Judgment of the General Court (Seventh Chamber) of 20 October 2021 –

ZU v Commission

(Joined Cases T‑671/18 and T‑140/19)

(Civil service – Officials – Transfer in the interests of the service – Article 12a of the Staff Regulations – Psychological harassment – Article 25 of the Staff Regulations – Obligation to state reasons – Rights of the defence and the right to be heard – Manifest error of assessment – Principle of sound administration and duty to have regard for the welfare of staff – Article 22a of the Staff Regulations – Misuse of powers – Article 24 of the Staff Regulations – Request for assistance – Refusal of the request – 2017 appraisal exercise – Appraisal report – 2018 promotion exercise – Proposed non-promotion – Liability)

1. Officials – Psychological harassment – Concept – Refusal to allow annual leave in order to ensure the proper functioning of the service – Not included (Staff Regulations of Officials, Arts 12a(3) and 57, first para.) (see para. 85)

2. Officials – Psychological harassment – Concept – Negative observations made to an official – Not included – Conditions (Staff Regulations of Officials, Art. 12a(3)) (see paras 112, 113, 148)

3. Officials – Non-active status – Obligation – Scope – Steps taken under Articles 24 and 90 of the Staff Regulations by the official during his or her working time – No obligation on the administration to take into account those steps in order to assess his or her productivity (Staff Regulations of Officials, Arts 7(1), 24, 43 and 90) (see paras 128, 129)

4. Officials – Reports procedure – Existence of differences between an official and his immediate superior – No effect on the latter’s ability to assess the official’s merits (Staff Regulations of Officials, Art. 43) (see para. 207)

5. Officials – Rights and obligations – Freedom of expression – Disclosure of facts giving rise to a presumption of the existence of illegal activity or serious failure to comply with obligations – Protection of the official who communicated such facts – Scope – Whether applicable to vague and unsubstantiated allegations – Not included (Staff Regulations of Officials, Art. 22a(1)) (see paras 266-269)

6. Officials – Assignment – Transfer – Administration’s duty to have regard for the interests of officials – Reconciliation with the interests of the service (Staff Regulations of Officials, Art. 7(1)) (see paras 277, 280)

7. Judicial proceedings – Application initiating proceedings – Determination of the subject matter of the dispute – Presentation of the claim for damages at the stage of the reply – Inadmissibility (Rules of Procedure of the General Court, Arts 76, 84(1) and 86) (see paras 308, 310)

8. Officials – Psychological harassment – Concept – Deterioration in the official’s state of health – Fact not in itself constituting psychological harassment (Staff Regulations of Officials, Art. 12a(3)) (see para. 342)

9. Officials – Reports procedure – Staff report – Discretion of the assessors – Judicial review – Limits – Manifest error of assessment – Burden of proof (Staff Regulations of Officials, Art. 43) (see paras 388, 389)

10. Actions brought by officials – Act adversely affecting an official – Concept – Proposal for non-promotion of the applicant due to the absence of his or her name on a list of officials eligible for promotion – Preparatory act – Not included (Staff Regulations of Officials, Arts 45, 90(2) and 91(1)) (see paras 401, 402, 409-412)

Re:

Applications pursuant to Article 270 TFEU, in Case T‑671/18, first, for annulment of the decision of the Commission of 12 October 2018 to transfer the applicant to the European Anti-Fraud Office (OLAF) in Brussels (Belgium), of the letter of the Commission of 29 October 2018 by which it provisionally confirmed to the applicant that he would be transferred to OLAF as of 1 December 2018 and communicated to him practical information concerning his return to Brussels and of the decision rejecting the complaint lodged against those two decisions and, second, for compensation for the loss allegedly suffered by the applicant as a result, inter alia, of those decisions and, in Case T‑140/19, for annulment of the applicant’s 2017 appraisal report, of the proposal for his non-promotion for 2018, of the rejection of his request for assistance made on 26 January 2018 and of the decisions rejecting the complaints brought against those three decisions.

Operative part

The Court:

1. Dismisses the actions in Joined Cases T‑671/18 and T‑140/19;