JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

10 July 2014

Case F‑103/11

CG

v

European Investment Bank (EIB)

(Civil service — Staff of the EIB — Psychological harassment — Investigation procedure — Decision of the President to take no action on a complaint — Opinion of the Investigation Panel — Incorrect definition of psychological harassment — Intentional nature of the behaviour — Establishment of the existence of the behaviour and of the symptoms of psychological harassment — Attempt to establish a causal link — None — Inconsistency of the opinion of the Investigation Panel — Manifest error of assessment — Maladministration — Duty of confidentiality — Protection of personal data — Action for damages)

Application: under Article 270 TFEU, in which 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 pay compensation 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.

Held: The decision of the President of the European Investment Bank of 27 July 2011 is annulled. The European Investment Bank is ordered to pay CG the sum of EUR 35 000. The remainder of the action is dismissed. The European Investment Bank is to bear its own costs and is ordered to pay the costs incurred by CG. The European Data Protection Supervisor, intervener, is to bear its own costs.

Summary

1. Officials — Staff of the European Investment Bank — Internal investigation into alleged psychological harassment — Opinion of the Investigation Panel vitiated by irregularities — Failure to observe definition of harassment laid down in the Bank’s internal regulations — Failure to check link between the alleged conduct and the symptoms presented by the alleged victim — President’s decision adopted on the basis of the opinion to take no action on the complaint — Manifest error of assessment

(Staff Regulations of Officials, Art. 12a; Staff Code of Conduct of the European Investment Bank, Art. 3.6.1; Policy on Dignity at Work of the European Investment Bank, Art. 2.1)

2. Officials — Staff of the European Investment Bank — Psychological harassment — Definition — Attack on self-esteem and self-confidence — No requirement that harasser should have malicious intent

(Staff Regulations of Officials, Art. 12a; Staff Code of Conduct of the European Investment Bank, Art. 3.6.1; Policy on Dignity at Work of the European Investment Bank, Art. 2.1)

3. Actions brought by officials — Judgment annulling a measure — Effects — Obligation to implement — Judgment annulling a decision to take no action on a complaint of psychological harassment — Applicant’s claim for compensation for the material damage suffered — Claim premature

(Art. 266 TFEU)

4. Actions brought by officials — Actions for damages — Annulment of the contested measure not constituting adequate compensation for non-material harm — Damage associated with the applicant’s state of uncertainty and distress as a result of the decision to take no action on her complaint of psychological harassment

(Art. 340(2) TFEU)

5. Judicial proceedings — Costs — Taxation — Recoverable costs — Definition — Legal fees incurred during a pre-litigation investigation procedure for harassment — Not included

(Rules of Procedure of the Civil Service Tribunal, Arts 86 and 91)

6. Judicial proceedings — Intervention — Plea in law not raised by the applicant — Inadmissibility

(Statute of the Court of Justice, Art. 40, fourth para., and Annex I, Art. 7(1); Rules of Procedure of the Civil Service Tribunal, Art. 110(3))

7. Officials — Staff of the European Investment Bank — Internal investigation into alleged psychological harassment — Communication by the administration of the complaint in its entirety to the alleged harasser in breach of the Bank’s internal policy — Maladministration capable of giving rise to the Bank’s liability

(Art. 340 TFEU)

1. 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 discretion is subject.

A decision of the President of the European Investment Bank to take no action on a complaint of psychological harassment adopted on the basis of the opinion of an Investigation Panel is vitiated by a manifest error of assessment where, first, it is clear from that opinion that the alleged harassers’ behaviour was not examined by reference to the definition of psychological harassment set out in the EIB’s internal guidelines, and, secondly, the opinion 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.

(see paras 66, 87)

See:

judgment in Canga Fano v Council, T‑281/11 P, EU:T:2013:252, para. 127

judgment in Canga Fano v Council, F‑104/09, EU:F:2011:29, para. 35

2. There will be psychological harassment, within the meaning of Article 2.1 of the EIB’s Policy on Dignity at Work, read with Article 3.6.1 of the Staff Code of Conduct of the Bank, 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.

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. 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.

(see para. 69)

3. The annulment of a measure by the Courts has the effect of retroactively eliminating that measure from the legal order and, where the measure annulled has already been carried out, the cancellation of its effects requires that the applicant be restored to the legal position he was in before that measure was adopted. 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.

In the context of the measures to be adopted in order to comply with a judgment annulling an institution’s decision to take no action on a complaint of psychological harassment, as the Union judicature cannot prejudge the findings of any new investigation procedure on the complaint, it cannot, at this stage, order the institution to compensate the applicant for the material damage which he has suffered. It follows that the applicant’s claims to that effect cannot be granted, as they are in any event premature.

(see paras 97, 98, 115)

See:

judgment in Kalmár v Europol, F‑83/09, EU:F:2011:66, para. 88

4. 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. 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.

As regards the annulment of a decision to take no administrative action on the applicant’s complaint of psychological harassment, that decision placed him in a state of uncertainty and distress constituting non-material harm that can be separated from the illegality on which its annulment was based and is not capable of being compensated in full solely by the annulment of that decision.

(see paras 99, 100)

See:

judgments in CC v Parliament, F‑9/12, EU:F:2013:116, para. 128, on appeal before the General Court of the European Union, Case T‑457/13 P; CH v Parliament, F‑129/12, EU:F:2013:203, para. 64

5. 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 Civil Service Tribunal and they must be dealt with in that context. As for legal fees incurred during an 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 an 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 his action for damages, reimbursement of the legal costs and expenses incurred during the investigation procedure.

(see para. 117)

6. Although the fourth paragraph of Article 40 of the Statute of the Court of Justice, applicable to proceedings before the Civil Service 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.

Consequently, since an intervener does not have standing to raise a plea on which the application does not rely, such a plea must be rejected as inadmissible.

(see paras 144, 145)

See:

judgments in BaByliss v Commission, T‑114/02, EU:T:2003:100, para. 417; and SELEX Sistemi Integrati v Commission, T‑155/04, EU:T:2006:387, para. 42

7. In the context of an investigation procedure for psychological harassment, it is clear from the Policy on Dignity at Work of the European Investment Bank that the Bank breaches the Policy when it communicates the complainant’s memorandum in its entirety to the alleged harasser. The Bank therefore makes an error capable of giving rise to its non-contractual liability.

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 is not one in which a measure adversely affecting the alleged harasser could be taken, the Bank is not entitled to communicate all the complainant’s personal data to him in order to respect his rights of defence.

In that regard, the fact that the complainant does not expressly object to the communication of his memorandum does not entitle the Bank to breach its own internal rules.

Moreover, where the memorandum contains several items of the complainant’s personal data, notably data relating to his health, the communication of those personal data to the alleged harasser causes the complainant non-material damage.

(see paras 146-149, 151)

See:

judgment in T‑333/99 X v ECB, T‑333/99, EU:T:2001:251