Case T‑377/17

SQ

v

European Investment Bank

(Civil Service — EIB staff — Complaint of psychological harassment — Administrative enquiry — Concept of ‘psychological harassment’ — Requirement that the conduct complained of must be repetitive in order to constitute ‘psychological harassment’ — Refusal to initiate disciplinary proceedings against the person responsible for that conduct — Duty of confidentiality in relation to an ongoing administrative enquiry and, subsequently, to the decision terminating the procedure finding that there had been psychological harassment)

Summary — Judgment of the General Court (First Chamber), 13 July 2018

Officials — Staff of the European Investment Bank — Non-contractual liability — Conditions — Unlawfulness — Acts of one member of staff towards another — Precluded — Possibility for the victim of referring the matter to a national court — No obligation of the Bank to assist the victim

As regards the pre-litigation procedure specific to cases involving the European Investment Bank, unlike the situation prior to 1 July 2013, Article 41 of the Bank’s Staff Regulations now requires the conciliation procedure to be initiated prior to bringing an action against the Bank under that provision. Since the Bank’s failure to nominate the member who is to form part of the Conciliation Board and who is then to choose, in agreement with the member nominated by the member of staff concerned, the third member of the board completely prevents the proper establishment of the Conciliation Board, it must be held that the failure to nominate that member by the Bank within the period of one week referred to in Article 41 of the Staff Regulations results in the failure of the conciliation procedure. It follows that, where an action has been brought it has to be considered that the applicant had in fact submitted the dispute relating to the conciliation procedure before bringing the action, which, therefore, is not premature on any view. (see paras 71, 74, 75)

Words, attitudes or acts by a member of staff of the European Investment Bank towards another member of staff constitute psychological harassment where they have objectively entailed an attack on the self-esteem and self-confidence of that person. In that regard, it cannot be required that an act has to be repeated in identical terms in order to come within the concept of psychological harassment, without regard to the cumulative effect of different acts on the attack on the self-esteem and self-confidence of the recipient of such acts. The definition of the concept of psychological harassment in Article 3.6.1 of the Bank’s Code of Conduct requires the repetition, and in addition over a fairly long period, of hostile or tasteless remarks, acts or behaviour in order for such conduct to fall within that concept. Viewed in that light, the definition bears a similarity to that set out in Article 12a of the Staff Regulations. Therefore, the reference in the case-law concerning Article 12a of the Staff Regulations to a process that occurs over time and presumes the existence of repetitive or continual conduct can also apply by analogy for the purpose of applying the concept of psychological harassment applicable to members of staff of the Bank. In that regard, the concept of psychological harassment differs from sexual harassment. While a finding of sexual harassment does not necessarily depend on the recurrence of the unwelcome behaviour with sexual undertones, a finding of psychological harassment is the outcome of a finding of a set of acts and cannot in principle be made on the basis of a finding of a single isolated act. That is why the fact that a member of staff may have accidentally adopted an inappropriate tone at meetings or in discussions with another member of staff is not, in principle, covered by the concept of psychological harassment. As a result of a process over time, psychological harassment may, by definition, be the outcome of a set of different acts by one member of staff of the Bank towards another which, considered in isolation, would not necessarily constitute per se psychological harassment but which, viewed as a whole and in context, including because of their build-up over time, could be regarded as having objectively entailed an attack on the self-esteem and self-confidence of that other member of staff at whom the acts were directed for the purpose of Article 3.6.1 of the Code of Conduct. That is why, when examining whether the acts alleged by the member of staff concerned constitute psychological harassment, those facts should be examined both individually and jointly as part of the general working environment created by the behaviour of one member of staff towards another. (see paras 88-94, 96)

The concept of psychological harassment referred to in Article 3.6.1 of the Code of Conduct of the European Investment Bank is based on an objective concept which, although based on a contextual classification of the actions and behaviour of officials and other members of staff, which is not always straightforward, does not, in any event, call for complex assessments to be carried out, such as those that may have to be conducted in respect of economic concepts, scientific concepts or technical concepts, which warrant a margin of discretion being afforded to the administrative body in applying the concept in question. Therefore, where it has been alleged that Article 3.6.1 of the Code of Conduct was misapplied, it is necessary to examine whether the Bank erred in its assessment of the facts in the light of the definition of psychological harassment laid down in that provision, not whether that error is manifest. (see para. 99)

Like the institutions and agencies of the EU, the European Investment Bank is free to organise its administrative units taking account of a whole range of factors, such as the nature and scope of the tasks assigned to them, the budgetary possibilities and changes in the Bank’s priorities. That freedom includes the power to abolish posts and to change the tasks allocated to surviving posts, in the interests of better organisation of work, and the power to reassign tasks previously carried out by the holder of an abolished post. (see para. 104)

Just as the promotion of staff members does not preclude them from being a victim of harassment or malicious behaviour on the part of their superiors, the fact that a staff member’s career progression slowed down does not necessarily in itself amount to psychological harassment. (see para. 113)

Concerning the officials and other members of staff covered by the texts referred to in Article 336 TFEU, as regards the measures to be taken in a situation falling within the scope of Article 24 of the Staff Regulations, the administration enjoys a broad discretion — subject to review by the EU judicature — regarding the choice of measures and methods for implementing Article 24 of the Staff Regulations. Similarly, as regards staff members of the European Investment Bank, for the purpose of implementing the Dignity at Work Policy, the President of the Bank enjoys a broad discretion in defining the measures to be taken in response to the report of the Investigation Panel, set up in order to examine alleged psychological harassment. In light of the objectives pursued by the Bank’s Code of Conduct and the Dignity at Work Policy and, in particular, the inherent seriousness of all acts of psychological harassment as asserted in those texts adopted by the Bank, a measure adopted by the Bank applicable only if the person concerned reoffends is insufficient and, therefore, inappropriate having regard to the seriousness of the instant case. Such a measure means that the penalty for proven psychological harassment would be dependent on a fresh finding of improper conduct even though that finding would be conditional on the uncertain decision of the new victim whether or not to submit a complaint under the Dignity at Work Policy. (see paras 135, 137, 140, 141)

The President of the European Investment Bank or its departments cannot attach a level of confidentiality to a decision terminating a procedure finding that there had been psychological harassment and a letter of apology from the proven harasser, the result of which is to prevent the victim from disclosing to third parties the existence and content of those documents. In that regard, conducting the administrative inquiry through to completion is important in particular because, should the Bank find that there has been psychological harassment upon completion of the administrative inquiry, which may have been conducted with the assistance of a separate department, such as the Investigation Panel, this in itself is likely to have a beneficial effect in the therapeutic process of recovery of an official or other member of staff who has been harassed and may also be used by the victim for the purposes of a national court action. On the other side of the equation, the conduct of an administrative inquiry through to completion may make it possible to disprove the allegations made by the purported victim, thereby making it possible to repair the damage which such an accusation, should it prove to be unfounded, may have caused to the person named as the alleged harasser by an inquiry procedure. However, if a staff member of the Bank who has been the victim of psychological harassment were required to stay silent as to the existence of such harassment, the effect would be, besides the fact that that person would no longer necessarily be able to cite illness relating to that psychological harassment to justify possible absences, that the person concerned would not be able to rely on the findings made by the Investigation Panel and the President of the Bank in, respectively, the report and the contested decision, particularly in any action brought before a national court against the harasser. Such an interpretation of the rules applicable to the Bank would be at odds with the objective underlying the Code of Conduct and the Dignity at Work Policy to prevent and punish all psychological harassment within the institutions and bodies of the European Union, even though psychological harassment, in so far as it affects the health and dignity of the victim, constitutes an breach of the rights of workers for the purpose of Article 31 of the Charter of Fundamental Rights of the European Union. (see paras 154, 156-158, 183)