JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

16 September 2013

Carla Faita

v

European Economic and Social Committee (EESC)

‛Civil service — Psychological harassment — Request for assistance — Reasons for a decision’

Application:

brought by Ms Faita pursuant to Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, seeking annulment of a decision of 14 June 2011, by which the European Economic and Social Committee (‘EESC’) rejected her complaint of 14 February 2011, together with an order that the EESC pay damages in the sum of EUR 15 000, as compensation for alleged non-material damage.

Held:

The application is dismissed. Ms Faita is to bear her own costs and is ordered to pay three quarters of the costs incurred by the EESC. The EESC is to bear one quarter of its costs.

Summary

Officials — Obligation of administration to provide assistance — Implementation in relation to psychological harassment — Obligation of the complainant to follow the procedure laid down in the internal rules of the institution before making any request for assistance — None)

Actions brought by officials — Interest in bringing proceedings — Application by an official claiming to have been the victim of psychological harassment challenging the rejection of a request for assistance — Retirement of the applicant after application filed — Continuation of interest in bringing proceedings

Officials — Obligation of administration to provide assistance — Request for assistance — Meaning — Request for a decision to be taken or compensation to be paid under Article 24 of the Staff Regulations — Cessation of the behaviour to which the request relates — No effect

A request for assistance includes not only a request made by an official claiming that he or a member of his family is currently being subjected, by reason of his position or duties, to threats, insulting or defamatory acts or utterances, or any attack to person or property, but also any request by an official inviting the appointing authority to take a decision or pay compensation pursuant to Article 24 of the Staff Regulations, even where the infringing behaviour has come to an end. (see para. 48) See: 8 February 2011, F 95/09 Skareby v Commission, paras 25 and 26

In principle, an official or former official who claims to have been the victim of psychological harassment, and who challenges the institution’s refusal to investigate the circumstances of a request for assistance, has an interest in bringing proceedings, even where the circumstances relied on have come to an end, or where the applicant is not seeking compensation for damage said to have been caused by the alleged harassment, the opening of disciplinary proceedings concerning the person alleged to have committed it, or the annulment of any of the measures which, in his view, contributed to it. A finding by the administration that psychological harassment has occurred can, in itself, have a beneficial effect in the therapeutic process of recovery of an individual who has been harassed. In this regard, the fact that the alleged victim was retired before the application was brought does not remove his interest in bringing proceedings. (see para. 55) See: Skareby v Commission, para. 26

In the context of an application relating to alleged psychological harassment, in determining whether there has been malicious behaviour, the Court must take into account the whole of the relevant factual background. A decision is an element of fact which may indicate that such behaviour has place, and is to be taken into account, together with others. In this regard there is no need to examine the lawfulness of the decision, and the fact that the relevant time-limits have expired does not prevent the Court from making a finding of harassment. That is particularly true as it is possible that discrimination will only become fully evident after expiry of the time-limits for bringing proceedings against a decision which manifests that discrimination. (see para. 57) See: 15 February 2011, F‑68/09 Barbin v Parliament, para. 109

In order for an application to be admissible, it suffices if a person of ordinary diligence can identify in the applicant’s argument at least one plea in support of one form of order being sought. If several pleas in support are readily identifiable then the application cannot be declared inadmissible. (see para. 61)

The administration is not obliged to adopt a position in relation to every argument advanced in an official’s request. Consequently, where pertinent reasons have been stated for a decision, the administration has no reason to depart from them when it determines a complaint against the decision, by substituting new and different reasons. (see para. 66)

The Court’s review of measures taken by an administration which received a request for assistance is limited to consideration of the question whether the institution concerned acted for a valid reason, and in particular whether it remained within reasonable bounds and did not exercise its discretion in a manifestly erroneous way. In this regard, it suffices, in order for the decision to be lawful, that one of the reasons given by the appointing authority is valid and sufficient. As regards the lawfulness of a decision to reject a request for assistance without launching an administrative investigation, the Court must consider whether the decision is well-founded in light of the circumstances which, at the time of the decision, had been brought to the administration’s attention, particularly by the person concerned in the request for assistance. (see paras 85, 98) See: 25 October 2007, T‑154/05 Lo Giudice v Commission, para. 137 and the case-law cited 14 April 2011, F‑113/07 Šimonis v Commission, paras 69 and 70

The fact that an official has been promoted does not show that he cannot have been the victim of harassment or malicious behaviour on the part of his superior, particularly where the decision to promote him was contrary to the superior’s opinion. (see para. 89)

The fact that an official’s staff reports are not negative does not show that there has been no harassment or malicious behaviour directed against that official, as such behaviour can take place outside the framework of the evaluation exercise. Marks and assessments, even negative ones, contained in a staff report cannot, as such, be regarded as evidence that the report was drawn up for the purpose of psychological harassment. (see para. 90) See: 2 December 2008, F 15/07 K v Parliament, para. 39

The fact that an official has not invoked the harassment procedure contained in the internal rules of an institution does not prevent the appointing authority from examining the truth of allegations made in a request for assistance addressed to the administration. An implementing provision can only provide a framework for a right provided by the Staff Regulations to be exercised, and cannot restrict its scope. Consequently, the institution concerned cannot subject the official’s right to make a request for assistance to a requirement that he must first use an internal procedure which is not laid down by the Staff Regulations. While it is desirable to use internal procedures created by the general implementing provisions, such procedures cannot deprive officials of the right given to them by the Staff Regulations to make a complaint against a staff report, or to bring an action before the Tribunal, without first exhausting those internal procedures. (see para. 91) See: 18 May 2009, F‑138/06 and F‑37/08 Meister v OHIM, paras 138 to 140

Although, faced with an incident which is incompatible with the good order and tranquillity of a department, the appointing authority is required to intervene, it is not required to institute an investigation on the basis of mere allegations which are not supported by at least some evidence. Indeed, for the protection of those who may be affected by such an investigation, the authority must satisfy itself, before opening an enquiry, that it has information capable of supporting such suspicions as it may have. Consequently, an official who makes a request under Article 24 of the Staff Regulations must provide some evidence of the reality of the attacks of which he claims to have been the victim. It is only when such evidence is provided that the institution is obliged to take the appropriate measures. (see para. 97) See: 26 January 1989, 224/87 Koutchoumoff v Commission, paras 15 and 16 12 July 2012, T‑308/10 P Commission v Nanopoulos, para. 152