JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

9 March 2010

Case F-26/09

N

v

European Parliament

(Civil service — Officials — Action for damages — Admissibility — Psychological harassment — Duty to have regard for the welfare of officials — Non-material damage)

Application: brought under Articles 236 EC and 152 EA, in which N seeks an order that the Parliament pay him the sum of EUR 12 000 by way of compensation for the harm suffered, first, on account of the psychological and professional harassment to which he was subject during the period from 16 August 2006 to 1 May 2007 and, secondly, on account of there being no internal administrative investigation by an independent body.

Held: The Parliament is ordered to pay the applicant compensation of EUR 2 000. The remainder of the action is dismissed. The Parliament is to bear its own costs and to pay three quarters of the applicant’s costs. The applicant is to bear one quarter of his own costs.

Summary

1. Officials — Actions — Act adversely affecting an official — Concept — Failure to take a measure required by the Staff Regulations — Failure of the institution to assist its officials — Not included — Exception

(Staff Regulations, Arts 24, 90 and 91)

2. Officials — Psychological harassment — Definition — Conduct aimed at discrediting the person concerned or at impairing his working conditions — Requirement that the conduct be repetitive in character

(Staff Regulations, Art. 12a(3))

3. Officials — Psychological harassment — Definition — Staff report containing negative comments, but not offensive to the official — Not included

(Staff Regulations, Art. 12a(3))

4. Officials — Actions — Time-limits — Claim for compensation addressed to an institution — Duty to act within a reasonable time

(Staff Regulations, Art. 90)

5. Officials — Reports procedure — Staff report — Failure to fix objectives

6. Officials — Actions — Action for damages — Annulment of contested measure not providing adequate compensation for non-material damage

(Staff Regulations, Art. 91)

1. It is, in principle, for an official who considers himself able to rely on Article 24 of the Staff Regulations to request assistance from the institution to which he belongs. Only certain exceptional circumstances may oblige the institution to provide specific assistance not in response to a request from the official concerned but on its own initiative. Where there are no such circumstances, the institution’s failure to assist its officials and other staff on its own initiative does not constitute an act adversely affecting them. In that respect, where an official seeks compensation for harm resulting from an institution’s failure to fulfil its duty to provide assistance, the admissibility of the claim for compensation depends on whether or not there had been a decision refusing a request for assistance at the time when that claim was brought.

A letter by which an official submitted a claim for compensation to the appointing authority based on psychological harassment and failure to fulfil the duty to have regard for the welfare of officials cannot be interpreted as a request for assistance under Article 24 of the Staff Regulations. A complaint seeking compensation for harm resulting from a breach of the obligation to provide assistance also cannot be regarded as a request for assistance.

(see paras 47-49)

See:

229/84 Sommerlatte v Commission [1986] ECR 1805, para. 20

T-90/07 P and T-99/07 P Belgium and Commission v Genette [2008] ECR II-3859, paras 101 to 103

F-91/05 Frankin and Others v Commission [2006] ECR-SC I-A-1-25 and II-A-1-83, para. 24

2. Article 12a(3) of the Staff Regulations defines psychological harassment as ‘improper conduct’ which requires, in order to be established, that two cumulative conditions be satisfied. The first condition relates to the existence of physical behaviour, spoken or written language, gestures or other acts which take place ‘over a period’ and are ‘repetitive or systematic’ (the assumption being that psychological harassment must be understood as a process which necessarily takes place over time and that there is repeated or continuous reprehensible conduct) and which are ‘intentional’. The second condition, separated from the first by the conjunction ‘and’, requires that such physical behaviour, spoken or written language, gestures or other acts have the effect of undermining the personality, dignity or physical or psychological integrity of any person. By virtue of the fact that the adjective ‘intentional’ applies to the first condition, and not to the second, it is possible to draw a twofold conclusion. Firstly, the physical behaviour, spoken or written language, gestures or other acts referred to by Article 12a(3) of the Staff Regulations must be intentional in character, which excludes from the scope of that provision reprehensible conduct which arises accidentally. Secondly, it is not, on the other hand, a requirement that such physical behaviour, spoken or written language, gestures or other acts were committed with the intention of undermining the personality, dignity or physical or psychological integrity of a person. In other words, there can be psychological harassment within the meaning of Article 12a(3) of the Staff Regulations without the harasser’s having intended, by his reprehensible conduct, to discredit the victim or deliberately impair the latter’s working conditions. It is sufficient that such reprehensible conduct, provided that it was committed intentionally, led objectively to such consequences.

(see para. 72)

See:

F-52/05 Q v Commission [2008] ECR-SC I-A-1-409 and II-A-1-2235, para. 135, on appeal before the General Court of the European Union, Case T-80/09 P

3. Where the Civil Service Tribunal has annulled an official’s staff report on the ground, inter alia, that the administration had assessed the official concerned without first having set him objectives, that unlawful act, however regrettable, may not in itself be regarded as an expression of psychological harassment. Likewise, the fact that the staff report contains negative comments about the official cannot be classified as psychological harassment where those comments remain within the limits of the assessor’s wide discretion, and in particular do not cross the line into offensive or hurtful criticism of the actual person of the official in question.

(see para. 86)

4. In so far as an official has contested the lawfulness of his staff report within the time-limit for bringing legal proceedings, and provided that his claim for damages was brought within a reasonable period from the time when he became aware of that report, he may submit, in a separate document, a claim for compensation for the harm allegedly caused by that act.

(see para. 96)

See:

T-78/96 and T-170/96 W v Commission [1998] ECR-SC I-A-239 and II-745, para. 159; T-324/02 McAuley v Council [2003] ECR-SC I-A-337 and II-1657, paras 92 and 96; T-503/04 Pessoa e Costa v Commission [2006] ECR-SC I-A-2-237 and II-A-2-139, paras 58 and 59

F-125/05 Tsarnavas v Commission [2007] ECR-SC I-A-1-43 and II-A-1-231, paras 69 to 71

5. A reporting officer who, in order to report on an official, fails to take into consideration the fact that the official was not set any objectives in advance for the appraisal period commits a manifest error of assessment and breaches his duty to have regard for the welfare of officials.

(see para. 95)

See:

F-71/08 N v Parliament [2009] ECR-SC I-A-1-429 and II-A-1-2319

6. There are certain exceptions to the rule that the annulment of an act of the administration which has been challenged by an official in itself constitutes appropriate and, in principle, sufficient reparation for any non-material harm suffered. Thus, the annulment of an unlawful act of the administration may not constitute full reparation for the non-material harm suffered if that act contains an expressly negative assessment of the applicant’s abilities which is capable of offending him, if the unlawful act committed is particularly serious or if the annulment of the act has no practical effect.

(see paras 101-103, 105, 107)

See:

C-343/87 Culin v Commission [1990] ECR I-225, paras 25 to 29

T-60/94 Pierrat v Court of Justice [1995] ECR-SC I-A-23 and II-77, para. 62; T-197/98 Rudolf v Commission [2000] ECR-SC I-A-55 and II-241, para. 98; T-328/01 Robinson v Parliament [2004] ECR-SC I-A-5 and II-23, para. 79; T-16/03 Ferrer de Moncada v Commission [2004] ECR-SC I-A-261 and II-1163, para. 68; T-155/03, T-157/03 and T-331/03 Cwik v Commission [2005] ECR-SC I-A-411 and II-1865, paras 205 and 206

F-42/06 Sundholm v Commission [2007] ECR-SC I-A-1-437 and II-A-1-2499, para. 44; F-46/07 Tzirani v Commission [2008] ECR-SC I-A-1-323 and II-A-1-1773, para. 223; F-27/08 Simões Dos Santos v OHIM [2009] ECR-SC I-A-1-113 and II-A-1-613, paras 142 and 143, on appeal before the General Court of the European Union, Case T-260/09 P; F-99/07 and F-45/08 Bernard v Europol [2009] ECR-SC I-A-1-233 and II-A-1-1267, para. 106