Opinion of Mr Advocate General Mischo delivered on 24 January 2002. - Anna Maria Campogrande v Commission of the European Communities. - Appeal - Officials - Sexual harassment - Commission's duty of assistance - Liability. - Case C-62/01 P.



European Court reports 2002 Page I-03793



Opinion of the Advocate-General

1. Anna Maria Campogrande, a Commission official in Grade A 4, considers she has been the victim of sexual harassment on the part of her director, Mr A.

2. Having taken various informal steps, on 27 June 1997 Ms Campogrande requested the Commission's assistance under Article 24 of the Staff Regulations of Officials of the European Communities (the Staff Regulations), which is equivalent to a request under Article 90(1) of the Staff Regulations. The applicant was seeking from the Commission compensation for material and non-material damage and damage to her career as appropriate in her case.

3. The Commission failed to respond to her request. Consequently, on 21 January 1998 Ms Campogrande lodged a complaint under Article 90(2) of the Staff Regulations against the implied rejection of her request.

4. One week later, on 28 January 1998, the Commission initiated an administrative inquiry against Mr A. The inquiry heard evidence from Ms Campogrande, Mr A and other officials who could provide information regarding the kind of behaviour the complainant alleged her director had been guilty of.

5. However, no formal response was given to Ms Campogrande regarding the action which the administration intended to take with regard to her complaint.

6. In view of this silence, on 20 August 1998 the complainant brought an action before the Court of First Instance, registered as Case T-136/98.

7. Subsequently, on 29 October 1998, she was notified of the outcome of the administrative inquiry, which found that no sexual harassment had taken place.

8. In the statement of claim she submitted to the Court of First Instance, Ms Campogrande claimed the Court should declare that her action was admissible and well founded, should annul the implied decision rejecting her complaint of 21 January 1998 and should order the Commission to compensate for the non-material damage she had suffered as a result of the contested decision.

9. In Case T-136/98 Campogrande v Commission the Court of First Instance annulled the Commission's implied decision rejecting the request for assistance made by the appellant on 27 June 1997 but it dismissed the action as to the remainder. The Court dismissed the action on the grounds set out in paragraphs 66 to 72 of the judgment under appeal on the following grounds:

66 It should be pointed out first of all that in so far as it seeks damages to make reparation for the damage suffered as a result of the alleged retaliation to which the applicant was subjected after her complaint had been lodged, the claim for damages is inadmissible in the absence of proper pre-litigation procedure beforehand (Joined Cases T-17/90, T-28/91 and T-17/92 Camara Alloisio and Others v Commission [1993] ECR II-841). The applicant mentioned for the first time in her application the retaliatory measures which she allegedly suffered from her immediate superiors after Mr A left. Moreover, there is nothing in the text of the complaint, even if it is interpreted in a spirit of openness, to suggest to the defendant that the applicant was the subject of retaliation as a result of her complaint.

67 Furthermore, in that it claims that the Court of First Instance should order the defendant to reconstitute her career, the claim for damages falls outside the jurisdiction of the Community judicature which, according to settled case-law, may not issue directions to institutions (Joined Cases T-171/95 and T-191/95 Al and Others and Becker and Others v Commission [1998] ECR-SC I-A-257, II-803, paragraph 37).

68 As regards the non-material damage suffered by the applicant as a result of the uncertainty in which the Commission left her, in breach of its duty to exercise due care and attention, including the duty to proceed expeditiously, when considering complaints relating to sexual harassment, as regards the action it proposed to take on her request for assistance and the results of its administrative inquiry, it should be pointed out that, in the circumstances of this case, annulment of the contested decision is in itself appropriate compensation for that damage.

69 Lastly, the applicant has not proved to the requisite legal standard that she suffered non-material damage as a result of being exposed to the consequences of the acts of sexual harassment complained of in her request for assistance, exposure to which the Commission was indifferent. In order to do so she should at least have adduced evidence for the presumption that she did in fact suffer such harassment.

70 The fact remains that the applicant has not adduced such evidence. On the contrary, the administrative inquiry has shown the inconsistency of the accusations contained in the request for assistance. The facts preceding the incident on 27 February 1997, which Ms Campogrande described in that request as "comments on [her] person and repeated unwelcome advances quite outside the framework of a normal professional relationship", were later revealed to be mere expressions of friendship or mere coincidences which do not even warrant the description "incidents" (see in particular the account of those facts in the report of the hearings on 13 May and 10 June 1998 prepared by Ms Campogrande herself and attached to the report of the inquiry). As regards the incident on 27 February 1997 (see paragraph 12 above), none of the people present at the meeting has been able to confirm the version of the facts contained in the request for assistance.

71 As regards the professional difficulties described in the request, analysis of her personal file shows that throughout her career with the Commission the applicant has always considered that her abilities were insufficiently recognised (see the applicant's comments on her staff reports during the reference periods 1966/67 and 1981/83). Furthermore, although it is true that the applicant's staff reports for the periods 1987/89, 1989/91, 1991/93 and 1993/95 contain very favourable assessments of her abilities, it is also true that the same staff reports also mention Ms Campogrande's difficulties in her relations with other people and that the staff reports for the periods between 1966 and 1985 are not so full of praise for the applicant.

72 The action for damages should therefore be dismissed.

10. Since Ms Campogrande regarded those grounds as unfounded, on 12 February 2001 she brought an appeal against that judgment under Article 49 of the EC Statute of the Court of Justice, registered as Case C-62/01 P, claiming that it should be partially set aside.

11. More specifically, she claims that the Court of Justice should set aside the judgment in so far as it dismissed her claim for compensation, should acknowledge that sexual harassment did take place and that she had suffered non-material damage, should order the Commission to pay damages and lastly should order the Commission to pay the costs.

12. In so doing she relies on four pleas: breach of the obligation to state reasons due to a contradiction in the grounds of judgment, infringement of Community law and the relevant case-law on new pleas in law, justice denied in respect of liability, and infringement of the rights of the defence.

13. The defendant in the appeal, the Commission, contends that the Court should dismiss the appeal as inadmissible, or at least unfounded, that if the Court decides to set aside the judgment under review it should refer the matter back to the Court of First Instance, and that the appellant should be ordered to pay the costs.

14. I shall consider in turn, in the order in which the appellant submits them, the four pleas submitted in respect of the judgment under appeal.

First plea: breach of the obligation to state reasons due to the flagrant contradiction in, and inadequacy of, the grounds of judgment

15. The appellant divides her first plea into five parts, each corresponding to a different challenge to the reasoning followed by the Court of First Instance and the findings which it made, but all linked to breach of the obligation to state reasons.

16. The defendant regards this presentation as fallacious, in that the appellant, in the guise of criticism of the grounds of the judgment under appeal, criticism which can be linked to pleas that, under Article 225 EC and the first paragraph of Article 51 of the EC Statute of the Court of Justice, may be lodged in an appeal, is seeking to obtain a ruling from the Court of Justice based on findings and assessments of the facts, which cannot be challenged in an appeal.

17. In other words, the way in which the appellant has dressed up her plea cannot alter its intrinsic inadmissibility and, to quote the Commission, any claim made in an appeal that challenges the factual assessments made by the Court of First Instance must be rejected as inadmissible.

18. I cannot but agree with that statement. I do not think, however, that it is possible to reject outright the appellant's first plea as inadmissible. It is true that the objective pursued by the appellant in presenting the grounds put forward by the Court of First Instance as defective is to challenge the accuracy of the conclusion reached by that Court, which was that Ms Campogrande can aspire to no more than the annulment of the implied decision rejecting the request for assistance made on 27 June 1997.

19. It is also correct that that assessment is based on factual findings which cannot, save for manifest error or distortion, be challenged before the Court of Justice.

20. This does not to my mind mean, however, that the appellant is prevented from seeking to show in her appeal that the Court of First Instance in its absolute discretion drew inferences from the findings which at a strictly logical level are incompatible with those findings and hence create a contradiction revealing an incorrect application of the legal rule.

21. I therefore propose to adopt a narrow approach, carefully considering the complaints made by the appellant against the grounds for refusing any compensation, but excluding any argument which might be regarded as challenging findings of a factual nature or repudiating the discretion accorded to the Court of First Instance.

22. A series of factual findings does not yet constitute reasoning and it is essential, if one intends to reach a conclusion based on law, that such findings should be connected by considerations which are admissible from the point of view of legal logic. On this point the Court of Justice cannot refuse to exercise its powers of review when an appellant requests it to do so.

23. Under the first part of her first plea the appellant claims to point to a contradiction between the statement contained in paragraph 68 of the judgment under appeal that in the circumstances of this case, annulment of the contested decision is in itself appropriate compensation for the non-material damage caused to the appellant by the uncertainty in which the Commission left her as regards the action it proposed to take on her request for assistance and the results of its administrative inquiry, and the grounds given in paragraphs 41 to 59 of that judgment to justify annulment of the implied decision rejecting the request for assistance made by the appellant.

24. She maintains that the Court of First Instance was not entitled to state, as it did in paragraph 53 of the judgment under appeal, that the Commission's behaviour could not be regarded as complying with the duty to exercise due care and attention, including the duty to proceed expeditiously, which is inherent in the duty to provide assistance and at the same time consider that annulment provided appropriate compensation, especially since paragraph 55 of the judgment states that so far as sexual harassment is concerned uncertainty as regards the action the administration proposes to take on a complaint is always damaging to the dignity of both the complainant and the person accused and should always be avoided.

25. In describing annulment as appropriate compensation, the Court of First Instance, according to the appellant, downgraded the seriousness of the breaches alleged against the Commission.

26. For my part, I do not see where the contradiction lies.

27. A contradiction would exist if the Court of First Instance had initially recognised that non-material damage had been caused in this case, and was attributable to the Commission behaving in a way which conflicted with its obligations, but had subsequently denied that the appellant was entitled to compensation.

28. That is not the case, however, since the Court of First Instance did not deny Ms Campogrande's right to compensation, although to her great displeasure it did rule, within its discretion, that that right was satisfied by annulment.

29. When one considers the case-law of the Court of First Instance in respect of compensation for non-material damage suffered by an official as the result of an unlawful act, one finds that although on numerous occasions it has been held that the annulment of an act which has been challenged constitutes appropriate compensation, there are cases in which the Court of First Instance has ruled that appropriate compensation would not be provided by annulment owing to the fact that the unlawful act contained a negative assessment of the behaviour or capacity of the official which the official might feel was hurtful.

30. That case-law of the Court of First Instance is in line with the case-law of the Court of Justice which, in Culin v Commission, held that compensation for non-material damage may in some specific cases require more than annulment.

31. It is clearly because she considers she is entitled to the benefit of that case-law, in the light of the Court of First Instance's findings with regard to the Commission's behaviour in the part of the judgment relating to the claim for annulment, that Ms Campogrande claims that the Court of Justice should find there is a contradiction in the grounds of the judgment under appeal.

32. I can only observe, however, that in this case the Court of First Instance does not state anywhere in the grounds of its judgment that the appellant was entitled in the circumstances of this case to feel personally hurt. Moreover, it is apparent from the case-law of the Court of Justice that it will not review the appropriateness of compensation decided on by the Court of First Instance.

33. This can be seen clearly in Commission v Brazzelli Lualdi and Others, where the Court of Justice held that once the Court of First Instance has found the existence of damage, it alone has jurisdiction to assess, within the confines of the claim, the most appropriate compensation.

34. I do not intend to propose that the Court of Justice should go back on that case-law, but I would observe that, if I had thought the Court of Justice was required to rule on whether the compensation was appropriate, I would have pointed out that the strictness which the Court of First Instance showed in its assessment of the Commission's behaviour, which is also pointed out by the appellant, should have been accepted by the appellant as totally appropriate compensation for the non-material damage she suffered, since it is settled case-law that the operative part of a judgment must always be read in the light of the grounds of the judgment and in this instance not only was the Commission's case rejected, the Commission itself was censured.

35. In the absence of any identifiable contradiction and in the presence of a discretion that is vested exclusively in the Court of First Instance, the first part of the first plea can only be rejected.

36. We now come to the second part of the first plea, under which the appellant accuses the Court of First Instance of stating that she has not established to the requisite legal standard that she suffered non-material damage through being exposed, to the indifference of the Commission, to the consequences of the acts of sexual harassment complained of in her request for assistance, whilst neither Mr A's alleged gesture nor his remark are disputed and, in the light of the criteria laid down in all the legal instruments relating to sexual harassment which are acknowledged to apply in this case, constitute such behaviour.

37. That criticism is derived, as the Commission very properly states, from a misreading of the judgment under appeal. Nowhere in that judgment does the Court of First Instance find that Ms Campogrande had indeed been the victim of sexual harassment. What the Court of First Instance found, which was very different, was merely that the information contained in the appellant's complaint required the Commission to afford her assistance by initiating an inquiry.

38. However, according to the official who conducted it, the inquiry which was eventually initiated did not show either that Mr A's behaviour at the meeting on 27 February 1997 amounted to sexual harassment or that Mr A had on any other occasion previously behaved in a way that could be described as such.

39. Logically, therefore, it was for Ms Campogrande to prove to the Court of First Instance that the findings of the inquiry were incorrect.

40. The degree of credibility required of the complainant is not at all the same when an inquiry is to be instigated as it is when the negative outcome of an inquiry is being challenged.

41. The Court of First Instance was entitled to consider, without there being any contradiction, that an inquiry should be initiated but that, following the inquiry, no sexual harassment, and hence no consequent damage to the appellant, had been found to have occurred.

42. In the absence of any contradiction or lack of an adequate statement of reasons, the appellant's criticisms appear to be no more than an attempt, which is by definition inadmissible, to challenge the findings made in its discretion by the Court of First Instance, in accordance with the rules on the burden of proof. They cannot therefore succeed.

43. Under the third part of her first plea the appellant alleges that there is a contradiction, amounting to a denial of justice, in the grounds of the judgment of the Court of First Instance. That contradiction lies in the fact that paragraph 70 of the judgment under appeal states that the appellant had not adduced evidence of sexual harassment and that the administrative inquiry had shown the inconsistency of the accusations contained in the request for assistance, whilst in that part of the judgment which related to the action for annulment there was harsh criticism of the conditions under which the inquiry had been conducted.

44. I think that this is yet another attempt to challenge the assessments of the Court of First Instance with regard to the reality of some of the facts alleged by the appellant, an attempt which should be considered inadmissible.

45. I cannot see where there is any contradiction since, although the inquiry may have been criticised by the Court of First Instance, this was not in respect of the credibility of its results (which Ms Campogrande was unable to disprove), but merely in respect of the delay in instigating it and the time it took to complete, which although regrettable cannot discredit the inquiry's results.

46. The issue raised in the fourth part of the first plea, which claims that there were insufficient grounds and an error of reasoning in paragraph 71 of the judgment under appeal, is also inadmissible. Ms Campogrande asserts that the Court of First Instance should have considered whether her professional difficulties did not originate from the sexual harassment which she had experienced and which the Court of First Instance established in paragraph 12 of its judgment.

47. We are on the verge of bad faith here, since paragraph 12 of the judgment under appeal, far from conveying the opinion of the Court of First Instance, merely sets out the claims of the appellant. In fact, in paragraph 71 of its judgment, the Court, having established in the preceding paragraph that sexual harassment had not been established to the requisite legal standard, held, as it was entitled to do, that examination of Ms Campogrande's personal file gave a picture of the appellant which was not altogether that given in the application. That assessment cannot be discussed in the context of an appeal.

48. I now come to the fifth and last part of the first plea.

49. Under that part the appellant, using a number of terms such as rights of the defence, the principle of the protection of legitimate expectations and denial of justice, accuses the Court of First Instance, if I understand her correctly, of failing to answer the substance of her application, both as regards the existence of sexual harassment and as regards the reliability of the results of the inquiry.

50. That accusation is unfounded since, as we saw above, the Court of First Instance ruled that the evidence adduced by the appellant was insufficient to cast doubt on the result of the inquiry, namely that the complaints of sexual harassment made by Ms Campogrande against Mr A were futile, but it is also inadmissible because it amounts to a challenge to the findings and assessments of the Court of First Instance.

51. On completion of my examination of the various parts of the first plea of the appeal, I consider that that plea is inadmissible in part and unfounded in part, so that it should at any event be rejected.

Second plea: infringement of Community law and the relevant case-law on new pleas in law

52. The second plea concerns paragraph 66 of the judgment under appeal, which reads:

It should be pointed out first of all that in so far as it seeks damages to make reparation for the damage suffered as a result of the alleged retaliation to which the applicant was subjected after her complaint had been lodged, the claim for damages is inadmissible in the absence of proper pre-litigation procedure beforehand (Joined Cases T-17/90, T-28/91 and T-17/92 Camara Alloisio and Others v Commission [1993] ECR II-841). The applicant mentioned for the first time in her application the retaliatory measures which she allegedly suffered from her immediate superiors after Mr A left. Moreover, there is nothing in the text of the complaint, even if it is interpreted in a spirit of openness, to suggest to the defendant that the applicant was the subject of retaliation as a result of her complaint.

53. In the appellant's view, the Court of First Instance was wrong to consider that this was a new plea in law the raising of which in the course of proceedings is prohibited by the Rules of Procedure, when in fact it was a new argument in support of pleas already contained in the application.

54. From the outset the appellant had sought compensation for all the damage she had suffered as the result of Mr A's behaviour and the Commission's inertia, so the compensation sought due to the retaliation allegedly suffered after the complaint had been brought was clearly part of that overall compensation. She also contends, as an alternative claim, that the case-law of the Court of Justice accepts that if a complaint constitutes a preliminary intended to permit or promote the amicable settlement of a case, it is not the function of that complaint to bind strictly and absolutely the judicial stage of the proceedings, provided that the claims submitted at this latter stage change neither the cause nor the object of the complaint. Finally she points to the judgment in Koutchoumoff v Commission, which reads:

... the Court has consistently held that an official may not submit to the Court conclusions with a subject-matter other than those raised in the complaint or put forward heads of claim based on matters other than those relied on in the complaint. The submissions and arguments made to the Court in support of those heads of claim need not necessarily appear in the complaint but must be closely linked to it (judgment of 20 May 1987 in Case 242/85 Geist v Commission [1987] ECR 2181). ...

55. As far as she is concerned, the claim for damages to make reparation for the damage caused by the retaliation has the same legal basis and subject-matter as the original action, which was for compensation for the damage suffered. The refusal to consider the plea relating to the retaliation on the ground that it was not mentioned in the original action was akin to a denial of justice since it is clear that the retaliation, which is one of the consequences of the appellant's action, was unforeseeable when the complaint was made.

56. From the way I see it, all those arguments are undermined from the outset by a flaw which I should not hesitate to describe as fundamental, namely confusion between a claim and a plea and between subject-matter and legal basis. When Ms Campogrande claims damages in reparation for the alleged retaliation she suffered as a result of making her original complaint, she is making a claim which has nothing to do with her claim for compensation for the damage caused to her by the implied decision rejecting her request for assistance and the sexual harassment to which Mr A is said to have subjected her.

57. This is not a claim which is simply an extension of the original claim and which might be considered to see if it was implicitly included in the initial claim, it is unquestionably a new and totally separate claim.

58. As regards the retaliation following the lodging of the complaint, assuming it took place, it is behaviour which does not tally chronologically with the alleged sexual harassment and the inertia with which the Commission dealt with the request for assistance.

59. It is also behaviour which could not be attributed to the person who allegedly committed the sexual harassment, since it is not disputed that Mr A was on leave on personal grounds from mid-June 1997, which was before the request for assistance was even made, and therefore no longer occupied a superior position which would enable him to engage in retaliation. The complaint referred simply to retaliation in the form of bullying and humiliation, and destabilising activities to which the appellant was subjected by her director, Mr A. A claim for damages to compensate for retaliation suffered after Mr A's departure could not therefore be founded on the same legal basis.

60. Since these are two separate claims there can be no question of the appellant being entitled to benefit under the advantageous case-law she is relying on. Nor can the appellant claim application by analogy of the rules applying in the event of any factual evidence coming to light during the written procedure which was unknown to the appellant when she lodged her application. The principles underlying proceedings involving Community officials mean that the administration can always avoid being brought before the judicature by granting a claim submitted to it previously. It has been established that Ms Campogrande did not lodge any complaint with the administration against the refusal of a claim for damages to compensate for the damage she sustained as a result of retaliation against her following her complaint against the implied refusal to grant her assistance in the light of the sexual harassment which she considered she had suffered.

61. The Court of First Instance was therefore correct in ruling that the claim for damages to compensate for the damage she suffered due to retaliation as a result of her lodging a complaint was inadmissible. The second plea should therefore be rejected as unfounded.

Third plea: justice denied in respect of liability

62. In her third plea the appellant criticises paragraph 67 of the judgment under appeal, which reads:

Furthermore, in that it claims that the Court of First Instance should order the defendant to reinstate her, the claim for compensation falls outside the jurisdiction of the Community judicature which, according to settled case-law, may not issue directions to institutions (Joined Cases T-171/95 and T-191/95 Al and Others and Becker and Others v Commission [1998] ECR-SC I-A-257, II-803, paragraph 37).

63. She contends that she did not apply for a direction to be given to the Commission but that she was seeking compensation for the non-material damage she had suffered, compensation which the Court of First Instance had refused to award her, because in the circumstances of this particular case, contrary to what the Court of First Instance had held, the hurtful nature of the Commission's behaviour had meant that annulment could not provide appropriate compensation.

64. I shall not repeat what I said in my consideration of the first part of the first plea regarding the fact that in the context of an appeal, save where there has been a manifest error, it is not possible to dispute whether compensation awarded by the Court of First Instance is appropriate.

65. I shall merely observe that if the appellant, in the guise of alleging that justice has been denied, seeks to challenge the merits of the judgment under appeal in respect of the compensation which she may claim such action will be ruled inadmissible.

Fourth plea: infringement of the rights of the defence

66. In her fourth plea the appellant accuses the Court of First Instance of drawing inferences from the administrative inquiry instigated by the Commission when she had complained that the conditions under which it had been conducted were unacceptable in her view as regards both the rights of the defence and their subject-matter, namely potential sexual harassment. She therefore maintained that by covering up that infringement of the rights of the defence the Court of First Instance had itself infringed those rights.

67. Once again this is a plea which cannot succeed. In order for the Court of First Instance to be accused of an infringement of the rights of the defence it would be necessary to establish that the Court had not permitted the appellant to adduce evidence of the facts she had alleged in her request for assistance and that the findings reached by the inquiry eventually instigated by the Commission were inaccurate.

68. It is incorrect to imply, as the appellant does, that the Court of First Instance merely appropriated the results of the inquiry without giving the appellant the opportunity to dispute them. On the contrary, the Court assessed the evidence submitted by Ms Campogrande in the particularly favourable light called for when considering complaints of sexual harassment, since it states in paragraph 69 of the judgment under appeal that it was prepared to take into consideration evidence for the presumption that she did in fact suffer such harassment.

69. But it was obliged to find subsequently, on the grounds given in paragraph 70 of the judgment under appeal, that such evidence had not been adduced. It therefore, whilst exercising a discretion which cannot be denied it, gave credence to the results of the inquiry. The plea must therefore be rejected as unfounded.

Conclusion

70. Having reached the end of my consideration of the pleas submitted by the appellant in support of her appeal and having found that those pleas are without exception either inadmissible or unfounded, I can only suggest that the Court of Justice should:

- dismiss the appeal;

- order the appellant to pay the costs.