 7 December 2009, as ‘the facts relied on [could] not be characterised as a criminal offence or as a breach of the provisions of the Staff Regulations on disciplinary matters’.
29. In that decision, in which it was mentioned that ‘an attempt at a reconciliation [had] been made, but that … [the applicant] [had] not accepted the solution proposed’, the President considered that ‘the complaint of persecution at work by the Secretary-General or any other official [was] not justified, since the scant evidence available in that regard [ran] counter to the arguments put forward by the complainant’ and that ‘the accusation of misuse of powers and abuse of the powers of the Bureau … by the Secretary-General [was] not supported by the evidence’.
30. Furthermore, still in that decision, the President stated that ‘[t]he Secretary-General [would] entrust [the applicant] with duties corresponding to his qualifications and grade, and [that] the applicant’s remuneration as Head of Unit would be maintained with a view to his accession to a post of that nature in the near future if none [should be] immediately available, but in a unit other than the Legal Service’.
31. Last, the President added that ‘[t]he Secretary-General [would] indicate the other administrative measures apt to favour the smooth functioning of the administrative activity and to enable the misunderstandings and disputes within the Secretariat General to be overcome, in keeping with the principles of good administration and the exercise by the different structures of their own particular competences, responsibilities and powers’.
32. The decision of 3 March 2010 was communicated to the applicant on the date of its adoption in its original language, Italian, and then on 10 March 2010 in the Spanish and French versions.
33. On 24 March 2010 the President adopted an ‘addendum’ to the decision of 3 March 2010, in which it was stated that the ‘measures [for the implementation] of the decision [of 3 March 2010], which [would] be taken by the Secretary-General, [would] be enforced under the authority of the President’ (‘the addendum of 24 March 2010’).
34. By Decision No 133/10 A, also of 24 March 2010, the President, ‘having consulted and with the consent of the Secretary-General’, terminated, ‘in the interests of the service’ and ‘with immediate effect’, the duties of Head of the Legal Service performed by the applicant and stated that the applicant ‘[would] be re-assigned, as Head of Unit and with his post, to another service within the EESC from [6] April 2010’ (‘the decision terminating the applicant’s previous duties’).
35. By Decision No 184/10 A of 13 April 2010, the President, ‘having consulted and with the consent of the Secretary-General’, assigned the applicant, ‘for operational reasons’, to the Directorate for Logistics, ‘in the capacity of Head of Unit and with his post … in order, in particular, to deal with legal matters relating to contracts and invitations to tender’. It was envisaged that that decision would take effect on 6 April 2010 (‘the decision ordering the applicant’s reassignment’).
36. By note of 3 June 2010, the applicant, in accordance with Article 90(2) of the Staff Regulations, lodged a complaint against:
– the decision of 3 March 2010;
– the addendum of 24 March 2010;
– the decision terminating the previous duties;
– the decision ordering reassignment.
Procedure and forms of order sought by the parties
37. In accordance with Article 91(4) of the Staff Regulations, the applicant, without awaiting the decision on the complaint, brought the present action for annulment of the decisions referred to in the complaint. On the same date he also made application to the Tribunal for interim measures, seeking a stay of execution of those decisions.
38. By letters from the Registry of 11 June 2010, the parties were informed, in accordance with Article 91(4) of the Staff Regulations, that the proceedings in the main action were suspended.
39. By order of 14 July 2010 the President of the Tribunal dismissed the application for interim measures.
40. Following the decision rejecting the complaint, which was adopted on 1 October 2010 and notified to the applicant on 15 October 2010, the parties were informed, in accordance with Article 91(4) of the Staff Regulations, that the proceedings in the main action before the Tribunal were resumed.
41. The applicant claims that the Tribunal should:
– annul the decision of 3 March 2010, the addendum of 24 March 2010, the decision terminating the applicant’s previous duties and the decision ordering his reassignment;
– order the EESC to pay the applicant the sum of EUR 17 500 by way of damages;
– order the EESC to pay all the costs.
42. The EESC contends that the Tribunal should:
– dismiss the action;
– order the applicant to pay all the costs, including those relating to the interim measures proceedings.
Law
1. The claim for annulment of the decision of 3 March 2010 and the addendum of 24 March 2010
43. It is appropriate at the outset to determine the scope of the decision of 3 March 2010 and the addendum of 24 March 2010, and in order to do so it is necessary first to define the terms of the note of 7 December 2009.
44. In the note of 7 December 2009 the applicant informed the administration of facts capable of being placed in two distinct categories.
45. In the first place, the applicant reported facts which concerned him directly. In particular, he took issue with the Secretary-General for acts of mental harassment, which had essentially taken the form of ‘illegitimate’ pressure on the Legal Service. He requested the administration to provide him with assistance, in application of the first paragraph of Article 24 of the Staff Regulations, such assistance to consist mainly in removing the Legal Service from the direct responsibility of the Secretary-General (‘the request for assistance’).
46. In the second place, still in the note of 7 December 2009, the applicant also drew attention to facts which, while they did not concern him directly, were from his point of view likely to be detrimental to the interests of the EESC. The facts thus complained of were, in particular, the Secretary-General’s refusal to impose a disciplinary measure on an official guilty of unlawful acts, affecting the procedure for filling posts as director of Directorate A for Consultative Works and of the Directorate for Human and Financial Resources, or again the fact that the Secretary-General had usurped the powers of the Bureau in connection with the appointment of other officials of the EESC. The applicant requested that that information be communicated immediately to OLAF, in application of Article 22a(2) of the Staff Regulations (‘the request to refer the matter to OLAF’).
47. The terms of the note of 7 December 2009 having been thus defined, it must be stated that, by the decision of 3 March 2010, the President rejected both the request for assistance and the request to refer the matter to OLAF and also informed the applicant that he would in future be reassigned, the detailed arrangements of such assignment to be determined by the Secretary-General. Subsequently, in the addendum of 24 March 2010, the President added that the detailed arrangements for the applicant’s reassignment would be implemented under his authority.
48. In those circumstances, it is necessary to adjudicate, in turn, on:
– the claim for annulment of the decision of 3 March 2010, in that it stated that the applicant would be reassigned, and the claim for annulment of the addendum of 24 March 2010;
– the claim for annulment of the decision of 3 March 2010, in that it rejected the request to refer the matter to OLAF;
– the claim for annulment of the decision of 3 March 2010, in that it rejected the request for assistance.
The claim for annulment of the decision of 3 March 2010, in that it stated that the applicant would be reassigned, and the claim for annulment of the addendum of 24 March 2010
49. It has consistently been held that only an act or measure producing binding legal effects that directly and immediately affect the applicant’s interest by significantly altering his legal position is an act adversely affecting him (see judgment of 14 September 2010 in Case F-52/09 Da Silva Pinto Branco
v Court of Justice, paragraph 32); such an act or measure must be taken by the competent authority and must contain a definitive position adopted by the administration (see, to that effect, judgment of 17 May 2006 in Case T-95/04 Lavagnoli
v Commission, paragraph 35). The mere manifestation on the part of the competent authority of an intention to adopt a specific decision in the future is not capable of creating corresponding rights or obligations on the part of the official or officials concerned (judgment of 16 March 1993 in Joined Cases T-33/89 and T-74/89 Blackman
v Parliament, paragraph 27).
50. In the present case, in having informed the applicant, in the decision of 3 March 2010, that he would be given ‘duties corresponding to his qualifications and grade … in a unit other than the Legal Service’, the President merely announced the administration’s intention to reassign the applicant in the future and, in so doing, did not, by that manifestation of intention alone, create either a right or an obligation on the part of the applicant. The same applies to the addendum of 24 March 2010, in which the President merely stated that the ‘measures [for the implementation] of the [decision of 3 March 2010], which [would] be taken by the secretary-general, [would] be enforced under the authority of the President’.
51. In those circumstances, and since it is common ground that the applicant’s re-assignment was effected only under decisions terminating his former duties and re-assigning him, the abovementioned claims must be rejected as inadmissible.
The claim for annulment of the decision of 3 March 2010 in that it rejected the request to refer the matter to OLAF
52. The applicant requests the Tribunal to annul the decision of 3 March 2010, in that it rejected the request to refer the matter to OLAF, and in support of that submission he raises a number of pleas, alleging breach of Article 22a(2) of the Staff Regulations, the second paragraph of Article 2 of Decision No 363/99 A, Article 60(6) of the Financial Regulation, Article 72 of Regulation No 2342/2002 and Article 11 of Decision 005/03 A on the internal rules for the implementation of the general budget of the European Union.
53. It is appropriate to examine the admissibility of the abovementioned claim.
54. In that regard, in the first place, it should be borne in mind that the Staff Regulations, as amended by Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004, establishes the right for an official to alert his immediate superiors, or an external body, to the existence of serious irregularities which he has witnessed within his institution, so that those irregularities can be known and, where appropriate, penalised. Thus, the first subparagraph of Article 22a(1) of the Staff Regulations expressly provides that ‘[a]ny official who, in the course of or in connection with the performance of his duties, becomes aware of facts which give rise to a presumption of the existence of possible illegal activity, including fraud or corruption, detrimental to the interests of the [Union], or of conduct relating to the discharge of professional duties which may constitute a serious failure to comply with the obligations of officials of the [Union], shall without delay inform either his immediate superior or his Director-General or, if he considers it useful, the Secretary-General, or the persons in equivalent positions, or [OLAF] direct’.
55. In the particular case of the staff of the EESC, the right for an official or servant to alert his immediate superiors, or OLAF direct, is also set out in a specific measure, in point of fact the first paragraph of Article 2 of Decision No 363/99 A, which provides that ‘[a]ny official or servant of [the EESC] who becomes aware of evidence which gives rise to a presumption of the existence of possible cases of fraud, corruption or any other illegal activity detrimental to the interests of the Communities, or of serious situations relating to the discharge of professional duties which may constitute a failure to comply with the obligations of officials or servants of the Communities liable to result in disciplinary or, in appropriate cases, criminal proceedings, or a failure to comply with similar obligations of members, managers or staff members not subject to the Staff Regulations shall inform without delay his Head of Service or Director-General or, if he considers it useful, his Secretary-General or [OLAF] direct’.
56. In the second place, it should be observed that, where an official makes use of the possibility afforded to him by the first subparagraph of Article 22a(1) of the Staff Regulations to inform either his immediate superior or an external body, under Article 22a(2) of the Staff Regulations the person receiving the information is required ‘without delay [to] transmit to OLAF any evidence of which he is aware from which the existence of the irregularities referred to in paragraph 1 [of Article 22a of the Staff Regulations] may be presumed’.
57. That obligation to transmit to OLAF the information communicated by an official who has given a warning is also referred to, so far as the EESC is concerned, in the second paragraph of Article 2 of Decision No 363/99 A, which provides that ‘[t]he Secretary-General and the Heads of Service (or directors) of [the EESC] shall transmit without delay to [OLAF] any evidence of which they are aware from which the existence of irregularities as referred to in the first paragraph [of this Article] may be presumed’.
58. Last, it follows from Article 60(6) of the Financial Regulation in conjunction with Article 72 of Regulation No 2342/2002 that any servant involved, within an institution, ‘in the financial management and control of transactions’ is required to inform OLAF ‘[i]n the event of any illegal activity, fraud or corruption which may harm the interests of the Community’.
59. The question for the Tribunal is whether and to what extent the decision, whereby a superior who has received from an official information such as that referred to in the first subparagraph of Article 22a(1) of the Staff Regulations, considers that he is not required to communicate that information to OLAF, does or does not constitute an act adversely affecting that official.
60. Such a question calls for a negative answer in the particular case in which the information from the official who has alerted his superiors about facts which, although they are detrimental to the interests of the Union or disclose serious failure by one or more members of the staff to comply with the obligations of officials, do not directly concern that official.
61. It should be borne in mind that, in the actual words of Article 22a of the Staff Regulations, any official who wishes to report the existence of possible illegal activity or serious failure to comply with the obligations of officials may communicate directly to OLAF the evidence which he believes he has in relation to those irregularities. Thus, where the person informed by the official refuses to refer the matter to OLAF, that official still has the option of approaching OLAF directly.
62. Furthermore, it is settled case-law that an official is not authorised to act in the interests of the law or of the institutions and can rely, in support of an action, only on complaints which are personal to him (order of 7 July 1998 in Case T-178/97 Moncada
v Commission, paragraph 39). If it were accepted that an official who has alerted his immediate superior to the existence of irregularities not directly concerning him could bring an action against that superior’s refusal to communicate that information to OLAF, that would amount to accepting that that official was authorised to act in the interests of the law. However, that finding is made without prejudice to the possibility that that official, where he considers that he has been the subject of a decision adversely affecting his rights on account of the information provided to his superiors, may bring an action against such a decision.
63. In the present case, as has been said, the facts of which the applicant complained in the request that the matter be referred to OLAF did not concern him directly, since he called into question, in particular, the Secretary-General’s refusal to impose a disciplinary measure on an official of the EESC, the irregular filling of posts as director within the EESC or again the Secretary-General’s usurpation of the prerogatives of the Bureau in relation to the appointment of other EESC officials.
64. It follows that the decision of 3 March 2010, in that it rejected the request to refer the matter to OLAF, is not an act adversely affecting the applicant and that, consequently, the claim for annulment of that decision must, to that extent, be rejected as inadmissible.
The claim for annulment of the decision of 3 March 2010 in that it rejected the request for assistance
65. In support of the abovementioned claim, the applicant puts forward a number of complaints which may, essentially, be grouped in three pleas, alleging, respectively:
– lack of competence of the President to adopt the decision of 3 March 2010, breach of procedure and failure to observe Article 41 of the Charter;
– breach of Article 86 of the Staff Regulations, Annex IX to the Staff Regulations, Decision No 635/05 of the President of the EESC adopting general implementing rules relating to disciplinary proceedings and administrative investigations (‘the general rules on the implementation of Annex IX to the Staff Regulations’) and the principle of respect for the rights of the defence;
– breach of Article 24 of the Staff Regulations and of the obligation to render assistance, failure to observe the Charter and the existence of a manifest error of assessment.
The plea alleging lack of competence of the President to adopt the decision of 3 March 2010, breach of procedure and failure to observe Article 41 of the Charter
– Arguments of the parties
66. The applicant claims that the decision of 3 March 2010, in that it rejected the request for assistance, ought to have been taken by the Bureau and not, as was the case, by the President.
67. The applicant further submits that the EESC committed a number of procedural irregularities, by failing to observe, in particular, the principle of good administration laid down in Article 41 of the Charter and also the rules on the functioning of the Bureau adopted on 23 October 2007. Apart from the President and the Presidents of the groups, the members of the Bureau never had access to the request for assistance. Nor did the members of the Bureau have access to the content of the draft decision rejecting the request for assistance. Last, the minutes of the meetings of the Bureau contain no reference either to the decision eventually adopted or to the statements of the members of the Bureau.
68. The EESC contends that the plea should be rejected.
– Findings of the Tribunal
69. Under the third indent of Article 72(1) of the internal rules, the powers conferred by the Staff Regulations on the appointing authority are to be exercised, with respect to officials in Grades AD 13, AD 12 and AD 11, by the President, on a proposal from the Secretary-General.
70. In the present case, it is common ground that, on the date of adoption of the decision of 3 March 2010, in that the latter decision rejected the request for assistance, the applicant was an official in Grade AD 13. It was therefore consistent with the third indent of Article 72(1) of the internal rules that that decision was taken by the President. It follows that the applicant cannot validly claim that the abovementioned decision ought to have been taken by the Bureau and not by the President.
71. Furthermore, since, as has just been said, the President, and not the Bureau, was competent to rule on the request for assistance, the complaint alleging the existence of procedural irregularities affecting the decision of 3 March 2010, in that, in particular, the members of the Bureau were not involved in dealing with the request for assistance, must be rejected as inoperative.
72. It follows that the first plea must be rejected.
The plea alleging breach of Article 86 of the Staff Regulations, Annex IX to the Staff Regulations, the general rules on the implementation of Annex IX to the Staff Regulations and the principle of respect for the rights of the defence
– Arguments of the parties
73. The applicant claims that, in the request for assistance, he adduced at least some evidence of the reality of the psychological harassment of which he was a victim and, in particular, of the Secretary-General’s attempts to undermine the independence of the Legal Service. Yet instead of opening an administrative investigation within the meaning of Article 86(2) of the Staff Regulations, Articles 1 and 2 of Annex IX to the Staff Regulations and Article 2 of the general rules on the implementation of Annex IX to the Staff Regulations, the President merely instructed his chef de cabinet to carry out a preliminary investigation, the findings of which, moreover, were not communicated to the applicant before the decision of 3 March 2010 was adopted.
74. In its defence, the EESC claims that the plea should be rejected.
– Findings of the Tribunal
75. It must be borne in mind that, under Article 24 of the Staff Regulations, the EU institutions are required to protect their staff against any harassment or degrading treatment whatsoever on the part of their hierarchical superiors. Furthermore, it is settled case-law that, under the obligation to render assistance, the administration, when faced with an incident which is incompatible with the good order and tranquillity of the service, must intervene with all the necessary vigour and respond with the rapidity and solicitude required by the circumstances of the case with a view to establishing the facts and taking the appropriate action in full knowledge of the facts. To that end, it is sufficient that an official who is seeking the protection of his institution provide at least some evidence of the reality of attacks of which he claims to have been the victim. When such evidence is provided, the institution concerned is under an obligation to take the necessary measures, in particular to carry out an investigation, with the cooperation of the complainant, in order to establish the facts which gave rise to the complaint (judgment of 26 January 1989 in Case 224/87 Koutchoumoff
v Commission, paragraphs 15 and 16; judgment of 21 April 1993 in Case T-5/92 Tallarico
v Parliament, paragraph 31; and judgment of 5 December 2000 in Case T-136/98 Campogrande
v Commission, paragraph 42).
76. In the present case, it is apparent from the documents in the case-file that, following the submission of the request for assistance, the President, within three days, on 10 December 2009 instructed his chef de cabinet to carry out a ‘preliminary investigation’ of the allegations of psychological harassment and irregularities made against the Secretary-General. After interviewing the applicant, on 15 December 2009 and 14 January 2010, and the individuals implicated in the request for assistance, the President’s chef de cabinet drew up, in January 2010, a detailed report in which he examined and discussed the merits of the applicant’s various accusations against the Secretary-General. In those circumstances, the EESC satisfied its obligation under the case-law referred to in the preceding paragraph, namely to carry out an investigation in order to establish the facts giving rise to the request for assistance, in cooperation with the person having submitted the request.
77. As for the argument that the EESC ought to have opened an administrative investigation within the meaning of Article 86(2) of the Staff Regulations, Articles 1 and 2 of Annex IX to the Staff Regulations and Article 2 of the general rules on the implementation of Annex IX to the Staff Regulations, it must be rejected. Although it is apparent from those provisions that the administrative investigations provided for therein form part of disciplinary proceedings and must be opened only where it may be presumed from the evidence that there has been a breach of the obligations by which the official is bound, the request for assistance contained no evidence which would have justified opening such an administrative investigation of a disciplinary nature against the Secretary-General without even first carrying out a preliminary investigation.
78. Last, the complaint that the EESC, in breach of the rights of the defence, failed to communicate to the applicant, before rejecting the request for assistance, the findings of the report drawn up by the President’s chef de cabinet and the various minutes of the hearings held in the context of the investigation which he carried out, cannot be upheld. Admittedly, respect for the rights of the defence, in all proceedings which are initiated against a person and are liable to culminate in a measure adversely affecting that person, is a fundamental principle of EU law which must be guaranteed, even in the absence of any rules governing the procedure in question (see, for example, judgment of 10 July 1997 in Case T-36/96 Gaspari
v Parliament, paragraph 32). However, in the present case the proceedings initiated by the request for assistance cannot be regarded as proceedings initiated against the applicant (see judgment of 27 June 2000 in Case T-67/99 K
v Commission, paragraph 72). Thus, the decision of 3 March 2010, in that it rejected the request for assistance, was not one of the decisions in regard to which the rights of the defence must be respected.
79. The second plea must therefore be rejected.
The plea alleging breach of Article 24 of the Staff Regulations and of the obligation to render assistance, failure to have regard to the Charter and the existence of a manifest error of assessment
– Arguments of the parties
80. The applicant claims that he was the victim of psychological harassment and that, accordingly, in rejecting the request for assistance, the President made a manifest error of assessment, breached Article 24 of the Staff Regulations and the obligation to render assistance, and breached Article 1 and Article 31(1) of the Charter, which provide, respectively, that ‘[h]uman dignity is inviolable [and] must be respected and protected’ and that ‘[e]very worker has the right to working conditions which respect his or her health, safety and dignity’.
81. The EESC replies that the applicant characterises as ‘psychological harassment’ what are only difficult relations with the Secretary-General and disagreements over files of a legal nature.
– Findings of the Tribunal
82. Article 12a(3) of the Staff Regulations defines psychological harassment as ‘improper conduct’ which requires, in order to be established, that two cumulative conditions be satisfied. The first condition relates to the existence of physical behaviour, spoken or written language, gestures or other acts which take place ‘over a period’, and are ‘repetitive or systematic’, which suggests that psychological harassment must be a process that occurs over time and presumes the existence of repetitive or continual conduct, which is ‘intentional’. The second cumulative condition, which is joined to the first by the conjunction ‘and’, requires that such physical behaviour, spoken or written language, gestures or other acts have the effect of undermining the personality, dignity or physical or psychological integrity of any person. By virtue of the fact that the adjective ‘intentional’ applies to the first condition, and not to the second, it is possible to draw a twofold conclusion. First, the physical behaviour, spoken or written language, gestures or other acts referred to in Article 12a(3) of the Staff Regulations must be intentional in character, which excludes from the scope of that provision conduct which arises accidentally. Second, it is not, on the other hand, a requirement that such physical behaviour, spoken or written language, gestures or other acts were committed with the intention of undermining the personality, dignity or physical or psychological integrity of a person.
83. In other words, there can be psychological harassment within the meaning of Article 12a(3) of the Staff Regulations without there having been any intention on the part of the harasser, by his conduct, to discredit the victim or deliberately impair the latter’s working conditions. It is sufficient that his conduct, provided that it was voluntary, objectively entailed such consequences (see, to that effect, judgment of 9 December 2008 in Case F-52/05 Q
v Commission, paragraph 135, not set aside on that point by the judgment of the General Court of the European Union of 12 July 2011 in Case T-80/09 P Commission
v Q, and judgment of 16 May 2012 in Case F-42/10 Skareby
v Commission, paragraph 65).
84. It is in light of those considerations that the Tribunal must rule on the complaint alleging the existence of psychological harassment, which requires an examination of whether the conduct in respect of which the applicant takes issue with the Secretary-General did in fact take place and a determination of whether that conduct had the effect of objectively undermining the applicant’s personality, dignity or physical or psychological integrity.
85. In the first place, the applicant claims that the Secretary-General attempted to bring pressure to bear on him to sign, in his capacity as Head of the Legal Service, legal opinions that were legally flawed. That was the case, in particular, when an official was promoted with retroactive effect.
86. In that regard, it is apparent from the documents in the case-file that on 25 January 2009, in the context of the 2008 promotion exercise, the President decided to promote an official, with retroactive effect, from 1 January 2008, in manifest breach of the rules in force within the EESC.
87. However, even though that decision was adopted ‘on a proposal from the Secretary-General’, it must be observed that the applicant has not accused the Secretary-General of being at the origin of that unlawful decision and has even acknowledged that the Secretary-General had acted under pressure from a member of the Bureau who aspired to become President of the EESC.
88. Furthermore, the applicant has adduced no sufficiently probative evidence in support of the assertion, which, moreover, is categorically disputed by the EESC, that the Secretary-General ordered the applicant, at a meeting held on 8 June 2009, to draft a legal opinion designed to show that the decision in question was lawful. In particular, the minute of that meeting, which, moreover, was drawn up by the applicant himself, contains no evidence of the existence of such pressure or of the insults allegedly made against t he applicant by the Secretary-General during that meeting.
89. Furthermore, it is true that, also on 8 June 2009, the Secretary-General sent members of the staff of the EESC an e-mail in which he pointed out that, if any administrative action should be brought against the retroactive promotion decision concerned, it would be necessary to instruct a lawyer, since ‘it was clear that the applicant [was] not capable of assisting the administration in the sense fixed by the latter’.
90. However, regard being had to the circumstances in which that e-mail was sent, the Tribunal considers that its purpose was not to call the applicant’s professional ability into question but to take note of the need, in view of the applicant’s repeated criticisms of the legality of the promotion decision at issue, to instruct a lawyer to act for the EESC in the event that an administrative action should be brought. For the remainder, in the minute which he prepared of the meeting of 8 June 2009, the applicant stated that he himself had suggested that the Secretary-General should adopt that course.
91. Thus, the complaint alleging that the Secretary-General attempted to bring pressure to bear on the Legal Service must be rejected.
92. In the second place, the applicant maintains that the EESC published a vacancy notice in which the conditions required in order to participate in the selection procedure were deliberately drafted in order to exclude his candidature.
93. In that regard, it is apparent from the documents in the case-file that on 6 July 2009, in accordance with the procedure laid down in Article 29(1) of the Staff Regulations, vacancy notice No 26/09 (‘the first vacancy notice’) was published, with the aim of filling the post of director of the Directorate for General Affairs of the EESC, at Grade AD 14, and that that notice, intended for officials of the EESC and the other institutions of the EU, required, among other conditions, ‘[a] thorough knowledge of two official languages of the European Union and knowledge of at least one other official language of the European Union’ and stated that ‘[f]or service-related reasons, a good knowledge [of English] and [of French] [was] strongly desired’. The applicant submitted his candidature for the post covered by the first vacancy notice.
94. Subsequently, after the Bureau decided on 29 September 2009 to withdraw the first vacancy notice and to ‘republish [the vacancy notice] according to Article 29[(1) and (2)] of [the Staff Regulations]’, vacancy notice No 43/09 to fill the same post of Director of the Directorate for General Affairs was published both on the EESC’s intranet and in the Official Journal of the European Union
(OJ 2009 C 247 A, p. 1; ‘the new vacancy notice’). The language requirements in the new vacancy notice were now as follows: ‘Thorough knowledge of one official language of the European Union and very good knowledge of at least two other official languages of the European Union. For service-related reasons, a good knowledge of English and French is strongly desired’. The applicant confirmed his candidature for the post referred to in the new vacancy notice before withdrawing his candidature on 3 December 2009.
95. Admittedly, as the Tribunal held in a separate judgment delivered today (judgment of 25 September 2012 in Case F-51/40 Bermejo Garde
v EESC ), such a change in the language requirements had the effect of excluding in practice the applicant’s candidature for the post of Director of the Directorate for General Affairs, as he had a thorough knowledge of only one official language (Spanish), at least very good knowledge of a second official language (French), but only a ‘good knowledge’ of a third official language of the Union (English). The Tribunal inferred that the new vacancy notice thus constituted an act adversely affecting the applicant.
96. However, the applicant has provided no precise and consistent indicia to support the allegation that the language requirements were altered with the objective of excluding his candidature.
97. On the contrary, it is apparent from the documents in the case-file that the EESC informed the applicant and the other candidates who, like him, had responded to the first vacancy notice that, unless they indicated the contrary, they were be regarded as also being candidates for purposes of the new vacancy notice, which contradicts the allegation of misuse of power.
98. Furthermore, it should be observed that, as is also apparent from the documents in the case-file, language requirements identical to those set out in the new vacancy notice were also to be found in a later vacancy notice, published on 24 February 2009, intended to fill the post of Director of the Directorate for Human Resources and Finance.
99. In the third place, the applicant claims that the Secretary-General summoned him to a meeting held on 15 October 2009, on the pretext of restoring good relations between the Secretariat General and the Legal Service but which in fact constituted a veritable ‘disciplinary hearing’. However the applicant has adduced no evidence that the meeting in question was of such a nature. In particular, the fact that the Head of Unit ‘Service for assistance to the staff, individual rights, equal opportunities’ was present at that meeting, alongside the Secretary-General, cannot constitute such evidence.
100. In those circumstances, as the facts in respect of which the applicant takes issue with the Secretary-General, whether taken in isolation or as a whole, did not have the effect of objectively undermining the applicant’s personality, dignity or physical or psychological integrity, the plea alleging that the President made a manifest error of assessment in refusing to find that the applicant had been a victim of psychological harassment and in rejecting the request for assistance must be rejected.
101. Last, while the applicant claims that the President attempted to persuade him simply to withdraw his request for assistance, which, in the applicant’s submission, demonstrates in particular the President’s lack of impartiality, that fact shows only that the President, who was convinced that the applicant’s accusations of psychological harassment were unfounded, endeavoured, while respecting the duty to have regard for the applicant’s welfare and the principle of good administration, to resolve the situation on a friendly basis. In any event, such an initiative cannot affect the legality of the decision of 3 March 2010, in that it rejected the request for assistance, which, as has been said, was taken at the end of a regular procedure and is not vitiated by any manifest error of assessment.
102. It follows from the foregoing that the claim for annulment of the decision of 3 March 2010, in that it rejected the request for assistance, must be rejected.
2. The claim for annulment of the decision terminating the applicant’s previous duties and the decision reassigning him
103. In support of the claim for annulment of the abovementioned decisions, which, in the light of their scope, constitute acts adversely affecting the applicant (see judgment of 16 April 2002 in Case T-51/01 Fronia
v Commission, paragraph 32), seven pleas are, in essence, put forward, alleging, respectively:
– lack of competence of the person who adopted the act;
– breach of the principle of respect for the rights of the defence;
– breach of the obligation to state reasons;
– infringement of Articles 12a, 22a and 86 of the Staff Regulations;
– manifest error of assessment;
– breach of the duty to have regard for the welfare of the officials and the principle of good administration;
– infringement of Article 22b(1) of the Staff Regulations.
The plea alleging lack of competence of the person who adopted the act
Arguments of the parties
104. The applicant observes that, beyond appearances, the real author of the decisions terminating his previous duties and reassigning him was the Secretary-General and not the President, as evidenced by the fact that, in the decision terminating his previous duties, the President delegated to the Secretary-General the task of determining the applicant’s new duties.
105. In any event, the applicant further submits that the wording of the decisions at issue shows that they were taken after consultation and with the agreement of the Secretary-General, although, in such matters, Article 72(1) of the internal rules recognises that the Secretary-General has the power only to make proposals.
106. The EESC replies that the President was competent to take the decisions terminating the applicant’s previous duties and reassigning him.
Findings of the Tribunal
107. As stated at paragraph 69 of this judgment, the third indent of Article 72(1) of the internal rules of the EESC provides that the powers conferred on the appointing authority by the Staff Regulations are to be exercised, with respect to officials in Grades AD 13, AD 12 and AD 11, by the President, on a proposal from the Secretary-General.
108. In the present case, it follows from the very wording of the decisions terminating the applicant’s previous duties and reassigning him that those decisions were adopted by the President, as evidenced by the latter’s signature at the bottom of those decisions.
109. However, the applicant relies on the fact that, in the addendum of 24 March 2010, the President stated that the ‘measures [to implement]’ the decision terminating the applicant’s previous duties, namely the determination of his new duties, ‘w[ould] be taken by the Secretary-General’. It cannot be inferred solely from those words, however, that the decisions terminating the applicant’s previous duties and reassigning him, which bear the President’s signature, were in fact adopted by the Secretary-General and not by the President. Furthermore, in the addendum of 24 March 2010 the President had emphasised that the ‘[implementing] measures’ would be executed ‘on his authority’.
110. Last, while it is true that in the decisions terminating the applicant’s previous duties and reassigning him the President stated that they had been taken ‘with the agreement of the Secretary-General’, such a choice of words, albeit unfortunate, does not mean that the President mistakenly believed that he was bound by a favourable decision of the Secretary-General and was thus unaware of the extent of his powers under the third indent of Article 72(1) of the internal rules.
111. It follows that the plea alleging lack of competence of the person who adopted the act must be rejected as unfounded.
The plea alleging breach of the principle of respect for the rights of the defence
Arguments of the parties
112. The applicant claims that, having failed to hear the applicant before adopting the decisions terminating his previous duties and assigning him, the President breached the principle of respect for the rights of the defence, enshrined, in particular, in Article 41(2) of the Charter.
113. The EESC contends that the plea should be rejected.
Findings of the Tribunal
114. It has been held that a decision reassigning an official against his will, proposed against a background of difficult relations such as that in the present case, requires the application of the principle of respect for the rights of the defence, a fundamental principle of EU law which must be guaranteed even in the absence of any rules governing the procedure in question (judgment of 6 December 2007 in Case C-59/06 P Marcuccio
v Commission, paragraph 46).
115. Accordingly, such a decision can be taken only after the official concerned has been given the opportunity to put forward his view concerning the draft decision, in the context of an oral and/or written exchange of views initiated by the appointing authority, proof of which must be adduced by the latter ( Marcuccio
v Commission, paragraph 47).
116. In the present case, it is apparent from the documents in the case-file that in the decision of 3 March 2010 the President informed the applicant that he intended to reassign him, since he informed the applicant that he would shortly be given ‘duties corresponding to his qualifications and grade … in a unit other than the Legal Service’.
117. Thus, it was open to the applicant, the addressee of the decision of 3 March 2010, to formulate any observations on the proposal to reassign him.
118. In those circumstances, as the applicant was given the opportunity to put forward his view before the President adopted the decisions terminating the applicant’s previous duties and reassigning him, the plea alleging breach of the principle of respect for the rights of the defence must be rejected.
The plea relating to the obligation to state reasons
Arguments of the parties
119. The applicant claims that the decisions terminating his previous duties and reassigning him did not state the reasons on which they were based, contrary to Article 41(2) of the Charter.
120. The EESC contends that the plea should be rejected.
Findings of the Tribunal
121. It should be borne in mind that, according to consistent case-law, the purpose of the obligation to state reasons laid down in the second subparagraph of Article 25 of the Staff Regulations is, first, to provide the person concerned with sufficient information to evaluate the merits of the act adversely affecting him and whether it is appropriate to bring an action before the Tribunal and, second, to enable the Tribunal to review the legality of the act (judgment of 15 September 2005 in Case T-132/03 Casini
v Commission, paragraph 30 and the case-law cited). In addition, the Charter asserts, at Article 41(2)(c), that the fundamental right to good administration includes, in particular, ‘the obligation for the administration to give reasons for its decisions’.
122. Furthermore, a decision involving the transfer of an official against his will is an act adversely affecting that official within the meaning of Article 25 of the Staff Regulations and must therefore state the reasons on which it is based (judgment of 23 November 1999 in Case T-129/98 Sabbioni
v Commission, paragraph 28).
123. Last, it has consistently been held that the extent of the duty to state reasons must be determined on the basis of the particular facts of each case (judgment of 14 July 1977 in Case 61/76 Geist
v Commission, paragraph 28, and judgment of 13 December 1989 in Case C-169/88 Prelle
v Commission, paragraph 9). In particular, a decision is sufficiently reasoned where it is adopted in a context known to the official con cerned, which enables him to understand the extent of the measure taken against him (judgment of 1 April 2004 in Case T-198/02 N
v Commission, paragraph 70).
124. As is clear from the case-law, a decision was taken in a context known to the official concerned and therefore satisfies the requirements to state reasons laid down in Article 25 of the Staff Regulations where the circumstances in which the act in question was adopted, and also the service notes and other communications accompanying it, reveal the essential factors which guided the administration in its decision ( Sabbioni
v Commission, paragraphs 29 and 30).
125. In the present case, it is true that the decisions terminating the applicant’s previous duties and reassigning him are not reasoned to the requisite legal standard and that, in particular, the decision terminating his previous duties merely refers generally to ‘the interests of the service’.
126. It must be held, however, that the decisions terminating the applicant’s previous duties and reassigning him were taken in a context known to him. In the decision of 3 March 2010, the President informed the applicant that the reassignment measure which would shortly be taken in respect of him was justified by the rejection of the allegations of ‘persecution at work’ which the applicant had raised against the Secretary-General and he added that that measure, like the other measures that were likely to be taken in the context of that reassignment, were intended to ‘favour the smooth progress of the administrative activity’ and to enable ‘the difficulties and disputes within the secretariat general to be overcome, while observing the principles of good administration and the exercise by the various structures of their competences, responsibilities and powers’. Furthermore, the wording of the complaint which the applicant lodged against the decisions at issue shows that he was aware that those decisions had been taken because in the administration’s view the request for assistance and the request to refer the matter to OLAF were unfounded.
127. In any event, even on the assumption that the context in which the decisions terminating the applicant’s previous duties and reassigning him did not enable the applicant to understand the scope of those decisions, it must be borne in mind that, according to the case-law, a lack of reasoning may be covered by further information supplied by the administration during the proceedings (see judgment of 19 September 1996 in Case T-158/94 Brunagel
v Parliament, paragraph 115). That was so in the present case, as the EESC explained in detail in its defence and its rejoinder the grounds of fact and of law forming the basis of the decisions terminating the applicant’s previous duties and reassigning him. Thus, in particular, in the defence, the EESC observed that ‘the personal extent and the vehemence of the various charges which the applicant put forward in his complaint, in particular against the person of the Secretary-General, [had] ruptured the degree of confidence required very particularly by the duties entrusted to the applicant in his capacity as Head [of the Legal Service]’ and that ‘the only workable solution from the point of view of the interests of the service and the interests of the applicant [was] to give the applicant a post not involving a close relationship with the Secretary-General’.
128. It follows that the third plea raised, alleging breach of the obligation to state reasons, must be rejected.
The plea alleging infringement of Articles 12a, 22a and 86 of the Staff Regulations
Arguments of the parties
129. The applicant claims that, in breach of Articles 12a, 22a and 86 of the Staff Regulations, he was the victim of a disguised disciplinary measure for having sought the assistance of his employer and having informed his employer of the existence of serious irregularities committed by the Secretary-General.
130. The EESC contends that the plea should be rejected.
Findings of the Tribunal
131. Article 12a(2) of the Staff Regulations provides that ‘[a]ny official who has been the victim of psychological or sexual harassment shall not suffer any prejudicial effects on the part of the institution’ and that ‘[a]n official who has given evidence on psychological or sexual harassment shall not suffer any prejudicial effects on the part of the institution, provided that the official has acted honestly’. As for Article 22a(3) of the Staff Regulations, it provides that an official who, having knowledge of facts referred to in Article 22a(1) of the Staff Regulations, that is to say, of facts which give rise to a presumption of the existence of possible illegal activity, ‘including fraud or corruption, detrimental to the interests of the [Union]’, or a serious failure to comply with the obligations of officials, immediately informs his immediate superior or OLAF direct, ‘shall not suffer any prejudicial effects on the part of the institution …, provided that he acted … honestly’. Last, under Article 86(1) of the Staff Regulations, ‘[a]ny failure by an official or former official to comply with his obligations under the Staff Regulations, whether intentionally or through negligence on his part, shall make him liable to disciplinary action’.
132. In the present case, it cannot be disputed that the applicant suffered harm after communicating his note of 7 December 2009, which contained the request for assistance and the request that the matter be referred to OLAF. In effect, precisely because he sent that note, the applicant was removed from his duties as person in charge of the Legal Service, which he had carried out since 1 June 1997.
133. However, that harm can be characterised as a breach by the EESC of Articles 12a and 22a of the Staff Regulations only if it is established that the applicant did in fact honestly communicate evidence giving rise to a presumption, first, of the existence of psychological harassment of which he was the victim and, second, of an illegal activity, including fraud or corruption, or of a serious failure to comply with the obligations of officials.
134. In that regard, in order to determine whether an official made honest use of the right of disclosure provided for in Articles 12a and 22a of the Staff Regulations, the Tribunal must take a certain number of factors into consideration.
135. The Tribunal must first of all ascertain whether the information which the applicant decided to communicate to his superiors or, as the case may be, to OLAF direct, related to irregularities which, on the assumption that they were in fact committed, were obviously serious. That is borne out by the fact that Article 22a(1) of the Staff Regulations refers to fraud and corruption as being among the illegal activities communication of which is provided for and adds that such activities must be ‘detrimental to the interests of the [Union]’. Likewise, still according to Article 22a(1) of the Staff Regulations, a failure to comply with the obligations of officials can be reported only if it is ‘serious’.
136. The second factor to be taken into consideration is the authenticity or at least the likelihood of the reality of the information disclosed. The exercise of freedom of expression, which underlies the possibility for an official to lodge a complaint in respect of psychological harassment or the existence of unlawful acts, or a serious failure to fulfil the obligations of officials, entails duties and responsibilities, and anyone who chooses to disclose such information must carefully ascertain, in so far as the circumstances permit, that it is accurate and credible. Thus, an official who complains of irregularities which from his viewpoint fall within the scope of Articles 12a and 22a of the Staff Regulations is required to ensure that the accusations he makes are supported by accurate facts or, at least, that they are founded on a ‘sufficient factual basis’ (see Eur. Court H.R., Heinisch v. Germany, 21 July 2011, Application no. 28274/08, § 79). In that regard, it has been held that Article 22a of the Staff Regulations was aimed solely at the communication of actual facts which, on an initial assessment, led the official communicating them to form a reasonable presumption of the existence of an illegal activity or a serious breach of obligations and that that provision must, moreover, be reconciled with the obligations of objectivity and impartiality placed on officials, with the obligation to have regard to the dignity of their post and with their duty of loyalty, and also with the obligation to respect the honour and the presumption of innocence of the persons concerned (judgment of 13 January 2011 in Case F-77/09 Nijs
v Court of Auditors, paragraphs 66 to 70).
137. The Tribunal must also take into consideration the means employed by the official in making the disclosure and, with particular respect to irregularities covered by Article 22a(1) of the Staff Regulations, it must ascertain whether the official approached the competent authority or body, namely ‘his immediate superior or his Director-General or, if he considers it useful, the Secretary-General, or the persons in equivalent positions, or [OLAF] direct’.
138. Last, the motive of the official who reports illegalities is another factor in the assessment of whether he acted honestly. A denunciation motivated by a personal grievance or animosity or again by the prospect of a personal advantage, in particular a pecuniary advantage, cannot be regarded as being made honestly.
139. It is in the light of the foregoing considerations that the Tribunal must examine the merits of the plea alleging breach of Articles 12a, 22a and 86 of the Staff Regulations.
140. In the present case, it is common ground that in the note of 7 December 2009 the applicant made serious accusations against, mainly, the Secretary-General, whom he accused of psychological harassment and of having engaged in illegal activities, some of which constituted offences under the Belgian criminal code.
141. However, the Tribunal considers that the note of 7 December 2009 contained no evidence giving rise to a presumption of psychological harassment within the meaning of Article 12a of the Staff Regulations, or of an illegal activity or serious failure to comply with the obligations of officials within the meaning of Article 22a(1) of the Staff Regulations.
142. In the first place, the applicant took issue with the Secretary-General for having psychologically harassed him, by having, in particular, required him to draw up legal opinions that were legally incorrect. However, as stated above, the applicant has adduced no evidence on which it might be established, or at least supposed, that he was the victim of conduct that undermined his personality, his dignity or his physical or mental integrity.
143. In the second place, the applicant also complained that the Secretary-General had failed to refer to OLAF the case of an official who had appropriated materials belonging to the EESC and had imposed no disciplinary penalty on that official. However, such action on the part of the Secretary-General cannot be characterised as illegal activity or as a serious failure to comply with the obligations of officials within the meaning of Article 22a(1) of the Staff Regulations, in view, in particular, of the small value of the materials appropriated by the official in question and the opinion of the Disciplinary Board that no measure should be imposed on him. It should be emphasised, moreover, that the Secretary-General addressed a warning to that official, on the basis of Article 3(b) of Annex IX to the Staff Regulations.
144. In the third place, the applicant accused the Secretary-General of having breached both Article 27 of the Financial Regulation and Article 21(1) of Annex IX to the Staff Regulations. According to the applicant, the Secretary-General ordered that the sum of EUR 32 019 be paid to the lawyer representing the official referred to in the preceding paragraph, corresponding to fees charged by that lawyer not only in the disciplinary proceedings initiated against the official but also on the occasion of the investigation carried out before the disciplinary proceedings were initiated. As the applicant observes, Article 21(1) of Annex IX to the Staff Regulations provides that an institution is required to pay only the fees incurred in disciplinary proceedings in which no penalty is imposed.
145. However, it has not been established that the fees in question were not incurred exclusively on the occasion of the disciplinary proceedings against the official guilty of unlawful acts. Furthermore, even if the applicant, in his capacity as Head of the Legal Service, could properly question the amount of that sum by reference to similar European civil service proceedings, it is not apparent from the case-file that, in view of the length of the disciplinary proceedings and the number of sessions held by the Disciplinary Board, that sum was manifestly excessive and that the Secretary-General’s order that that sum be paid therefore justified the request that the matter be referred to OLAF.
146. In the fourth place, still in the note of 7 December 2009, the applicant complained of the irregularities which vitiated, in 2009, the procedures for filling posts as Director of Directorate A Consultative Works and as Director of Human and Financial Resources, those irregularities relating mainly to the qualifications required in order to occupy those posts, the composition of the selection boards or the examination of candidatures. However, while it is true that the President’s chef de cabinet himself confirmed, in his investigation report, the existence of ‘regrettable … errors’, it is not apparent from the documents in the case-file that those errors were sufficiently serious to be regarded as equivalent to the irregularities referred to in Article 22a(1) of the Staff Regulations. Last, the applicant himself stated in his note of 7 December 2009, first, that the candidate selected for the post of Director of Directorate A of Consultative Works had been selected following a procedure exempt from ‘practical possibilities of error or fraud’ and, second, that the procedure organised for the recruitment of the Director of Human and Financial Resources had eventually been annulled shortly before the note of 7 December 2009 was sent.
147. In the fifth place, contrary to the allegations made in the note of 7 December 2009, it is not apparent from the documents in the case-file that the Secretary-General usurped the powers of the Bureau or the President in appointing certain senior officials of the EESC. Furthermore, while it is true that on the date on which the note of 7 December 2009 was sent, the Secretary-General had been acting as interim Director of Human and Financial Resources for more than a year, such a situation, which even the President’s chef de cabinet described as ‘unusual’ in his investigation report, was not so serious that it could form the subject-matter of a complaint made pursuant to Article 22a(1) of the Staff Regulations. The same applies to the applicant’s criticism of the Secretary-General for not having described in sufficient detail the nature of the duties and powers of the Deputy Secretary-General.
148. In the sixth, and last, place, the applicant also challenged, in the note of 7 December 2009, the Head of Unit ‘Recruitment, Careers, Training’ of the Directorate for Human and Financial Resources, whom he accused of having breached Article 11a(1) of the Staff Regulations, which provides that ‘[a]n official shall not, in the performance of his duties and save as hereinafter provided, deal with a matter in which, directly or indirectly, he has any personal interest such as to impair his independence, and, in particular, family and financial interests’. In that regard, it follows from the documents in the case-file that that Head of Unit of the Directorate of Human and Financial Resources was a candidate for post of Director of that unit and that he tried to convince certain members of the Legal Service that an opinion which it had issued concerning the possibility for an official in Grade AD 14 to apply for that post was incorrect. However, given the responsibilities exercised by that Head of Unit, the fact that he disagreed with the terms of an opinion of the Legal Service cannot, as such, show that that official failed to comply with his obligations under Article 11a(1) of the Staff Regulations.
149. Thus, the information in the note of 7 December 2009 did not reveal the existence of administrative irregularities so serious as to give rise to the presumption of the existence of psychological harassment of which the applicant was a victim or, more generally, the existence of illegal activity, including fraud or corruption, or of a serious failure to comply with the obligations of officials within the meaning of Article 2a(1) of the Staff Regulations.
150. Furthermore, although Article 22a(1) of the Staff Regulations provides that an official intending to make use of his right to lodge a complaint guaranteed by that article ‘shall without delay inform either his immediate superior or his Director-General or, if he considers it useful, the Secretary-General, or the persons in equivalent positions’, it should be observed that the applicant did not confine himself to sending the note of 7 December 2009 to the President and also to the Presidents of the groups, but that, by e-mail sent on the very day on which he submitted the note of 7 December 2009, the applicant informed the other members of the Bureau that he had just left at the premises of their group, for the attention of each of them, an envelope containing a copy of that note. By seeking to give particularly wide publicity to the accusations made in that note, the applicant failed to comply with the obligation to show the greatest prudence and the greatest discretion in the publicity given to allegations coming within the competence of OLAF ( Nijs
v Court of Auditors, paragraph 80).
151. In those circumstances, the applicant cannot validly claim that the decisions terminating his previous duties and reassigning him, which, moreover, did not remove from him his capacity as Head of Unit, were adopted in breach of Articles 12a(2) and Articles 22a(3) of the Staff Regulations or constituted a disguised disciplinary measure in breach of Article 86 of the Staff Regulations.
152. Consequently, the fourth plea cannot be accepted.
The plea alleging a manifest error of assessment
Arguments of the parties
153. The applicant claims that the decisions terminating his previous duties and reassigning him are vitiated by a manifest error of assessment because they were not adopted in the interests of the service. The applicant emphasises in particular that he was not replaced at the head of the Legal Service and that the EESC delayed in showing in its organigramme the changes made by those decisions, in breach of Article 71(6) of the Internal Rules. The applicant adds, last, that his new responsibilities were significantly below those which he exercised before being reassigned.
154. The EESC replies that the decisions terminating the applicant’s previous duties and reassigning him were adopted in the interests of the service, owing to the lack of trust between the applicant and the Secretary-General following the unfounded personal attacks made by the former against the latter. In the EESC’s submission, the only workable solution both from the point of view of the interests of the EESC and from the point of view of the interests of the applicant obliged it to give the applicant a post not involving any close relationship with the Secretary-General.
155. The EESC further observes that, contrary to the applicant’s assertions, his new post does not entail a significant reduction in his responsibilities.
Findings of the Tribunal
156. According to the case-law, while it is true that the administration has every interest in assigning its officials to posts which accord with their aptitudes and their personal preferences, an official cannot for all that be recognised as having a right to retain specific duties. Accordingly, although the Staff Regulations, in particular Article 7, do not expressly provide for the possibility of ‘reassigning’ an official, it is clear from settled case-law that the institutions have a wide discretion in the organisation of their departments according to the tasks conferred on them and in the assignment, in view of those tasks, of staff who are made available to them, on condition, however, first, that that assignment is carried out in the interests of the service and, second, that the principle of assignment to an equivalent post is respected (judgment of 23 March 1988 in Case 19/87 Hecq
v Commission, paragraph 6, and judgment of 25 January 2007 in Case F-55/06 de Albuquerque
v Commission, paragraph 55).
157. In the present case, it is therefore necessary to consider whether the decisions terminating the applicant’s functions and reassigning him satisfied the two abovementioned conditions.
– The interests of the service
158. It should be borne in mind, first of all, that in the light of the discretion enjoyed by the institutions in the evaluation of the interests of the service, review by the Tribunal of compliance with the conditions relating to the interests of the service must be limited to the question whether the appointing authority remained within reasonable limits and did not use its discretion in a manifestly incorrect fashion (judgment of 12 December 2000 in Case T-223/99 Dejaiffe
v OHIM, paragraph 53).
159. In that regard, according to the case-law, difficult internal relations, where they cause tension prejudicial to the proper functioning of the service, may justify, in the interests of the service, the transfer of an official in order to put an end to an administrative situation which has become intolerable (see, to that effect, judgment of 7 March 1990 in Joined Cases C-116/88 and C-149/88 Hecq
v Commission, paragraph 22; judgment of 12 November 1996 in Case C-294/95 P Ojha
v Commission, paragraph 41; and judgment of 28 May 1998 in Joined Cases T-78/96 and T-170/96 W
v Commission, paragraph 88). Such a reassignment, decided upon in the interests of the service, does not require the consent of the official in question (see, to that effect, judgment of 15 September 1998 in Case T-23/96 De Persio
v Commission, paragraph 138). Furthermore, for the purpose of examining whether strained relations may justify, in the interests of the service, the transfer of an official, there is no need to identify the person responsible for the incidents in question or even to know whether the accusations made are well founded (see, to that effect, judgment of 12 July 1979 in Case 124/78 List
v Commission, paragraph 13, and Ohja
v Commission, paragraph 41).
160. In the present case, on the date on which the decision terminating the applicant’s previous duties was adopted, relations between the applicant and the Secretary-General were clearly particularly conflictual on account of the submission of the note of 7 December 2009. Those relations were, in the light of the tasks entrusted to the Legal Service and, in particular, of the assistance which the latter must provide to the Secretary-General, likely to disrupt the functioning of the EESC.
161. In those circumstances, and since the note of 7 December 2009, as stated above, contained no evidence giving rise to a presumption of psychological harassment or irregularities within the meaning of Article 22a(1) of the Staff Regulations, the President did not make a manifest error of assessment in considering that the interests of the service required that an administrative situation which had become damaging for the EESC must be brought to an end and justified the reassignment of the applicant.
– The equivalence of posts
162. It should be borne in mind that, in the event of a change in an official’s duties, the principle that the post to which an official is assigned should correspond to his grade, set out in Article 7 of the Staff Regulations, calls for a comparison between his present duties and his grade, not between his present and previous duties (judgment of 8 May 2008 in Case F-119/06 Kerstens
v Commission, paragraph 96).
163. Accordingly, the rule that the post should correspond to the grade does not preclude a decision from entailing the assignment of new duties which, although they are different from those previously carried out and are perceived by the person concerned as bringing about a reduction of his responsibilities, are none the less consistent with a post corresponding to his grade. Thus, an actual reduction of the responsibilities of an official does not breach the rule that the post should correspond to the grade unless his new responsibilities, taken together, fall clearly short of those corresponding to his grade and post, taking account of their character, their importance and their scope (Case 19/87 Hecq
v Commission, paragraph 7, and judgment of 23 October 1990 in Case T-46/89 Pitrone
v Commission, paragraph 35).
164. Last, while the Staff Regulations aim to guarantee officials the grade obtained and also a post corresponding to that grade, they do not grant officials any right to a specific post, but, on the contrary, leave to the appointing authority the power to assign officials, in the interests of the service, to the various posts corresponding to their grade ( W
v Commission, paragraph 102). Furthermore, while it cannot be denied that the administration has every interest in assigning its officials to posts which accord with their particular aptitudes and their personal preferences, officials cannot be recognised as having a right to perform or to retain specific duties or to refuse any other duties relating to their basic post (judgment of 22 October 1981 in Case 218/80 Kruse
v Commission, paragraph 7; judgment of 1 June 1983 in Joined Cases 36/81, 37/81 and 218/81 Seton
v Commission, paragraphs 41 to 44; and W
v Commission, paragraph 105).
165. In the present case, it is common ground that the decision reassigning the applicant placed him in the Directorate for Logistics ‘as Head of Unit and with his post’, ‘in order, inter alia, to deal with legal matters relating to contracts and invitations to tender’. It has not been established that those new duties did not correspond to the applicant’s grade. Although the applicant observes that legal issues relating to contracts and invitations to tender had, before the decision reassigning him, only a marginal character within the EESC, it cannot be inferred from that fact that the task consisting in dealing with legal issues within the Directorate for Logistics could not, after the applicant’s reassignment, increase in importance and, by virtue of the applicant’s legal expertise, be the subject of increased attention within the EESC. Furthermore, the applicant himself acknowledges that he was entrusted with drafting a vade mecum
relating to the legal aspects of contracts and invitations to tender.
166. Last, the fact that the applicant’s new duties no longer involved staff training does not prove that those duties fell clearly short of those corresponding to his grade, since, as has been held, the highest grades in the hierarchy are not necessarily reserved for persons occupying a training post, but may be allocated to officials who exercise duties as senior legal adviser ( Kerstens
v Commission, paragraph 101).
167. In those circumstances, the applicant cannot validly claim that the decision reassigning him breached the principle of equivalence of posts.
168. It follows that the fifth plea, alleging manifest error of assessment, must be rejected.
The plea alleging breach of the duty to have regard to the welfare of officials and of the principle of good administration
Arguments of the parties
169. The applicant claims that the appointing authority failed to comply with its duty to have regard to the welfare of officials and the principle of good administration by adopting, precipitately and without justification, the decisions terminating his previous duties and reassigning him. The applicant further submits that he was left without a post for at least 13 days, between 24 March and 13 April 2010.
170. The EESC contends that the plea should be rejected.
Findings of the Tribunal
171. Although, according to consistent case-law, the administration’s duty to have regard for the welfare of its servants reflects the balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between the official authority and civil servants, the requirements of that duty cannot prevent the appointing authority from adopting the measures it believes necessary in the interests of the service, since the filling of each post must be based primarily on the interests of the service. Having regard to the extent of the discretion enjoyed by the institutions in evaluating the interests of the service, the Tribunal must confine its review to the question whether the appointing authority remained within acceptable bounds and did not use its discretion in a manifestly incorrect way.
172. In the present case, since, as has just been said, the decisions terminating the applicant’s previous duties and reassigning him were taken in the interests of the service, and since it has not been established that they constituted a disguised disciplinary measure, the plea alleging that those decisions breached the duty to have regard for the welfare of officials and also the principle of good administration must be rejected. Furthermore, although the applicant claims that he remained without a post between 24 March and 13 April 2010, that circumstance, albeit regrettable, has no impact on the legality of those decisions.
173. It follows that the sixth plea cannot be upheld.
The plea alleging infringement of Article 22b of the Staff Regulations
Arguments of the parties
174. The applicant claims, last, that the appointing authority breached Article 22b of the Staff Regulations by failing to provide him, within 60 days of submission of the note of 7 December 2009, with any information as to the period after which he would have been entitled, in the event of inactivity on the part of the administration, to disclose the information in his note to the President of the European Commission, the President of the Court of Auditors of the European Union, the President of the Council of the European Union, the President of the European Parliament or the European Ombudsman.
175. The EESC contends that the plea should be rejected.
Findings of the Tribunal
176. According to Article 22b(1) of the Staff Regulations, ‘[a]n official who further discloses information as defined in Article 22a to the President of the Commission or of the Court of Auditors or of the Council or of the European Parliament, or to the European Ombudsman, shall not suffer any prejudicial effects on the part of the institution to which he belongs provided that both of the following conditions are met: (a) the official honestly and reasonably believes that the information disclosed, and any allegation contained in it, are substantially true; and (b) the official has previously disclosed the same information to OLAF or to his own institution and has allowed … OLAF or that institution the period of time set by [OLAF] or the institution, given the complexity of the case, to take appropriate action. The official shall be duly informed of that period of time within 60 days.’
177. In the present case, the applicant’s plea would be relevant only if the appointing authority had adopted a decision detrimental to the applicant on the ground that, in application of Article 22b of the Staff Regulations, the applicant had brought the matter before the President of the Commission, the President of the Court of Auditors, the President of the Council, the President of the Parliament or the Ombudsman. Apart from the fact that it is not established, or even alleged, that the applicant made use of that procedure referred to in Article 22b of the Staff Regulations, the decisions terminating his duties and reassigning him have in any event no connection with such a procedure.
178. The last plea must therefore be rejected as inoperative.
179. As all the pleas directed against the decisions terminating the applicant’s previous duties and reassigning him have been rejected, the claims for annulment of those decisions must be rejected.
180. It follows from all the foregoing that the claims for annulment must all be rejected, either as inadmissible or as unfounded.
3. The claim for damages
Arguments of the parties
181. The applicant claims that the illegality of the decisions contested in the present action caused him non-pecuniary damage, which he evaluates on an equitable basis at EUR 15 000.
182. As for the pecuniary damage which he claims to have sustained, the applicant emphasises that he was obliged to incur legal fees in connection with the administrative proceedings, for which he seeks reimbursement in the sum of EUR 1 000.
183. The EESC contends that the claim for damages should be rejected.
Findings of the Tribunal
184. According to settled case-law, claims for compensation for damage in proceedings relating to the civil service must be rejected in so far as they are closely associated with the claims seeking annulment which have themselves been rejected as unfounded (judgment of 10 June 2004 in Case T-330/03 Liakoura
v Council, paragraph 69). In the present case, as examination of the complaints put forward in support of the claims for annulment disclosed no illegality vitiating the contested decisions and therefore no fault of such a kind as to render the administration liable, the claims for compensation of the pecuniary and non-pecuniary damage which the applicant claims to have sustained owing to the illegality of the contested decisions must also be rejected.
185. Furthermore, in the event that the applicant also intended that the EESC should be ordered to make reparation for damage resulting from service-related faults not closely associated with the claims for annulment, such a claim would be inadmissible, as the applicant did not submit a request within the meaning of Article 90(1) of the Staff Regulations to the administration.
186. It follows from all of the foregoing that the action must be dismissed.
Costs
187. Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title II of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that he is not to be ordered to pay any.
188. It follows from the grounds of the present judgment that the applicant is the unsuccessful party. Furthermore, the EESC expressly claimed in its pleadings that the applicant should be ordered to pay the costs. However, as stated, although the evidence supplied by the applicant in his note of 7 December 2009 was not sufficient to prove or to demonstrate the likelihood of the existence of psychological harassment or serious irregularities within the meaning of Article 22a of the Staff Regulations, it none the less showed the existence of a set of irregularities. Thus, as the circumstances of the present case justify the application of Article 87(2) of the Rules of Procedure, the parties must be ordered to bear their own costs, including those incurred in the interim measures proceedings.
Operative part
On those grounds,
THE CIVIL SERVICE TRIBUNAL (First Chamber)
hereby:
1. Dismisses the action;
2. Orders the parties to bear their own costs.