JUDGMENT OF THE CIVIL SERVICE TRIBUNAL



(Second Chamber)

8 February 2011

Case F-95/09

Carina Skareby

v

European Commission

(Civil service — Officials — Psychological harassment by a hierarchical superior — Articles 12a and 24 of the Staff Regulations — Request for assistance — Reasonable period — Point from which time starts to run — Length of time)

Application: brought under Articles 236 EC and 152 EA, in which Ms Skareby seeks, in essence, annulment of the decision of the Commission of 4 March 2009 refusing to open an administrative inquiry into allegations of psychological harassment on the part of one of her hierarchical superiors.

Held: The decision of the Commission of 4 March 2009 refusing to open an administrative inquiry into allegations of psychological harassment on the part of one of the applicant’s hierarchical superiors is annulled. The Commission is ordered to pay all the costs.

Summary

1. Officials — Actions — Interest in bringing proceedings

(Staff Regulations, Art. 91)

2. Officials — Obligation of administration to provide assistance — Implementation in relation to psychological harassment — Submission of a request for assistance — Duty to act within a reasonable time

(Staff Regulations, Arts 12a, 24 and 90(1))

3. Officials — Obligation of administration to provide assistance — Implementation in relation to psychological harassment — Submission of a request for assistance — Point from which time starts to run

(Staff Regulations, Art. 12a)

4. Officials — Obligation of administration to provide assistance — Implementation in relation to psychological harassment — Submission of a request for assistance — Duty to act within a reasonable time — Duration of period

(Statute of the Court of Justice, Art. 46; Staff Regulations, Art. 24)

1. In so serious a matter as psychological harassment it must be accepted that the official who is the supposed victim of such harassment, who brings an action against the institution’s refusal to consider the merits of a request for assistance, retains as a rule a legitimate interest as required by case-law as a condition for the admissibility of an application, even if he is not seeking compensation for any damage resulting from the alleged harassment, or initiation of disciplinary proceedings against the alleged perpetrator of the harassment, and even if the harassment is deemed to have ceased a number of years previously.

That approach is called for primarily because of the very seriousness of psychological harassment, conduct which may have extremely destructive effects on a person’s state of health. The supposed victim of psychological harassment retains an interest in bringing proceedings, irrespective of whether such harassment persists or whether the person in question makes, or is even entitled or intends to make, other claims, in particular for compensation, in respect of the psychological harassment. A finding by the administration that psychological harassment has occurred is, in itself, likely to have a beneficial effect in the therapeutic process of recovery of an individual who has been harassed.

(see paras 23, 25, 26)

See:

30 November 2009, F-80/08 Wenig v Commission, para. 35

2. There is an obligation to act within what must be a ‘reasonable’ period in all cases where, in the absence of any written rule, the principles of legal certainty or protection of legitimate expectations preclude European Union institutions and natural persons from being free to act without any time constraints, thereby engendering a risk, amongst other things, of undermining the stability of legal positions already acquired.

In so far as a request for assistance in respect of alleged psychological harassment seeks a declaration that there has been unlawful and improper conduct on the part of an official or other servant and it cannot be excluded that such conduct, where it occurred in the exercise of the duties of the alleged perpetrator, may, where appropriate, render the institution concerned liable, a request for assistance invoking such conduct has a legal connection with any claim for compensation submitted to the administration by an official on the basis of Article 90(1) of the Staff Regulations. For compensation claims, case-law requires that the complainant act within a ‘reasonable’ time. It must therefore also be acknowledged that there is a period within which an official must submit a request for assistance in respect of psychological harassment.

(see paras 41, 43, 44)

See:

6 July 2004, T-281/01 Huygens v Commission, paras 42 and 46 to 48; 5 October 2004, T-144/02 Eagle and Others v Commission, paras 57 and 66

11 May 2010, F-30/08 Nanopoulos v Commission, para. 117, on appeal before the General Court of the European Union, Case T-308/10 P; 9 July 2010 F-91/09 Marcuccio v Commission, para. 32, on appeal before the General Court of the European Union, Case T-450/10 P

3. According to Article 12a(3) of the Staff Regulations, psychological harassment is conduct that takes place over a period and is repetitive or systematic. Psychological harassment therefore constitutes an offence which is continuous by definition, necessarily takes place over time and, in order for it to be regarded as having taken place, assumes the existence of conduct which must be repeated or systematic. Moreover, the symptoms may not appear until a certain time after the occurrence of the initial acts of psychological harassment or the full awareness by the victim of the significance of those acts, with the victim moreover often needing time to realise what is happening to him and to escape from the harasser’s control.

It thus appears more appropriate, in view of the specific nature of psychological harassment and the requirement of legal certainty, to take exclusively objective criteria as a basis, adopting as the point from which time starts to run for submission of a request for assistance in respect of psychological harassment the last act of such harassment on the part of the alleged perpetrator or, in any event, the time from which the alleged perpetrator is no longer in a position to continue to harass the victim, irrespective both of the awareness or realisation by the victim of the various acts of psychological harassment, and of the act whereby the improper conduct of the alleged perpetrator becomes ‘systematic’ ‘over a period’, a situation which is required in order for it to be found that such harassment has taken place.

(see paras 47, 49)

4. In the light of the legal connection between a claim for compensation by an official and a request for assistance on grounds of psychological harassment, and in the absence of any relevant reason for disregarding the point of reference described above, it must be acknowledged, first, that the period within which a request for assistance should be submitted must be reasonable, and second, that a period of five years, in line with the period laid down in Article 46 of the Statute of the Court of Justice, is, as a rule, to be regarded as a reasonable period within which to make a valid report of psychological harassment to the administration and request its assistance, by seeking in particular the opening of an administrative inquiry in that regard. That length of time allows both the administration to comply fully with its duty to have regard for the welfare of officials and with its obligations under Article 24 of the Staff Regulations, where appropriate taking measures on its own initiative, and the person concerned to have a sufficiently long period within which to submit his claims to the institution; it also enables account to be taken of the particular features associated with the concept of psychological harassment, namely the fact that the symptoms may not appear until some time after the first acts of psychological harassment and that the victim often needs time to realise what is happening to him and to escape from the harasser’s control.

However, and by analogy with what is allowed in actions for damages by officials, the five-year period for submitting a request for assistance in respect of psychological harassment cannot be regarded as a hard and fast rule. In particular, although a request for assistance in respect of psychological harassment submitted within the five-year period is as a rule admissible, that may not be so in special circumstances to be appraised on the basis of the importance of the case for the person concerned, the complexity of the case and the conduct of the applicant.

(see paras 53, 54)

See:

4 November 2008, F-87/07 Marcuccio v Commission, para. 30