JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

26 March 2015

CW

v

European Parliament

‛Civil service — Officials — Action for annulment — Article 12a of the Staff Regulations — Internal Rules for the Advisory Committee on Harassment and its Prevention in the Workplace — Article 24 of the Staff Regulations — Request for assistance — Manifest errors of assessment — None — Role and powers of the Advisory Committee on Harassment and its Prevention in the Workplace — Option for an official to approach the Committee — Action for damages’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which CW seeks in particular, first, annulment of the European Parliament’s decision of 8 April 2013 refusing to grant her request for assistance, submitted because of the psychological harassment to which she feels she has been subjected by her superiors, and, second, an order that the Parliament pay her damages.

Held:

The action is dismissed. The European Parliament is to bear its own costs and is ordered to pay half of the costs incurred by CW. CW is to bear half of her own costs.

Summary

Officials — Obligation of administration to provide assistance — Implementation in relation to psychological harassment — Administration’s discretion — Decision to reject a request for assistance without an administrative inquiry — Taking into account of information supplied by the person requesting assistance and information known to the administration — Lawfulness

Officials — Obligation of administration to provide assistance — Implementation in relation to psychological harassment — Obligation for the official to refer the matter to the Advisory Committee on Harassment before submitting a request for assistance — None

Officials — Psychological harassment — Definition — Instructions to the official to apologise to his head of unit in an e-mail addressed to the entire unit — Not included

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

In view of the evolving nature of the pre-litigation procedure, the statement of reasons contained in the decision rejecting a complaint must also be taken into account in the review of legality of the original act adversely affecting an official, since that statement of reasons is deemed to cover that act also. (see para. 33) See: Judgment in Mocová v Commission, F‑41/11, EU:F:2012:82, para. 21

With regard to the measures to be adopted in a situation covered by Article 24 of the Staff Regulations, an institution cannot take disciplinary action against officials mentioned in a complaint of harassment (whether or not they are the superiors of the purported victim) or decide to reassign those officials unless the preliminary measures ordered clearly establish that the officials concerned have engaged in conduct detrimental to the proper functioning of the service or to the dignity and reputation of another official. (see para. 40) See: Judgment in Katsoufros v Court of Justice, 55/88, EU:C:1989:409, para. 16 Judgments in Dimitriadis v Court of Auditors, T‑294/94, EU:T:1996:24, para. 39, and Schmit v Commission, T‑144/03, EU:T:2005:158, para. 108

Psychological harassment is defined as ‘improper conduct’ in the form of, first, physical behaviour, spoken or written language, gestures or other acts which take place ‘over a period’ and are ‘repetitive or systematic’, which suggests that psychological harassment must be a process that occurs over time and presumes the existence of repetitive or continual conduct which is ‘intentional’ as opposed to ‘accidental’. Secondly, in order to fall under that definition, such physical behaviour, spoken or written language, gestures or other acts must have the effect of undermining the personality, dignity or physical or psychological integrity of a person. Accordingly, it is not necessary to establish that the physical behaviour, spoken or written language, gestures or other acts in question 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 without a demonstration that there has been any intention on the part of the harasser, by his conduct, to discredit the victim or deliberately impair the latter’s working conditions. It is sufficient that such improper conduct, provided that it was committed intentionally, led objectively to such consequences. (see paras 41, 42) See: Judgments in Cantisani v Commission, F‑71/10, EU:F:2012:71, para. 89, and CQ v Parliament, F‑12/13, EU:F:2014:214, paras 76 and 77 and the case-law cited therein

The fact that a superior supports an application by one of his subordinates to attend a language training course and that application is subsequently rejected by the competent department does not constitute psychological harassment. It is for the department in charge of vocational training — which inspects the application files in order to select, taking budgetary constraints into account, persons meeting the conditions established by the institution with regard to the interest of the service — to examine applications to participate in language training courses which are funded by the institution and are held outside of the workplace partly or wholly during working hours. Even though it may reasonably be expected that a Head of Unit would have some general knowledge of the rules applicable to the subject, that Head of Unit cannot be required to determine or to predict whether a request for training from one of his subordinates will satisfy the eligibility requirements. (see paras 51, 52)

A decision by a Head of Unit to remove a task from one of his subordinates may be announced at a Unit meeting without that announcement constituting, in itself, conduct falling to be described as psychological harassment. Likewise, a decision by the management temporarily to relieve an official of some of his secondary professional tasks cannot constitute, as such, evidence of psychological harassment and can in no way be described as a misuse of power. (see paras 64, 105) See: Judgment in K v Parliament, F‑15/07, EU:F:2008:158, para. 38

Accidental words or gestures, even if they may seem inappropriate, are excluded from the scope of Article 12a(3) of the Staff Regulations. Accordingly, a meeting held between an official and his Director in the presence of his Head of Unit could easily be perceived by an impartial and reasonable observer as a final attempt by the management to put an end to a difficult situation, as is the case where there has been a flow of e-mails from the official concerned, particularly where they were sent for the most part at times when staff were supposed to be working, or where repeated disputes are disrupting the operation of a unit. As regards the official’s assertion that the Director told him that a Head of Unit is always right and must be listened to, in addition to the need to provide evidence to illustrate that such a statement was in fact made, as well as the tone or nature thereof, it is, in any event, an essential element of the functioning of any administration that the management can make decisions on issues such as those relating to the adoption of minutes or the methods of communication to be favoured between the members of an administrative unit, particularly in cases of clear misconduct spilling over from personal conflicts. Moreover, even if the tone of some e-mails sent by the management to the official concerned may appear rather harsh, the exasperated reactions of his superiors may, in certain circumstances, in any event be forgivable in view of the official’s conduct. Furthermore, the fact that a Head of Unit sent an official an e-mail which was perceived as sarcastic by that official does not cross the line into unreasonable criticism, especially where the official concerned has displayed aggressiveness and a propensity to argue concerning a dispute with his superior. (see paras 66, 72, 73, 94, 97) See: Judgment in Fonzi v Commission, 27/64 and 30/64, EU:C:1965:73, p. 640 Judgments in CW v Parliament, F‑48/13, EU:F:2014:186, para. 123, and CQ v Parliament, EU:F:2014:214, para. 95

A Head of Unit’s decision to find out the content of the information gathered by the Unit representative at meetings of a working party before that information was disseminated to the whole unit does not constitute psychological harassment. Such a decision falls within the powers of a Head of Unit and is completely understandable in view of the risk that the dissemination of incorrect information could impede the proper functioning of the Unit, a risk which would be increased in a situation involving a newly-appointed person new to the role. (see para. 77) See: Judgment in CQ v Parliament, EU:F:2014:214, paras 102 to 104

As regards the facts behind a complaint of psychological harassment, where the official concerned has groundlessly and publicly called in question the authority and the credibility of his immediate superior — the Head of Unit — at a Unit meeting and, in an e-mail to the Head of Unit with all members of the Unit in copy, remonstrated further with the Head of Unit, the Director’s order for the official to apologise to the same public cannot be regarded as exceeding the bounds of his discretion in the management of his departments. In particular, in view of that groundless challenging of the Head of Unit within the Unit and before his superior (the Director), the Director is entitled to demand, in a similar way, that the apologies which the official had already made to the Head of Unit also be sent to the members of the Unit. In addition, in view of the fact that the Director, while providing a suggestion as to the content of the email of apology, left the precise wording of that apology up to the official, an impartial and reasonable observer, of normal sensitivity and in the same situation, would not consider the step taken by the Director to be excessive or open to criticism and would perceive it, not as conduct falling under the definition of psychological harassment, but more as an attempt to refocus a staff member whose conduct was such as to jeopardise the smooth functioning of the department. (see paras 91, 93) See: Judgment in Nanopoulos v Commission, F‑30/08, EU:F:2010:43, para. 247

The fact that a colleague who has in the past made statements depicting the conduct of the official concerned in a negative light is a member of a selection board responsible for assessing his language skills cannot be regarded as psychological harassment within the meaning of Article 12a of the Staff Regulations. (see para. 114)

Having examined the events put forward in isolation and found that they cannot be regarded as psychological harassment within the meaning of Article 12a of the Staff Regulations, they should now be examined in the aggregate. In the circumstances of the case, taken as a whole, the events put forward certainly reveal a conflictual relationship in a difficult administrative context, but are not evidence of acts of an abusive or deliberate nature, the documented statements and behaviour showing at most a clumsy management of the conflictual situation by the applicant’s superiors, and not a deliberate intention to act abusively toward him. In particular, in view of the purported victim’s own conduct — stubborn, intransigent and, on occasion, bordering on insubordinate — he cannot claim not to understand the reasons for the decisions adopted by his superiors. In that regard, the concepts of psychological harassment and the duty to provide assistance described in Articles 12a and 24 of the Staff Regulations cannot be extended to allow the supposed victim systematically to challenge every hierarchical authority or to consider himself free from the obligations explicitly laid down in the Staff Regulations, such as those relating to arrangements for leave or the obligation to cooperate sincerely with his superiors. It should also be stated that the duty of loyalty referred to in Article 11 of the Staff Regulations and the duty of every official, pursuant to Article 12 of those regulations, to refrain from any action or behaviour which might reflect adversely upon his position mean that every subordinate has a duty to refrain from groundlessly challenging the authority of his superiors and, in any event, to demonstrate moderation and prudence when sending e-mails challenging that authority and when choosing the persons to whom such e-mails are to be sent. In a situation where the supposed victim has in no way been relieved of his main duties, depriving him of certain secondary tasks — albeit ones which he enjoys — does not have the objective effect, in the wider context of events illustrating the official’s inappropriate conduct towards his superiors, of undermining his personality, dignity or physical or psychological integrity. (see paras 117, 118, 122, 123) See: Judgment in Lo Giudice v Commission, T‑154/05, EU:T:2007:322, paras 104 and 105 Judgments in Tzirani v Commission, F‑46/11, EU:F:2013:115, para. 97, and CQ v Parliament, EU:F:2014:214, para. 128

In contrast to the wording and purpose of Article 12a of the Staff Regulations, Article 24 of the Staff Regulations does not specifically mention preventing or combating harassment but, more generally, allows any person covered by the Staff Regulations to request the intervention of the appointing authority in order that it may adopt any measure to assist the official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he is subjected by reason of his position or duties. Accordingly, the submission of a request for assistance pursuant to Article 24 of the Staff Regulations does not require the person concerned, even where the request for assistance relates to a case of harassment, to approach the Advisory Committee on Harassment created on the basis of Article 12a of the Staff Regulations before being able to refer the matter to the appointing authority, which alone has the power to deal with a request for assistance. (see paras 137, 138) See: Judgment in Faita v EESC, F‑92/11, EU:F:2013:130, para. 91