62011FJ0103_EN
Parties
Grounds
Operative part
Parties
In Case F‑103/11,
ACTION brought under Article 270 TFEU,
CG, a member of the staff of the European Investment Bank, residing in Sandweiler (Luxembourg), represented initially by N. Thieltgen and subsequently by J.-N. Louis and D. de Abreu Caldas, lawyers,
applicant,
supported by
European Data Protection Supervisor (EDPS),
represented initially by I. Chatelier and H. Kranenborg and subsequently by I. Chatelier and A. Buchta, acting as Agents,
intervener,
v
European Investment Bank (EIB),
represented by G. Nuvoli and T. Gilliams, acting as Agents, and by A. Dal Ferro, lawyer,
defendant,
THE CIVIL SERVICE TRIBUNAL (Second Chamber)
composed of M. I. Rofes i Pujol (Rapporteur), President, K. Bradley and J. Svenningsen, Judges,
Registrar: J. Tomac, Administrator,
having regard to the written procedure and further to the hearing on 6 March 2014,
gives the following
Judgment
Grounds
1. By application received at the Registry of the Tribunal on 11 October 2011, CG requests the Tribunal, in essence, to annul the decision of 27 July 2011 of the President of the European Investment Bank (EIB or ‘the Bank’) to take no action on her complaint alleging psychological harassment and to order the Bank to make reparation for the material and non-material damage which she claims to have suffered owing to the illegality of the decision of 27 July 2011, the harassment allegedly suffered and the maladministration attributable to the Bank.
Legal context
2. In accordance with Article 308 TFEU, the Statute of the Bank is laid down in a protocol annexed to that Treaty and to the EU Treaty, of which it forms an integral part.
3. Article 7(3)(h) of Protocol No 5 on the Statute of the Bank provides that the Board of Governors is to approve the Rules of Procedure of the Bank. The Rules of Procedure were approved on 4 December 1958 and have since undergone a number of amendments. They provide that the Staff Regulations of the Bank are to be fixed by the Board of Directors.
4. On 20 April 1960 the Board of Directors adopted the Staff Regulations of the Bank. In the version applicable to the dispute, Article 14 of the Staff Regulations of the Bank states that the staff of the Bank is to consist of three categories, according to the Function occupied: the first category consists of management staff and combines two functions, the ‘[s]enior management cadre’ function and ‘[f]unction C’; the second category consists of executive staff and combines three functions, ‘[f]unction D’, ‘[f]unction E’ and ‘[f]unction F’; and the third category consists of secretarial, clerical and support staff and is made up of four functions.
5. Article 41 of the Staff Regulations of the Bank provides:
‘Disputes of any nature between the Bank and individual members of staff shall be brought before the Court of Justice [of the European Union].
…’
6. The Staff Code of Conduct of the Bank, as approved by the Board of Directors of the Bank on 1 August 2006 (‘the Code of Conduct’), provides in Article 3.6, entitled ‘Dignity at work’:
‘Harassment and bulling of any kind, are unacceptable. Victims of any harassment or bullying may, in accordance with the Bank’s Policy on Dignity at Work, bring the matter to the attention of the Director of [the Human Resources Department], without this being held against them. The Bank is obliged to show those in question concern and offer its support.
3.6.1 Psychological harassment
This takes the form of repeatedly hostile or tasteless remarks, acts or behaviour over a fairly long period by one or more members of staff towards another member of staff. A disagreeable remark or a quarrel in the course of which unpleasant words are voiced in the heat of the moment cannot be said to constitute psychological harassment. On the other hand, when repeated consistently for weeks or months on end, incessant outbursts of temper, victimisation, disagreeable remarks or hurtful innuendoes are clear signs of harassment in the workplace.
…’
7. In 2003 the Bank adopted the Policy on Dignity at Work referred to in Article 3.6 of the Code of Conduct (‘the Policy’). Article 2.1 of the Policy, entitled ‘Bullying and harassment — What is it?’, provides:
‘The [Code of Conduct], at point 3.6, provides that harassment is not acceptable and contains several definitions of harassment. There is no single definition of harassment, since harassment and bullying may take many forms. The behaviour may be physical or verbal and will often occur over a period of time although serious one-off incidents may take place. It is irrelevant whether the behaviour is intentional or not. The key feature is that harassment and bulling is unwelcome and unacceptable behaviour that demeans the self-respect and confidence of the recipient.
…’
8. The Policy establishes two internal procedures to deal with cases of bullying and harassment, namely (i) an informal procedure, whereby the member of staff concerned seeks an amicable solution of the problem, and (ii) a formal investigation procedure, whereby he officially lodges a complaint which is dealt with by an Investigation Panel composed of three persons. This investigation panel is to conduct an objective and independent investigation and to issue an opinion together with a reasoned recommendation for the President of the Bank, who finally decides on the measures to be taken.
9. As regards the investigation procedure, the Policy provides:
‘The staff member brings the matter, either orally or in writing, to the attention of the [Director of the Human Resources Department]. If [the latter] judges [that] there is not a clear immediate disciplinary case, and that the circumstances of the case may qualify as harassment, the staff member may initiate the Investigation Procedure as follows:
1. Staff member writes to [the Director of the Human Resources Department] formally requesting the initiation of the Investigation Procedure, stating the complaint and name of alleged harasser(s).
2. [The Director of the Human Resources Department], in agreement with the Staff Representatives, proposes to the President [of the Bank] the composition of the Panel and fixes a date for investigation to begin no later than 30 calendar days after receipt of complaint.
3. The [Director of the Human Resources Department] immediately acknowledges receipt of the staff member’s note, [thus] confirming [to the staff member concerned] that the Investigation Procedure will begin. In addition, the [Director of the Human Resources Department]:
a. requests the person to set out their complaint in a memo …,
…
c. indicates that upon receipt of the above memo the alleged harasser will be informed of the subject of complaint and necessary information but will not receive a copy of the memo,
…
e. informs the complainant that the alleged harasser will be reminded that there must be no victimisation of the person at any stage, and that the complaint must be kept strictly confidential by both parties (note to be returned to [the Director of the Human Resources Department], with acknowledgement of receipt, and dated),
…
4. Where the memo from the complainant is received, the [Director of the Human Resources Department]:
a. sends promptly a note to [the] alleged harasser, setting out the subject of the complaint and necessary information and asks for a written response plus, if he/she wishes, any supporting documents/evidence, within 10 days, addressed confidentially to the [Director of the Human Resources Department],
…
c. reminds [the] alleged harasser that there must be no victimisation of the person at any stage, and that the complaint must be kept strictly confidential by both parties (note to be returned to [the Director of the Human Resources Department], with acknowledgement of receipt and dated).
…’
10. As regards the hearing, the Policy reads as follows:
‘The objective of the hearing is to establish what happened and to gather facts, leading to a reasoned recommendation. …
… The Panel has the flexibility to proceed in the way [it] consider[s] appropriate. Normally the hearing will take the form of a sequence of separate interviews, in the following order:
– first the complainant;
– any witnesses on behalf of the complainant;
– the alleged harasser;
– any witnesses on behalf of the alleged harasser;
…’
11. As regards the outcome of the investigation, the Policy provides:
‘Once all parties have been heard, and any other appropriate investigations have been made, the Panel should be in a position to deliberate and to set out a reasoned recommendation. The Panel does not have decision-making powers.
Recommendations might be that:
…
– the disciplinary procedure [against the alleged harasser] should be initiated.
…’
12. As regards the final decision taken by the President of the Bank, the Policy provides:
‘The President [of the Bank]’s decision should indicate any action to be taken, and the timing, for example:
– disciplinary procedure initiated [against the alleged harasser];
…’
13. In accordance with Annex 1 to the Policy, the Policy is to be read in conjunction with the Code of Conduct and the Staff Regulations of the Bank.
Facts giving rise to the dispute
14. The applicant was engaged by the Bank on 16 July 1998 in function E in the executive staff category.
15. On 1 April 2001 the applicant was promoted to function D, step 1 in the executive staff category.
16. From 1 July 2001 until 1 January 2008 the applicant was under the supervision of Mr Y, first in the context of a project and then within the Risk Management Directorate General (DG) (‘the “Risk Management” DG’), when she held the post of Head of Unit of the ‘Risks of Change’ Unit of the Financial Risk Department, of which Mr Y was Director. In the context of those functions, the applicant also worked closely with Mr X, Director of the Credit Risk Department of the ‘Risk Management’ DG.
17. On 1 January 2008 the applicant was appointed Head of the ‘Coordination’ Division within the ‘Risk Management’ DG and was promoted to function C in the category of management staff. At that time, the Director General of the ‘Risk Management’ DG was the immediate superior of Mr X and Mr Y, Director of the Credit Risk Department and Director of the Financial Risk Department, respectively, and also of the applicant. At the time of bringing the action, the applicant was still in that post.
18. From 23 January until 8 March 2008 the applicant was on sick leave and from 9 March until 28 July 2008 she was on maternity leave; then, until 12 September 2008, she was on annual leave.
19. In the applicant’s annual appraisal for 2008, the assessor considered that her performance had met all expectations and the applicant was awarded a bonus.
20. In the applicant’s appraisal for the first six months of 2009, the assessor concluded that the applicant’s performance had been very good. The applicant was awarded a salary increase of three mini-steps and bonuses.
21. On 1 May 2010 the Director General of the ‘Risk Management’ DG was appointed to another post within the Bank. Mr X was appointed acting Director General of the ‘Risk Management’ DG for the remainder of 2010 and until 30 March 2011. During that period, his former post as Director of the Credit Risk Department was temporarily occupied by Mr Z.
22. The applicant, Mr X and Mr Y all applied for the post of Director General of the ‘Risk Management’ DG and the applicant also applied for the post of Director of the Credit Risk Department. Mr X’s and Mr Y’s applications were unsuccessful, as were the applicant’s.
23. From 4 May 2010 the applicant was on long-term sick leave. Owing to her absence, certain of her responsibilities as Head of the Coordination Division were re-allocated, in particular to Mr X, Mr Y and Mr Z.
24. On 28 June 2010, at the applicant’s request, her doctor certified that her health required that she rested lying flat, but that she was able to work at home provided that she remained lying flat or in a semi-reclining position and, at the date of the medical certificate, that situation applied for an indefinite period. On the basis of that certificate, the applicant asked to be allowed to work at home, under the teleworking arrangements. The Bank agreed to that request to telework, but stated that the applicant’s status would continue to be that of a person on sick leave.
25. At the beginning of September 2010 the applicant requested authorisation from the Bank’s doctor to work one half day per week at the Bank and to continue to work under the teleworking arrangements. Her request was accepted.
26. On 15 December 2010 a new Director General of the ‘Risk Management’ DG was appointed; he took up his post on 1 April 2011.
27. For the period from 8 February until 3 April 2011 the applicant was authorised to work half-time on medical grounds.
28. On 18 February 2011, the applicant, in accordance with the Policy, requested the initiation of an investigation procedure in relation to Mr X and Mr Y, having first had recourse to the informal procedure. In her request, the applicant claimed that, since June 2010 in Mr X’s case and September 2008 in Mr Y’s case, those individuals had bullied and harassed her, by, principally, first, misinforming her and withholding information with the aim of reducing the effectiveness of her work; second, ‘sidelining’ her by diluting and/or diminishing her role and her responsibilities; third, denigrating her in public and also humiliating her in public and/or in private; and, fourth, isolating her from the circle of her colleagues by excluding her from exchanges of work-related information.
29. By letter of 22 February 2011, the Bank responded to the applicant’s letter of 18 February 2011.
30. By letter from the Director of the Human Resources Department of 28 February 2011, the applicant was informed that the investigation procedure had been initiated and was requested to set out her complaint in a memorandum. In that letter it was stated that, following receipt of the memorandum, the alleged harassers would be informed of the subject-matter of the complaint, that they would receive a copy of the memorandum in order to ensure the protection of the rights of the defence and that, in return and on the basis of the same principle, the applicant would receive a copy of the replies of the two alleged harassers. The letter also stated that the alleged harassers would be reminded that the applicant must not at any time be singled out for adverse treatment and that the complaint should be treated as strictly confidential by both sides.
31. By memorandum of 14 March 2011, the applicant described the two alleged harassers’ harassing and bullying behaviour towards her. Documents attesting to the reality of her complaint were annexed to that memorandum. A number of those annexes contained information relating to the applicant’s health, including medical certificates, in particular certificates of unfitness for work, and exchanges of e-mails.
32. By letter of 16 March 2011 the Director of the Human Resources Department acknowledged receipt of the memorandum of 14 March 2011 and informed the applicant that the memorandum had been forwarded to Mr X and Mr Y on the same date. It is common ground that the supporting documents enclosed with the memorandum of 14 March 2011 were also communicated.
33. By memoranda of 28 March 2011, Mr X and Mr Y lodged their respective responses to the applicant’s memorandum. The applicant was given a copy of those memoranda.
34. Between 4 April and 8 July 2011 the applicant was absent on sick leave. She then returned to work under a therapeutic half-time arrangement and resumed her post on a full-time basis on 1 September 2011.
35. By letter of 6 April 2011 to the Director of the Human Resources Department, the applicant objected to the fact that her memorandum of 14 March 2011 and the annexes thereto had been communicated in full to the alleged harassers, when those annexes contained much confidential personal information, relating, in particular, to her health.
36. By letter of 11 April 2011 the Director of the Human Resources Department replied to the applicant, claiming in particular that the provisions of the Policy relating to the investigation procedure were being revised as regards the communication of documents between the parties in order to protect the rights of the defence and to ensure that they complied with the new guidelines of the European Data Protector Supervisor (EDPS).
37. By e-mails of 28 April 2011, the Human Resources Department drew the attention of each of the alleged harassers to the fact that the documents sent on 16 March 2011 included medical documents which the applicant had submitted in the context of the investigation procedure and asked that they treat those medical data with the strictest confidence.
38. On 2 May 2011 the Investigation Panel appointed by the President of the Bank interviewed the applicant and also Mr X and Mr Y.
39. The witnesses whom the applicant had asked to be called to give evidence before the Investigation Panel refused to appear before the Panel, apart from one person. After hearing the witnesses nominated by Mr X and also the persons whom it had wished of its own initiative to question, the Investigation Panel decided not to insist on hearing evidence from the witnesses nominated by the applicant.
40. On 11 July 2011 the Investigation Panel issued its opinion (‘the Investigation Panel’s opinion’). In the case of Mr X, the Investigation Panel concluded that it had been unable to ‘find an abusive and intentional attitude that might be classified as harassment on [his] part’ and, in Mr Y’s case, after finding that certain behaviour of which the applicant complained had been proved, the Investigation Panel left open the question whether that behaviour constituted psychological harassment. In its opinion, the Investigation Panel made a number of recommendations for the attention of the Bank.
41. By letter of 27 July 2011, the President of the Bank informed the applicant that, in the light of the Investigation Panel’s report, he had decided to take no administrative action on her complaint (‘the decision of 27 July 2011’). In that letter, the President of the Bank stated that the Director of the Human Resources Department was at the applicant’s disposal in order to discuss her possible transfer to the Financial Controller of the Bank.
42. In August 2011, on an unspecified date, the applicant lodged a complaint with the EDPS concerning the treatment of her personal data by the Bank’s services in the context of the investigation procedure. The EDPS launched an investigation, but suspended it on 2 February 2012 pending a definitive decision of the Courts of the European Union in the present case.
43. By letter of 25 August 2011 the applicant sent the Bank a request for compensation for the damage caused by the illegality of the decision of 27 July 2011 and by improper behaviour towards her since September 2008 that constituted maladministration.
44. By letter of 1 September 2011 the President of the Bank rejected the request for compensation (‘the decision of 1 September 2011’).
45. By letter of 21 December 2011, the President of the Bank asked the former Director General of the Risk Management DG to examine the possibility of transferring the applicant to another directorate.
46. By letter of 2 February 2012 to the EDPS, the Bank answered a number of questions put to it by the EDPS.
Forms of order sought and procedure
47. In the application, the applicant claims that the Tribunal should:
– annul the final conclusion of the Investigation Panel’s opinion in that it finds that there are no facts that might be classified as harassment in respect of the applicant;
– annul the decision of 27 July 2011;
– declare that she was and is the victim of harassment;
– order the Bank to put an end to that harassment;
– annul the decision of 1 September 2011;
– declare that there has been maladministration on the part of the Bank;
– find the Bank liable in respect of the illegality of the decision of 27 July 2011, the harassment of which the applicant was a victim and also the maladministration on the part of the Bank;
– order the Bank to pay compensation for past and future physical, non-material and material damage caused to the applicant as a result of the illegality of the decision of 27 July 2011, the psychological harassment she suffered and maladministration on the part of the Bank, together with default interest:
– as regards the illegality of the decision of 27 July 2011:
– in respect of the material damage in the form of loss of earnings: EUR 113 100;
– in respect of the non-material damage: EUR 50 000;
– as regards the psychological harassment which she suffered:
– in respect of the material damage in the form of loss of earnings and loss of career: EUR 132 100;
– in respect of the non-material damage: EUR 50 000;
– in respect of the costs incurred: EUR 13 361.93;
– as regards the maladministration on the part of the Bank:
– in respect of the Bank’s breach of its obligation of confidentiality and data protection: EUR 10 000;
– in respect of the incident regarding the hearing of witnesses: EUR 40 000;
– by way of measure of inquiry, order and carry out the examination of witnesses as specified in the evidence offered in support annexed to the application;
– by way of measure of inquiry, order an expert report in order to establish the extent of the material and non-material damage sustained by the applicant as a result of the illegality of the decision of 27 July 2011, the psychological harassment to which she was subjected and the maladministration on the part of the Bank, the subject-matter of which is set out more fully in the evidence offered in support annexed to the application;
– order the Bank to pay the costs of the proceedings.
48. In its defence, the Bank contends that the Tribunal should:
– dismiss the action as inadmissible and/or unfounded;
– order the applicant to pay the costs.
49. By letter received at the Registry of the Tribunal on 31 January 2012, the EDPS applied to intervene in support of the form of order sought by the applicant.
50. By order of the President of the Second Chamber of the Tribunal of 24 April 2012, the EDPS was granted leave to intervene. The EDPS’s statement in intervention was received at the Registry of the Tribunal on 1 June 2012. The EDPS makes clear in that statement that he is intervening only in support of the applicant’s claims that require an analysis of the data protection rules laid down in Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1). By pleadings lodged on 22 June 2012 and 2 July 2012 respectively, the applicant and the Bank lodged their observations on the EDPS’s intervention. The Bank claimed that the EDPS’s submissions should be rejected and that the EDPS should be ordered to pay the costs arising from his intervention.
51. By letter to the Tribunal of 30 March 2012, the applicant complained that one of the Agents representing the Bank in the present case had contacted by telephone one of the persons whom the applicant had proposed as witnesses in the evidence offered in support annexed to her application, in order to ascertain whether she intended to testify for the applicant before the Tribunal. Following that contact, the person concerned told one of the applicant’s colleagues that she did not wish to testify as she was afraid of reprisals.
52. By letter of 4 May 2012, the Bank lodged its observations on the applicant’s letter of 30 March 2012.
53. By letters from the Registry of 17 January 2014, the parties were requested to respond to a number of measures of organisation of procedure. They duly complied with that request. In her response, the applicant re-evaluated the material loss which she claims to have suffered and which she now puts at EUR 218 000.
54. At the hearing, the applicant withdrew the first and fourth heads of claim. She also asked the Tribunal to deal with the seventh and eighth heads of claim together.
Admissibility
I – Third head of claim, seeking a declaration of harassment
55. The applicant asks the Tribunal to declare that she has been and continues to be the victim of psychological harassment.
56. However, it is established case-law that it is not for the Courts of the European Union to make findings of principle (judgments in De Nicola
v EIB, T‑120/01 and T‑300/01, EU:T:2004:367, paragraph 136, and De Nicola
v EIB, T‑264/11 P, EU:T:2013:461, paragraph 63).
57. It follows that the claim seeking a finding of harassment is inadmissible and must be rejected. Since the applicant has asked the Tribunal to adopt measures of inquiry with a view to the hearing of witnesses, with the aim of enabling it to make a finding of harassment, there is no need to adopt such measures or to take a position on the procedural incident of which the applicant complains in her letter of 30 March 2012.
II – Fifth head of claim, seeking annulment of the decision of 1 September 2011
58. By the decision of 1 September 2011, the President of the Bank rejected the request for compensation which the applicant had sent to him on 25 August 2011 in order to obtain reparation for the damage which she claimed to have suffered owing to the illegality of the decision of 27 July 2011 and the Bank’s improper behaviour towards her since September 2008, which constituted maladministration.
59. However, the Tribunal finds that, in the present action, the applicant makes claims seeking reparation for the same damage.
60. In those circumstances, there is no need to adjudicate independently on the claim for annulment of the decision of 1 September 2011 (see judgment in Verheyden
v Commission, F‑72/06, EU:F:2009:40, paragraph 30).
III – Sixth head of claim, seeking a declaration of maladministration on the part of the Bank
61. The applicant requests the Tribunal to declare that the Bank is guilty of maladministration with respect to her in a number of ways.
62. The Tribunal observes, however, that in the context of her claims for compensation, the applicant asks, in particular, the Tribunal to order the Bank to make reparation to her for the damage occasioned by that maladministration. Consequently, the claim seeking a declaration of maladministration constitutes an autonomous claim which seeks in reality to have the Tribunal recognise that certain arguments put forward in support of her claim for compensation are well founded. It is settled case-law that such claims must be rejected as inadmissible, since it is not the Tribunal’s place to make statements of law in the abstract (judgment in A
v Commission, F‑12/09, EU:F:2011:136, paragraph 83; order in Marcuccio
v Commission, F‑87/07, EU:F:2008:135, paragraph 36).
63. Consequently, the claim for a declaration of maladministration on the part of the Bank must be rejected as inadmissible.
The claims for annulment and the claims for compensation
I – The claim for annulment of the decision of 27 July 2011
A – Arguments of the parties
64. The applicant claims that the decision of 27 July 2011 is vitiated by a manifest error of assessment and should be annulled. In that regard, she asserts that the Investigation Panel's opinion contains alarming findings that required the President of the Bank to take measures, in particular to bring the harassment to an end, instead of deciding to take no action on her complaint. Thus, the Investigation Panel's opinion highlighted the existence of acts of denigration and public humiliation vis-à-vis the applicant, and also the fact that she had been isolated and excluded from the circle of her colleagues. In addition, according to that opinion, Mr Y deliberately excluded her from her post. Furthermore, the Investigation Panel's opinion contains a recommendation that the applicant should be re-assigned in her interest and reinstated in a post as head of division that would offer her genuine prospects of promotion. Consequently, the applicant maintains that the President of the Bank made a manifest error of assessment when, on the basis of the Investigation Panel's opinion, he adopted the decision of 27 July 2011 and when, in doing so, he refused to take administrative action on her complaint, to adopt the necessary measures to put an end to the harassment of which she was the victim and to reinstate her in her duties or re-assign her to an equivalent post.
65. The Bank contends that the decision of 27 July 2011 is not inconsistent with the Investigation Panel’s opinion, since both find that there were no acts of psychological harassment against the applicant. Furthermore, following in that regard the recommendations of the Investigation Panel, the President of the Bank asked the applicant, in the decision of 27 July 2011, to consider a transfer to another directorate of the Bank.
B – Findings of the Tribunal
66. The question for the Tribunal is whether the President of the Bank made a manifest error of assessment when, in the light of the opinion of the Investigation Panel, he adopted the decision of 27 July 2011. Without prejudice to the practical effect that the discretion of the President of the Bank must be acknowledged to have, the Tribunal has already held that an error is manifest where it is easily recognisable and can be readily detected, in the light of the criteria to which the exercise of the discretion in question is subject (judgment in Canga Fano
v Council, F‑104/09, EU:F:2011:29, paragraph 35, upheld on appeal in the judgment in Cango Fano
v Council, T‑281/11 P, EU:T:2013:252, paragraph 127).
67. The Tribunal observes that in the Investigation Panel’s opinion it is stated that that panel is required to ‘ascertain whether [the applicant] was the subject of harassment and bullying on the part of [Mr X and Mr Y], it being understood that the [Investigation Panel] understands psychological harassment as being any improper conduct that takes place over a period, is repetitive or systematic and involves behaviour, spoken or written language, gestures that are intentional and that may undermine the personality, dignity or physical or psychological integrity of the person’. The Investigation Panel continued by stating that ‘[t]he key element when determining whether or not there is psychological harassment is an improper and intentional attitude on the part of the persons identified by the complainant’ and that it ‘therefore endeavoured to analyse [the applicant’s] accusations against those criteria’.
68. In that regard, the Tribunal notes that Article 3.6.1 of the Code of Conduct defines psychological harassment as ‘repeatedly hostile or tasteless remarks, acts of behaviour over a fairly long period by one or more members of staff towards another member of staff’. That provision of the Code of Conduct must be read alongside the provision of the Policy, in fact Article 2.1, that deals with the definition of harassment and according to which the fact that ‘[i]t is irrelevant whether the behaviour is intentional or not. The key feature is that harassment and bullying is unwelcome and unacceptable behaviour that demeans the self-respect and confidence of the recipient’.
69. A twofold inference may therefore be drawn from the wording of Article 2.1 of the Policy, read with Article 3.6.1 of the Code of Conduct. First, the words, attitudes or acts referred to in Article 3.6.1 of the Code of Conduct must have the effect of undermining the self-esteem and self-confidence of the victim; and, second, in so far as there is no requirement that the behaviour in question be intentional, there is no need to establish that those words, attitudes or acts were said or done with the intention of undermining the dignity of a person. In other words, there may be psychological harassment without there being any need to show that the harasser intended, by his words, his attitudes or his acts, to cause deliberate harm to the victim. There will therefore be psychological harassment, within the meaning of Article 2.1 of the Policy, read with Article 3.6.1 of the Code of Conduct, when the words, attitudes or acts, provided that they were said or done, objectively entailed an attack on the self-esteem and self-confidence of a person.
70. When questioned at the hearing about the definition of psychological harassment, the Bank confirmed that, in order to be regarded as constituting psychological harassment within the meaning of Article 2.1 of the Policy, read with Article 3.6.1 of the Code of Conduct, behaviour must be ‘abusive and intentional’, as stated by the Investigation Panel in its opinion.
71. That assertion cannot be considered well founded, however, since, as is clear from paragraph 69 of the present judgment, and in accordance with Article 2.1 of the Policy, there is no requirement that the behaviour at issue was intentional.
72. The Bank also maintained at the hearing that a distinction must be drawn between the ‘objective’ intention and ‘subjective’ intention of the alleged harasser and that, in providing that it is irrelevant whether the behaviour in question is or is not intentional, the Policy seeks to indicate that only objective intention on the alleged harasser’s part is required, there being no need for subjective intention on his part. That argument cannot succeed, since the wording of Article 2.1 of the Policy does not allow such a distinction to be drawn.
73. In the light of the foregoing considerations, it must be concluded that the concept of psychological harassment employed in the Investigation Panel's opinion and set out at paragraph 67 of this judgment is more limited than that established in Article 2.1 of the Policy, read with Article 3.6.1 of the Code of Conduct, and that it is therefore not consistent with the rules applicable to the Bank’s staff.
74. In the interest of completeness, the Tribunal will consider whether, in spite of the fact that it relied on an incorrect concept of psychological harassment, the Investigation Panel none the less sought to ascertain whether Mr X and Mr Y did in fact engage in the behaviour of which the applicant complained and, if so, it will then evaluate whether that behaviour objectively undermined the mental state of the applicant herself, in which case the behaviour would constitute harassment.
75. In that regard, the Tribunal observes that a number of passages in its opinion show that the Investigation Panel merely ascertained whether the alleged harassers had adopted an ‘abusive and intentional’ attitude towards the applicant.
76. Thus, the Investigation Panel asserts that Mr Y ‘is … seen as an ambitious man who has visions of his professional future and is described by some as a steamroller who proceeds without being too concerned about the collateral damage which he may cause’ and does not think that ‘[the applicant] was specifically targeted by [Mr Y], when [Mr Y] would in all likelihood have taken the same approach if anyone else had been in the same situation as [the applicant] at the same time: she was there, she thwarted his ambitions and her absence … on sick leave prevented in part the proper implementation of [the] job, she was to be excluded’.
77. Next, in its findings, and concerning the applicant’s complaint alleging that she was misinformed and that information was withheld from her, the Investigation Panel asserts that it ‘notes certain deficiencies in the provision of information to [the applicant]’, but that ‘there was … a lack of consideration and a certain negligence rather than [the] abusive intention of excluding [the applicant] from the flow of information’.
78. Furthermore, as regards the applicant’s complaint that the alleged harassers ‘sidelined’ her by diluting or reducing her role and her responsibilities, the Investigation Panel, after establishing that the complaint was true, asserted that it ‘does not think that [Mr X] intentionally and abusively contributed to that dismantling of [the applicant’s] situation’ and that it considers, on the other hand, that Mr Y ‘consciously filled in the gaps left by [the applicant] during her absence and that he accepted as “collateral damage” that she should be excluded from her duties so that he would ultimately be in a better position’.
79. Likewise, where the Investigation Panel refers to the applicant’s complaint of public denigration, it asserts that the ‘humiliating and degrading situation in which [the applicant] may have found herself is the result of the situation in general rather than of any intention to that effect on the part of [Mr X] or [Mr Y]’.
80. In addition, as regards the applicant’s accusation that she was excluded from the circle of her colleagues, the Investigation Panel asserts that that exclusion, ‘which seems real to [the applicant] … is not the consequence of a specific intentional and abusive act aimed at excluding [her]’.
81. Last, a passage relating to Mr X supports the fact that the Investigation Panel found that there was no harassment because, in its view, it had not been proved that Mr X had deliberately sought to harm the applicant. After examining Mr X’s conduct towards the applicant, the Investigation Panel concluded that ‘[c]onsequently, the [Investigation Panel] has been unable to establish any intentional and abusive attitude on the part of [Mr X] that might be characterised as harassment’.
82. However, even though, owing to the incorrect definition of psychological harassment which it applied, the Investigation Panel limited its investigations as set out at paragraphs 75 and 81 of the present judgment, the Tribunal observes that the Investigation Panel found that Mr X and Mr Y did in fact engage in some of the behaviour of which the applicant accuses them. Thus, the Investigation Panel asserts that Mr X ‘did … not take what would probably have been the appropriate steps to impress on Mr Y the fact that the functions which he assumed on an interim basis must continue to be on an interim basis’.
83. As regards Mr Y, the Investigation Panel finds that he ‘gradually excluded [the applicant] from her post by appropriating all the strategic aspects of the Coordination Division. At present it is thus common ground … that the organisational chart of the [“Risk Management” DG] is such that [Mr Y] holds all the strategic key functions, giving him a high profile vis-à-vis the hierarchy of the Bank, and that [the applicant] is confined to administrative functions. What [the applicant] predicted has therefore happened’. The Investigation Panel adds that, in its opinion, ‘Mr Y took advantage of the general situation of the [“Risk Management” DG] at the time to establish himself and make progress in his professional career and [that] he thus accepted that [the applicant’s] position should be correspondingly eroded’.
84. Next, the Investigation Panel states that it ‘notes certain deficiencies in the information provided to [the applicant], that [the applicant’s] role and responsibilities were in fact deprived of the greater part of her key and strategic elements, thus allowing [Mr Y] to bring himself to the notice of the hierarchy of the Bank and therefore to prepare the ground for a subsequent professional career’, and that the applicant’s exclusion from the circle of her colleagues ‘seems real to her’.
85. In addition, the Investigation Panel ‘is convinced that [the applicant] displays all the symptoms normally found in a person who has been the victim of psychological harassment: depression, unhappiness, a feeling of anguish, a feeling of low self-esteem, a felling of solitude and isolation, uncertainty about the meaning of life and her future career, obstacles placed in the way of relationships developed at her place of work’ and it found that the applicant, ‘a person with severe mental suffering, displayed all the symptoms of psychological harassment’.
86. The Tribunal must find that, after concluding, on the one hand, that certain behaviour of which the applicant accused the alleged harassers had taken place and, on the other, that the applicant displayed symptoms of psychological harassment, the Investigation Panel did not seek to determine whether the behaviour referred to above was the origin of the symptoms of psychological harassment, in particular the deprivation of self-esteem and self-confidence, displayed by the applicant. In Mr X’s case, the Investigation Panel concluded that it had been unable to ‘establish an abusive and intentional attitude that could be classified as harassment on [his] part’ and, in Mr Y’s case, after finding that certain behaviour of which the applicant complained had been proved, the Investigation Panel did not rule on whether that behaviour constituted psychological harassment.
87. In the light of the foregoing considerations, it must be held that the Investigation Panel’s opinion was adopted following an investigation in which the alleged harassers’ behaviour was not examined by reference to the definition of psychological harassment set out in Article 2.1 of the Policy, in conjunction with Article 3.6.1 of the Code of Conduct, and, moreover, is inconsistent in that it establishes the existence, on the part of the alleged harassers, of certain behaviour of which the applicant complained and the existence, on the applicant’s part, of symptoms of psychological harassment, without ascertaining whether the latter had been caused by the former.
88. Consequently, the Investigation Panel’s opinion is vitiated by irregularities.
89. The President of the Bank therefore made a manifest error of assessment when, in the light of that opinion, he adopted the decision of 27 July 2011. As the President of the Bank committed an unlawful act, the decision of 27 July 2011 must be annulled.
90. Consequently, the claim for annulment of the decision of 27 July 2011 must be upheld.
II – The claims seeking compensation for the applicant
91. The applicant divides her claim for compensation into three parts. By the first part, she seeks reparation for the damage alleged to have been suffered as a result of the illegality of the decision of 27 July 2011. By the second part, she seeks reparation for the damage alleged to have been suffered and caused by the psychological harassment and the Bank’s breach of its duty to have regard for the welfare of its staff. In the third part, the applicant seeks reparation for the damage alleged to have been suffered as a result of maladministration.
A – Compensation for the da mage resulting from the illegality of the decision of 27 July 2011
1. Arguments of the parties
92. The applicant claims that the decision of 27 July 2011 caused her material damage, which is evaluated at EUR 218 800. Since the President of the Bank refused to take measures in regard to her, by reinstating her in her duties or re-assigning her to an equivalent post offering genuine career prospects, she is in a post without responsibilities and with non-existent career prospects. The decision of 27 July 2011 therefore had, and will continue to have in the future, an impact on her remuneration, and in particular on her bonuses, which are determined according to the aims and responsibilities of the staff member concerned. The applicant asserts that the decision of 27 July 2011 also placed her in a state of uncertainty and anxiety which caused her significant non-material damage, which cannot be made good by the annulment of that decision and which she evaluates on an equitable basis at EUR 50 000.
93. The Bank contends that this claim for compensation is unfounded, as no illegal conduct can be established on its part.
2. Findings of the Tribunal
94. According to settled case-law, the administration can be held non-contractually liable only if three cumulative conditions are satisfied, namely the illegality of an administrative act or of the conduct of the institutions, actual harm and the existence of a causal link between the act and the damage alleged to have been suffered (judgment in Skoulidi
v Commission, F‑4/07, EU:F:2008:22, paragraph 43, and order in Marcuccio
v Commission, F‑69/10, EU:F:2011:128, paragraph 22). It follows that the fact that one of those conditions has not been satisfied is a sufficient basis on which to dismiss an action for damages (judgment in Lucaccioni
v Commission, C‑257/98 P, EU:C:1999:402, paragraphs 11 and 14 and the case-law cited).
95. In the present case, it must be observed that the material and non-material damage on which the applicant relies originates in the decision of 27 July 2011, which the Tribunal has found to be unlawful at paragraph 89 of this judgment.
96. As the illegality of a decision of the Bank has thus been established, the Tribunal must consider whether that illegal decision had harmful consequences for the applicant.
97. As regards, in the first place, the applicant’s request that the Bank be ordered to make reparation for the material damage which the decision of 27 July 2011 caused to her, in so far as the Bank, in taking no administrative action on her complaint, refused to adopt measures in her favour, which had the consequence that she found herself in a post with no responsibilities, it should be borne in mind that the annulment of a measure by the Courts has the effect of retroactively eliminating that measure from the legal order and that, where the measure annulled has already been carried out, the cancellation of its effects requires that the applicant be restored to the legal position she was in before that measure was adopted (judgment in Kalmár
v Europol, F‑83/09, EU:F:2011:66, paragraph 88). Furthermore, in accordance with Article 266 TFEU, the institution whose act has been declared void must ‘take the necessary measures to comply with the judgment of the Court of Justice …’.
98. In the context of the measures to be adopted by the Bank in order to comply with this judgment, as the Tribunal cannot prejudge the findings of any new investigation procedure, it cannot, at this stage, order the Bank to compensate the applicant for the material damage which she has suffered, including from 27 July 2011. It follows that the applicant’s claims to that effect cannot be granted, as they are in any event premature.
99. As regards, in the second place, the non-material damage which the applicant claims to have suffered, it should be borne in mind that, according to settled case-law, the annulment of an unlawful act may constitute, in itself, appropriate and, in principle, sufficient compensation for any non-material harm which that measure may have caused, unless the applicant shows that he has sustained non-material harm that can be separated from the illegality on which the annulment is based and cannot be compensated in full by that annulment (judgment in CH
v Parliament, F‑129/12, EU:F:2013:203, paragraph 64). The Tribunal also recalls that it is common ground that the feeling of injustice and distress caused by the fact that an individual is required to undergo judicial proceedings in order to secure recognition of his rights constitutes harm which may be inferred from the mere fact that the administration acted unlawfully. That harm must give rise to reparation where it is not compensated by the satisfaction resulting from the annulment of the act in question (see, to that effect, judgment in CC
v Parliament, F‑9/12, EU:F:2013:116, paragraph 128, under appeal before the General Court in Case T‑457/13 P).
100. It was held at paragraph 89 of the present judgment that the President of the Bank had committed an illegality that entailed annulment of the decision of 27 July 2011. In the present case, the Tribunal finds that the fact that the President of the Bank took no administrative action on the applicant’s complaint placed her in a state of uncertainty and distress constituting non-material harm that can be separated from the illegality on which the decision of 27 July 2011 was based and is not capable of being compensated in full solely by the annulment of that decision.
101. The Tribunal considers that, in so far as the Investigation Panel’s opinion related to a complaint of psychological harassment, the President of the Bank ought to have considered that opinion carefully in order to ensure that the investigation had been carried out correctly and to take the appropriate action in the event that any errors were found.
102. Taking into account the circumstances in which the decision of 27 July 2011 was adopted, the Tribunal decides that, on a fair assessment, in the particular circumstances of the case, of the non-material damage suffered by the applicant, the reparation for that head of claim should be set, on an equitable basis, at EUR 30 000.
B – Compensation for the alleged damage caused to the applicant by the psychological harassment and the Bank’s breach of its duty to have regard for the welfare of its staff
1. Arguments of the parties
103. The applicant maintains that the Bank has breached its duty to have regard for the welfare of its staff and its duty to provide assistance, since, notwithstanding that she reported the situation to her hierarchical superior, to the Human Resources Department and to the President of the Bank, nothing was done to put an end to the harassment and bullying of her by Mr X and Mr Y. The Bank thus allowed that behaviour to continue for many months. In particular, the Bank breached its duty to have regard for the welfare of its staff and its duty to provide assistance by not taking into account a medical specialist’s request that the applicant be transferred to another department.
104. That breach of the duty to have regard for the welfare of its staff and the duty to provide assistance, and also the harassment suffered, accelerated the deterioration of her mental and physical health, causing her non-material damage which she evaluates at EUR 50 000, and caused her material damage, evaluated at EUR 218 000, a sum corresponding to the loss of bonuses for the years 2010 to 2015 and to the loss of opportunity to advance in her career. In addition, the applicant claims that owing to the psychological harassment of which she considers herself to be a victim she was obliged to instruct a lawyer to represent her in the investigation procedure, at a cost of EUR 13 361.93.
105. The Bank contends that this claim for damages must be rejected.
2. Findings of the Tribunal
106. In the first place, the Tribunal must consider whether, as the applicant maintains, the Bank breached its duty to have regard for the welfare of its staff and its duty to provide assistance by refusing to support her when she reported that she was the victim of harassment.
107. In that regard, it should be borne in mind that, for the purpose of dealing with cases of harassment and bullying, the Policy provides for two procedures, one informal, whereby the member of staff concerned seeks an amicable solution, and the other formal, which allows him to lodge an official complaint in order to be subsequently dealt with by an Investigation Panel.
108. Although, by her complaint, the applicant takes issue with the Bank for not having taken the measures which she considered necessary to put an end to the harassment before she lodged the application to initiate an investigation procedure on 18 February 2011, it should be observed that that attitude on the Bank’s part comes within the framework of the informal procedure aimed at arriving at an amicable settlement between the applicant and the alleged harassers and that, in the absence of further information from the applicant, that attitude cannot therefore be characterised as a breach of the Bank’s duty to have regard for the welfare of its staff and its duty to provide assistance.
109. Likewise, the file shows that, by letter of 22 February 2011, the Bank responded to the applicant’s request of 18 February 2011 and that the applicant was informed, by the letter of 28 February 2011 from the Director of the Human Resources Department, that the investigation procedure would be initiated. Subsequently, the various stages of the investigation procedure were completed in very short periods. The applicant lodged her complaint by memorandum of 14 March 2011 and the alleged harassers responded by memoranda of 28 March 2011. The Investigation Panel heard the applicant and also Mr X and Mr Y on 2 May 2011 and delivered its opinion on 11 July 2011. In those circumstances, the applicant cannot validly maintain that the Bank breached its duty to have regard for the welfare of its staff and its duty to provide assistance during the investigation procedure.
110. As regards, more particularly, the applicant’s argument that the Bank did not follow up the recommendation of a medical specialist, Dr A, that she be transferred to another department, the Tribunal observes first of all that, according to the file, that recommendation was made on 10 March 2011. Next, the applicant asserts, in her response to the measures of organisation of procedure, that discussions about her possible transfer to the Financial Controller’s department had already been initiated in November 2010. Last, it is apparent from the decision of 27 July 2011 that on the date of that decision the matter was still being discussed. Accordingly, it must be held that discussions about the applicant’s possible transfer took place after 10 March 2011. Accordingly, the applicant cannot validly maintain that the Bank did not take the abovementioned request that she be transferred into account.
111. It should be added that if, by her argument, the applicant intends to maintain that the discussions held by the Bank with a view to transferring her to the Financial Controller’s department, or other discussions concerning a transfer to a different department, did not envisage a transfer to an equivalent post offering genuine career prospects, it must be held that that argument cannot be accepted, as the applicant has adduced no evidence that the Bank did not act in good faith.
112. In the light of the foregoing considerations, the request for compensation for breach of the duty to have regard for the welfare of the staff and the duty to provide assistance must be rejected.
113. In the second place, the Tribunal must consider whether, as the applicant claims, the psychological harassment which she allegedly suffered caused her material and non-material damage.
114. In that regard, it should be borne in mind that it is for the Investigation Panel to establish whether or not harassment took place and that, in the present case, as regards Mr X the Investigation Panel merely concluded that it had been unable to ‘find an abusive and intentional attitude capable of being characterised as harassment on [his] part’ and that, as regards Mr Y, the Investigation Panel left open the question whether the behaviour of which the applicant complained and which the Investigation Panel observed constituted psychological harassment.
115. Since the Tribunal cannot prejudge the findings of any new investigation or any new opinion, or the future decision of the President of the Bank, the request for compensation must be rejected on the ground that it is premature.
116. In the last place, it is appropriate to consider the applicant’s request for reimbursement of the legal fees and costs which, in her submission, she was obliged to incur in order to be represented during the administrative procedure.
117. In that regard, the Tribunal observes that the legal fees incurred during the contentious proceedings are recoverable costs under the conditions laid down in Article 86 et seq. of the Rules of Procedure of the Tribunal and that they must be dealt with in that context. As for the legal fees incurred during the investigation procedure for harassment, Article 91 of those Rules of Procedure refers only to the costs inherent in the proceedings before the Tribunal as recoverable costs, to the exclusion of those relating to the preceding phase. Accordingly, to recognise that the costs incurred during the investigation procedure preceding the contentious proceedings constituted damage that could be compensated in an action for damages would run counter to the non-recoverable nature of costs incurred during that phase. Consequently, the applicant cannot obtain, in her action for damages, reimbursement of the legal costs and expenses incurred during the investigation procedure.
118. In the light of the foregoing considerations, the applicant’s claim for reparation for the damage which she claims to have suffered owing to psychological harassment and the Bank’s breach of its duty to have regard for the welfare of its staff must be rejected.
C – Compensation for the damage alleged to have been suffered as a result of maladministration attributable to the Bank
119. In support of her claim for compensation, the applicant relies on two instances of maladministration by the Bank during the investigation procedure, the first consisting in a breach of its obligation of confidentiality and the rules relating to the protection of personal data provided for in the Policy and the second consisting in its interference with the hearing of witnesses.
1. The Bank’s breach of its obligation of confidentiality and the rules relating to the protection of personal data provided for in the Policy
a) Arguments of the parties
120. The applicant claims that the Bank breached its obligation of confidentiality and the rules relating to the protection of personal data provided for in the Policy, as approved by the EDPS in 2005. She submits that the Bank impeded the proper progress of the investigation, spread negative rumours about the applicant and undermined her reputation and her credibility, causing her non-material damage which she puts at EUR 10 000.
121. In support of her argument, the applicant puts forward two complaints.
122. In the context of her first complaint, the applicant takes issue with the Bank for having communicated to the new Director General of the ‘Risk Management’ DG, a person unconnected with the investigation procedure, the memorandum drafted by Mr X in response to the applicant’s memorandum of 14 March 2011. Likewise, she complains of the fact that ‘certain members of the administrative staff’ of the Coordination Division also had access to the file compiled during the investigation procedure. In her observations on the EDPS’s statement in intervention, the applicant produces an exchange of e-mails in support of her argument that one of the documents drawn up during the investigation procedure against Mr X and Mr Y was communicated to third parties to the procedure.
123. The Bank denies having given the new Director General of the ‘Risk Management’ DG or any other person unconnected with the investigation procedure access to the memorandum drawn up by Mr X in the context of the investigation procedure. It emphasises that it had informed the applicant and the alleged harassers that the documents exchanged during the investigation procedure must be treated in absolute confidence.
124. By her second complaint, the applicant maintains that during the investigation procedure the applicant communicated to the alleged harassers her memorandum of 14 March 2011 in its entirety, including the annexes thereto, although those documents ‘contained much personal information, relating in particular to [her] health’, and although the Policy provides that the alleged harasser is not to receive a copy of the memorandum containing the complaint.
125. The Bank maintains that the rule laid down in the Policy that the alleged harasser is not to receive a copy of the memorandum containing the complaint does not fully observe the rights of the defence, which must be protected in any procedure in which an act adversely affecting the person concerned may be adopted. Since the investigation procedure could have resulted in the dismissal of Mr X and Mr Y, the Bank, desirous of protecting the alleged harassers’ rights of defence, and after evaluating the need to transmit the file in its entirety or only in part, decided to communicate to them the applicant’s memorandum of 14 March 2011 in full, including the annexes thereto. In particular, since the applicant had accused Mr X and Mr Y of being the source of her health problems, it was necessary to send the medical certificate issued by the psychiatrist, Dr A, on 10 March 2011, in which it was stated that the applicant’s mental problems had begun under the direction of the former Director General of the ‘Risk Management’ DG, owing to the pressure created by him, and in which it was recommended that the applicant be transferred to another department.
126. The Bank further submits that the communication of the memorandum of 14 March 2011 in full, with the annexes, is not disproportionate, a fortiori
because, by the letter of 28 February 2011from the Director of the Human Resources department, the applicant’s attention had been expressly drawn to the fact that her memorandum would be communicated in full to the alleged harassers. Since the applicant had none the less decided to lodge her memorandum with all the annexes thereto, including medical certificates, without asking that those documents be treated confidentially, she implicitly consented to their being communicated to Mr X and Mr Y.
127. Although the EDPS requested leave to intervene in support of the claims for compensation for breach of the duty of confidentiality and of the rules on the protection of personal data, in his statement in intervention he comments only on the second complaint, based on the communication of the memorandum of 14 March 2011 in full to the alleged harassers. The EDPS submits, as does the applicant, that the Tribunal should find that that communication constitutes maladministration on the part of the Bank and that the Bank should be ordered to make reparation for the damage caused to the applicant by that maladministration.
128. In support of his submissions, the EDPS raises two pleas in law, alleging breach of the Policy and infringement of Regulation No 45/2001, respectively.
129. In her observations on the statement in intervention, the applicant also claims that the Bank is inconsistent in its interpretation of the obligation to observe the rights of the defence, since in another investigation procedure carried out in 2010 it refused to communicate the complaint and the documents annexed thereto to the person subject to the investigation procedure.
130. In its observations on the EDPS’s statement in intervention, the Bank claims that the second plea put forward by the EDPS, alleging infringement of Regulation No 45/2001, is inadmissible, since the applicant did not raise that plea in the application.
131. As regards the merits, the Bank emphasises, first of all, that it never stated that the communication in full of the memorandum of 14 March 2011, including the annexes thereto, was contrary to its internal procedure, but that it justified the communication of the entire memorandum by the fact that the rules of the internal procedure must comply with the general provisions on the protection of the rights of the defence.
132. Next, the Bank claims that, contrary to the EDPS’s contention, the communication of the memorandum of 14 March 2011 in its entirety, including the annexes, does not infringe Regulation No 45/2001. According to the judgment in X
v ECB, T‑333/99, EU:T:2001:251, the protection of the rights of the defence requires that the rights of the defence must be safeguarded in any proceedings in which a measure adversely affecting the person concerned may be adopted, and not merely in judicial proceedings. In the present case, the investigation procedure might have resulted in the dismissal of Mr X and Mr Y, that is to say, in a measure adversely affecting them, even before the initiation of judicial proceedings. As the Bank was required to respect the rights of the defence, it therefore communicated the memorandum as described above, in accordance with Article 5(b) of Regulation No 45/2001.
133. The Bank also disputes the EDPS’s assertion that it did not sufficiently consider the need to communicate the memorandum of 14 March 2011 in its entirety or only in part before sending it to the alleged harassers. In the Bank’s submission, that amounts to pure speculation on the EDPS’s part and the Bank did in fact consider the matter thoroughly.
134. In their responses to the measures of organisation of procedure, the applicant and the EDPS commented on the plea of inadmissibility raised by the Bank in its observations on the statement in intervention.
b) Findings of the Tribunal
135. The Tribunal will first of all consider whether, as the applicant asserts, the Bank did in fact commit the two instances of maladministration referred to above. If so, it will examine the causal link between any damage caused and the alleged maladministration. Last, it will determine the amount of compensation, if any, to be paid.
The grant to third parties of access to the investigation file
136. In support of the complaint that the new Director General of the ‘Risk Management’ DG and certain members of the administrative staff of the Coordination Division had access to the file compiled during the investigation procedure, the applicant supplies, first, in an annex to her application, an extract from the memorandum drafted by Mr X in reply to her memorandum of 14 March 2011 and an extract from a document drafted by the new Director General of the ‘Risk Management’ DG in the context of a formal appeal procedure initiated by the applicant against her annual appraisal for 2010, as she considers that the latter extract is heavily inspired by the former. Second, she produces, in an annex to her observations on the EDPS’s statement in intervention, two e-mails exchanged between the applicant and another member of the Bank’s staff.
137. As regards, in the first place, the two extracts from documents annexed to the application, the Tribunal finds that they each contain a sentence drafted in practically identical terms.
138. In that regard, the Tribunal observes that, in the letter to the EDPS of 2 February 2012, the Bank claims that the document of the new Director General of the ‘Risk Management’ DG, an extract of which is annexed to the application, was drafted by the new Director General in answer to a formal appeal which the applicant had submitted a few days after Mr X had retired, before the appeal panel called upon to adjudicate on her annual appraisal for 2010. As the entire appeal procedure had begun under the responsibility of Mr X, he had, before retiring, sent a copy of one of his memoranda to his successor, the new Director General of the ‘Risk Management’ DG. Those facts, which were not disputed by the applicant at the hearing, might therefore explain the similarity noticed in a sentence found in each of those two extracts. The Tribunal may reasonably expect that Mr X sent his successor all the information which he deemed relevant with the aim of helping him to adjudicate on the formal appeal referred to above. In any event, the two extracts supplied by the applicant do not prove to the requisite legal standard that the Bank had sent the new Director of the ‘Risk Management’ DG the memorandum which Mr X had drafted in response to the applicant’s complaint.
139. In the second place, as regards the exchange of e-mails between the applicant and another member of the Bank’s staff, the Tribunal observes that the first e-mail, in which it is mentioned that the new Director General of the ‘Risk Management’ DG asserted, before the appeal panel called upon to adjudicate on her annual appraisal for 2010, that he had received a copy of the memorandum which Mr X had sent in the context of the investigation procedure initiated by the applicant for harassment and that he had sent it to a subordinate of the applicant, was drafted by the applicant on 21 March 2012. In that e-mail, the applicant asked her correspondent whether the text which she had drafted did indeed reflect what the new Director General of the ‘Risk Management’ DG had said while being interviewed by the appeal panel, which she and her correspondent had attended. In her e-mail in reply of the following day, the staff member in question confirmed the wording of the text drafted by the applicant.
140. In that regard, the Tribunal finds that the member of the Bank’s staff involved in the exchange of e-mails on which the applicant relies did not provide direct testimony, but merely confirmed the words drafted by the applicant herself, which, moreover, were not drafted until 21 March 2012, although the hearing before the appeal panel had taken place in 2011. Furthermore, the applicant’s e-mail refers to Mr X’s memorandum being sent to a single member of the Bank’s staff and not, as she claims in her application, to ‘certain members of the staff’. The exchange of e-mails on which the applicant relies does not therefore, in the present case, have sufficient probative value to demonstrate that the Bank sent the new Director of the ‘Risk Management’ DG, and also a number of members of the staff of the Coordination Division, the memorandum drawn up by Mr X in response to the applicant’s complaint.
141. In the light of the foregoing considerations, it must be concluded that, as the applicant has failed to adduce proof in support of her argument, it has not been established that the Bank granted third parties access to the investigation file.
The communication of the entire memorandum of 14 March 2011 in its entirety, including the annexes thereto, to the alleged harassers
– The existence of the error
142. In support of her argument that the Bank erred in communicating the memorandum of 14 March 2011, with the annexes thereto, to the alleged harassers, the applicant raises a single plea in law, alleging breach of the obligation of confidentiality and of the rules on data protection provided for in the Policy.
143. The Tribunal notes that, in his statement in intervention, the EDPS raises a second plea, alleging infringement of Regulation No 45/2001. When questioned on that point at the hearing, the EDPS emphasised that this was not a second plea, but an argument in support of the plea raised by the applicant.
144. In that regard, it should be borne in mind that, although the fourth paragraph of Article 40 of the Statute of the Court of Justice, applicable to proceedings before the Tribunal pursuant to Article 7(1) of Annex I to that Statute, and Article 110(3) of the Rules of Procedure of the Tribunal do not preclude an intervener from submitting arguments that are new or differ from those of the party he supports, as otherwise his intervention would be limited to restating the arguments put forward in the application, it cannot be held that those provisions allow him to alter or distort the context of the dispute defined by the application by raising new pleas in law (see, to that effect, judgments in BaByliss
v Commission, T‑114/02, EU:T:2003:100, paragraph 417, and SELEX Sistemi Integrati
v Commission, T‑155/04, EU:T:2006:387, paragraph 42). The EDPS’s reasoning cannot therefore be accepted, since, in asserting that the Bank infringed certain provisions of Regulation No 45/2001, he did indeed raise a separate plea from the plea raised by the applicant alleging breach of the Policy.
145. As the EDPS does not have standing to raise a plea on which the application does not rely, this second plea must be rejected as inadmissible.
146. That having been said, the Tribunal must state that the Policy expressly provides that the alleged harasser is to be informed of the subject-matter of the complaint and is to obtain the necessary information in that regard, but that he is not to receive a copy of the complainant’s memorandum.
147. It follows from the wording of the Policy that the Bank breached the Policy when it communicated the applicant’s memorandum of 14 March 2011 in its entirety, including the annexes thereto, to Mr X and Mr Y. The Bank therefore made an error capable of giving rise to its non-contractual liability.
148. That conclusion is not affected by the Bank’s obligation to respect the rights of the defence or by the decision in X
v ECB (EU:T:2001:251) on which it relies. Contrary to the Bank’s contention, the investigation procedure cannot lead directly to a penalty being imposed on the alleged harasser, as that penalty can be decided only after disciplinary proceedings. Consequently, since the investigation procedure was not one in which a measure adversely affecting the alleged harassers could be taken, the Bank was not entitled to communicate all the applicant’s personal data to them in order to respect their rights of defence.
149. Nor can the Bank’s argument that the applicant had been informed in advance that the memorandum containing her complaint would be communicated to the alleged harassers succeed. The fact that the applicant did not expressly object to the communication of her memorandum, even if it were accepted that the Bank might have interpreted that as tacit consent to its communication, did not entitle the Bank to breach its own internal rules, in this instance the provision of its Policy expressly stating that the complainant’s memorandum was not to be communicated to the alleged harasser.
– The non-material damage and the causal link
150. The Tribunal notes that the applicant does not explain how the communication to the alleged harassers of the memorandum in its entirety, including the annexes thereto, impeded the smooth progress of the investigation procedure and thus caused her non-material damage. No actual non-material damage has therefore been established.
151. As regards the applicant’s assertion that the communication to the alleged harassers of the memorandum of 14 March 2011 in its entirety, with the annexes thereto, had repercussions on what was already a hostile working environment, in so far as that communication gave rise to negative rumours about her and thus undermined her reputation and her credibility, the Tribunal observes that the memorandum of 14 March 2011, including the annexes thereto, contains several items of the applicant’s personal data, notably data relating to her health. The Tribunal cannot but find that the communication of the applicant’s personal data to the alleged harassers caused her non-material damage.
– Compensation for the damage
152. It should be observed that the application contains no argument relating specifically to the evaluation of the non-material damage suffered by the applicant as a result of the Bank’s communication to the alleged harassers of the memorandum of 14 March 2011 in its entirety.
153. In those circumstances, it is appropriate to make an equitable evaluation of the non-material damage suffered by the applicant, which can be evaluated at EUR 5 000, and to order the Bank to pay that sum to the applicant under that head.
2. Interference with the hearing of witnesses
a) Arguments of the parties
154. The applicant takes issue with the Bank, first, for having supplied a number of persons whom she had named as persons who might be heard by the Investigation Panel with incorrect information about their possible testimony, with the consequence that they refused to give evidence. Second, she maintains that some of those potential witnesses were not even informed that she had proposed them as witnesses or invited to attend a hearing. The Bank thus interfered with the proper conduct of the investigation procedure and breached the principle of sound administration. That error on the Bank’s part caused the applicant non-material damage which she evaluates on an equitable basis at EUR 40 000.
155. The Bank disputes the merits of the allegations that it interfered with the hearing of witnesses.
b) Findings of the Tribunal
156. As regards the first complaint, it is apparent from the file that certain individuals whom the applicant had named as persons who might be heard by the Investigation Panel refused to give evidence. However, the applicant has not provided any evidence, or indeed any indication, in support of her argument that incorrect information supplied by the Bank was the cause of that refusal. Nor does the applicant herself appear to be certain of her assertion, since she states in her application that ‘it appears that … certain [individuals] made inquiries … at the Bank’s Human Resources Department about that procedure’ and that a reply ‘was purportedly given’ to them. This complaint must therefore be rejected.
157. As regards the second complaint, alleging that the Investigation Panel did not ask all the individuals whom the applicant had named as potential witnesses to testify, it is sufficient to state that the Policy provides that the Investigation Panel has the flexibility to proceed in the way it considers appropriate. While it is true that the Policy also provides that the Investigation Panel is to interview ‘any witnesses named by [the complainant]’, there is no basis on which that provision might be interpreted as meaning that the Investigation Panel is required to invite all the potential witnesses named by the complainant to attend a hearing. Conversely, as the Bank correctly maintains, it is for the Investigation Panel to decide which of the individuals named by the parties should be heard. The second complaint must therefore be rejected too.
158. As both complaints have been rejected, it must be concluded that it has not been established that the Bank interfered with the hearing of the witnesses proposed by the applicant.
159. It follows from all of the foregoing, and without there being any need to adopt the measures of inquiry requested by the applicant, that the Bank must be ordered to pay the applicant the sum of EUR 35 000 by way of reparation for the damage caused by the illegality of the decision of 27 July 2011 and by the Bank’s breach of the Policy.
Costs
160. 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.
161. It follows from the grounds set out in the present judgment that, as the action has been substantially upheld, the Bank is the unsuccessful party. Moreover, in her pleadings, the applicant has expressly applied for the Bank to be ordered to pay the costs. As the circumstances of the present case do not justify the application of Article 87(2) of the Rules of Procedure, it is appropriate to decide that the Bank must bear its own costs and be ordered to pay the costs incurred by the applicant, including the costs to which the EDPS’s intervention gave rise for both the Bank and the applicant.
162. In accordance with Article 89(4) of the Rules of Procedure, the intervener must bear his own costs.
Operative part
On those grounds,
THE CIVIL SERVICE TRIBUNAL (Second Chamber)
hereby:
1. Annuls the decision of the President of the European Investment Bank of 27 July 2011;
2. Orders the European Investment Bank to pay CG the sum of EUR 35 000;
3. Dismisses the action as to the remainder;
4. Declares that the European Investment Bank is to bear its own costs and orders it to pay the costs incurred by CG;
5. Declares that the European Data Protection Supervisor, intervener, is to bear his own costs.