Judgment of the General Court (Fifth Chamber) of 30 January 2020 –

PV v Commission

(Joined Cases T‑786/16 and T‑224/18)

(Civil service — Civil servants — Psychological harassment — Bundle of decisions adopted by the Commission adversely affecting the applicant — Applications for assistance — Disciplinary procedure — Revocation — Withdrawal of the revocation — New disciplinary procedure — Fresh revocation)

1. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — None — Inadmissibility (Statute of the Court of Justice, Art. 21, first para., and Art. 53, first para.; Rules of Procedure of the General Court, Art. 76(d) and (e)) (see paras 77-79)

2. Actions brought by officials — Interest in bringing proceedings — Action directed against a measure which has been repealed — Respective effects of repeal and withdrawal (Staff Regulations of Officials, Arts 90 and 91) (see paras 80, 82)

3. Actions brought by officials — Action against a decision rejecting a complaint — Disappearance of the act forming the subject matter of the complaint — Effect — Decision lacking independent content — Inadmissibility (Staff Regulations of Officials, Arts 90 and 91) (see paras 83-85)

4. Actions brought by officials — Act adversely affecting an official — Concept — Preparatory act — Initiation of disciplinary proceedings — Inadmissibility (Staff Regulations of Officials, Arts 90(2) and 91) (see paras 87-89)

5. Actions brought by officials — Prior administrative complaint — Time limits — Mandatory — To be considered of the Court’s own motion (Staff Regulations of Officials, Arts 90 and 91) (see para. 102)

6. Acts of the institutions — Presumption of validity — Non-existent act — Concept (Art. 288 TFEU) (see paras 108-111)

7. Actions brought by officials — Prior administrative complaint — Absence — Inadmissibility (Staff Regulations of Officials, Art. 90(2) and Art. 91(1) and (2)) (see para. 118)

8. Officials — Actions — Prior administrative complaint — Same subject matter and legal basis — Submissions and arguments not made in the complaint but closely related to it — Admissibility (Staff Regulations of Officials, Arts 90 and 91) (see paras 124, 125, 237)

9. Officials — Psychological harassment — Definition — Conduct intended to discredit the person concerned or to impair his working conditions or having that effect — Requirement that conduct must be repetitive — Requirement that conduct must be intentional — Scope — No requirement that harasser should have malicious intent (Staff Regulations of Officials, Art. 12a(3)) (see paras 141-146)

10. Officials — Psychological harassment — Burden of proof — Obligation for the official concerned to provide prima facie evidence (Staff Regulations of Officials, Art. 12a(3)) (see para. 148)

11. Actions brought by officials — Subject matter — Claim seeking a finding of psychological harassment — Action brought without the pre-litigation procedure laid down by the Staff Regulations having been followed — Inadmissibility (Staff Regulations of Officials, Arts 90 and 91) (see paras 154, 155)

12. Officials — Psychological harassment — Concept — Examination of a number of events taken as a whole (Staff Regulations of Officials, Art. 11, Art. 12a(3) and Art. 24) (see paras 156, 157)

13. Officials — Rights and obligations — General duty of independence and integrity — Scope — Obligation to adopt an attitude guided exclusively by the interests of the European Union — Obligation to inform the appointing authority of any risk that the official’s independence might be impaired — Objective nature of the obligations (Staff Regulations of Officials, Art. 11a(1) and Art. 14) (see paras 189, 190, 192)

14. Officials — Administration’s duty to have regard for the interests of officials — Taking into consideration of official’s interests — Limits (Staff Regulations of Officials, Art. 24) (see paras 199-201)

15. Officials — Sick leave — Evidence of illness — Production of a medical certificate — Presumption that absence is justified — Examination by a medical officer — Conclusions contradicting the medical certificate — Effects (Staff Regulations of Officials, Arts 59 and 60) (see paras 214-217)

16. Officials — Non-contractual liability of the institutions — Conditions — Unlawfulness — Damage — Causal link — Cumulative conditions (Art. 340, second para., TFEU) (see para. 254)

Re:

Action under Article 270 TFEU seeking, in the first place, a declaration that the applicant was the victim of psychological harassment; in the second place, annulment, primarily, in Case T‑786/16, of (i) the applicant’s 2014, 2015 and 2016 appraisal reports; (ii) the decisions of the Director-General of the Commission’s Directorate General (DG) for Interpretation of 31 May and 5 July 2016 on the deductions from the applicant’s salary, and the decision of 28 November 2016 rejecting the claims brought against those decisions; (iii) the pre-information letter from the Paymaster’s Office (PMO) of 21 June 2016 informing the applicant that he was liable for a debt amounting to EUR 33 593.88, the PMO’s decision of 11 July 2016 suspending the applicant’s salary as of 1 July 2016, and the decision of 17 January 2017 rejecting the claim brought against those decisions; (iv) the revocation decision of 26 July 2016; (v) the note from the Director-General of the Commission’s DG Interpretation of 31 July 2016 announcing the intention to regard the applicant’s absences for the period from 2 June to 31 July 2016 as unjustified and to make the corresponding deductions from his salary; (vi) the PMO’s pre-information letter of 21 September 2016 informing the applicant that he was liable for an amalgamated debt amounting to EUR 42 704.74, and the decision of 17 January 2017 rejecting the claim brought against that letter; (vii) the debit note of 20 July 2017 and the decision of 29 November 2017 rejecting the claim brought against that note; and (viii) disciplinary procedure CMS 13/087; and, in Case T‑224/18, (i) the decision to open disciplinary procedure CMS 17/025; (ii) the emails inviting the applicant to take part in the appraisal exercises for 2016 and 2017; (iii) the decision of 24 July 2017 to reinstate the applicant following the withdrawal of the revocation decision concerning him, together with the decision of 15 January 2018 rejecting the claim brought against that decision; (iv) the PMO’s decision of 12 September 2017 on the set off of the debit note of 20 July 2017 against the applicant’s unpaid salary for the period from 1 August 2016 to 30 September 2017, the decision rejecting the claim brought against that decision, and the decision to suspend the applicant’s salary from 1 October 2017; and, in the alternative, annulment, in Case T‑786/16, of (i) the medical opinions of 27 June and 10 October 2014; (ii) the decisions of 23 October 2014, 20 January, 20 March and 30 July 2015 and of 15 March and 18 May 2016 refusing applications for assistance; (iii) the decisions of 9 February, 30 March, 5 May, 24 June, 1 October and 12 November 2015, 15 January, 22 April, 31 May, 5 July, 11 July and 15 September 2016 on salary deductions and the decisions rejecting the claims brought against those decisions; (iv) the debt letters of 10 March, 11 May, 10 June, 11 August, 13 November and 9 December 2015 and of 18 July 2016; (v) the decisions of 12 March, 11 August and 13 October 2015 and of 7 June and 21 September 2016 rejecting the claims brought against the appraisal procedures; (vi) the medical notes of the Commission’s examining doctor noting the applicant’s non-attendance for a medical examination on 16 and 18 July, 8 August, 4 September and 4 December 2014, 4 February, 13 April, 4 June, 11 August, 14 October and 4 December 2015, 5 February, 22 March, 18 April, 3 June, 30 June and 25 July 2016; and (vii) the decision rejecting the claim of 14 July 2016 concerning an unjustified absence on 16 and 17 March 2016; and, in the third place, in Cases T‑786/16 and T‑224/18, compensation in respect of material and non-material damage allegedly suffered by the applicant.

Operative part

The Court:

1. Dismisses the actions;