JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Third Chamber)

12 December 2012

Case F‑43/10

Maria Concetta Cerafogli

v

European Central Bank (ECB)

(Civil service — Staff of the ECB — Complaint of psychological harassment — Administrative inquiry — Access to the file relating to the inquiry — Report on the inquiry — Manifest error of assessment)

Application: Action under Article 36.2 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank, annexed to the EU Treaty and the FEU Treaty, whereby Ms Cerafogli seeks, in essence, annulment of the decision of the Executive Board of the European Central Bank (ECB) of 17 November 2009 concluding the internal administrative inquiry opened following her complaint of discrimination (‘the contested decision’).

Held: The action is dismissed. The applicant is to bear her own costs and is ordered to pay the costs incurred by the ECB.

Summary

1. Actions brought by officials — Staff of the European Central Bank — Purpose — Injunction to the administration — Determination — Inadmissibility

(Conditions of Employment of the Staff of the European Central Bank, Art. 42)

2. Actions brought by officials — Staff of the European Central Bank — Special appeal — Formal conditions — Sufficiently precise nature — Account of certain complaints in annexes communicated after the prescribed period — Inadmissibility

(Staff Regulations, Art. 90(2); Conditions of Employment of the Staff of the European Central Bank, Art. 41; European Central Bank Staff Rules, Art. 8.1.6)

3. Actions brought by officials — Staff of the European Central Bank — Special appeal — Correspondence between the special appeal and the application — Same subject-matter and legal basis — Alteration of the cause of action — Inadmissibility

(Staff Regulations, Art. 91; Conditions of Employment of the Staff of the European Central Bank, Art. 41)

4. Judicial proceedings — Res judicata — Scope — Inadmissibility of a second appeal — Conditions — Identity of subject-matter — Challenge of an act essentially identical to that challenged in the first appeal, but based on different pleas of fact and of law — No res judicata

5. Officials — Staff of the European Central Bank — Rights and obligations — Internal inquiry into alleged psychological harassment — Complainant’s right to be heard and right of access to the inquiry file — Limits

(Regulation No 45/2001 of the European Parliament and of the Council, Art. 20)

6. Actions brought by officials — Pleas in law — Plea alleging breach of the right to be heard — Finding made by the Tribunal of its own motion

7. Officials — Decision adversely affecting an official — Obligation to state reasons — Decision taken in a context known to the addressee — Taking into account of the legal context

(Staff Regulations, Art. 25)

8. European Central Bank — Executive Board — Meetings — Time-limit for distribution to members of documents relating to the agenda — Non-compliance — Irregularity not such as to entail annulment of a decision of the Executive Board — Burden of proof

(Rules of Procedure of the Executive Board of the European Central Bank, Art. 3(1))

9. Actions brought by officials — Pleas in law — Manifest error of assessment — Concept — Burden of proof

10. Officials — Psychological harassment — Concept — Colleague having a negative opinion of an official and informing the management of complaints relating to the quality of his performance and conduct — Not included — Requirement of objectivity of the perception of the alleged victim

(Staff Regulations, Art. 12a)

11. Judicial proceedings — Costs — Taxation — Recoverable costs — Concept — Fees payable to an official’s lawyer for services provided during the pre-contentious stage — Not included

(Rules of Procedure of the Civil Service Tribunal, Arts 86 and 91)

1. The Courts of the European Union may not issue injunctions to the administration or make rulings in the abstract in the context of a review of legality based on Article 42 of the Conditions of Employment of the Staff of the European Central Bank.

(see para. 43)

See:

15 December 2010, F‑66/09 Saracco v ECB, para. 39

2. The pre-contentious procedure established by Article 41 of the Conditions of Employment of the Staff of the European Central Bank and by Article 8.1.6 of the Rules applicable to the Staff of the European Central Bank is informal in character, like the complaints procedure set up by Article 90(2) of the Staff Regulations of Officials.

Consequently, the special appeal under Article 41 of the Conditions of Employment, together with Article 8.1.6 of the Staff Rules, does not have to observe fixed procedures in order to be admissible and the Bank is required to examine it with an open mind. In order to be admissible, it is sufficient for the appeal to be sufficiently specific to allow the Bank to understand the pleas in law and arguments which the person concerned has formulated against the contested decision.

In such circumstances, the late communication of an annex may not automatically be considered to be a breach of the principle that time-limits are a matter of public policy if the special appeal itself was lodged within the time-limit prescribed.

However, in the particular context where annexes communicated after the expiry of the prescribed time-limit are not merely probative but, rather, set out in detail the applicant’s submissions, and where they must be considered to be an integral part of his special appeal, the late sending of those annexes constitutes a breach of the time-limit laid down for the lodging of a special appeal.

Furthermore, although the pre-contentious procedure is informal in nature, it is a step towards amicable settlement with which the applicant’s conduct in obliging the administration to seek, in the body of her special appeal and in voluminous annexes, the threads of her various arguments is incompatible, given that she had a reasonable period of two months to lodge that appeal.

(see paras 50-52, 54-56)

See:

22 June 1990, T‑32/89 and T‑39/99 Marcopoulos v Court of Justice, para. 28; 7 March 1996, T‑146/94 Williams v Court of Auditors, para. 48; 13 January 1998, T‑176/96 Volger v Parliament, para. 65

1 July 2010, F‑45/07 Mandt v Parliament, paras 111 and 113

3. The rule requiring correspondence between the special appeal and the application is to be understood as meaning that, subject to pleas of illegality and pleas raising an issue of public policy, the cause of action of the dispute will normally be altered, and the action therefore inadmissible on the ground that it fails to observe the correspondence rule, only where the applicant, who criticises in his special appeal only the formal validity of the act adversely affecting him, including in its procedural aspects, raises substantive pleas in the originating application, or in the opposite case where the applicant, after having disputed in his special appeal only the substantive legality of the act adversely affecting him, submits an application containing pleas relating to the formal validity of that act, including in its procedural aspects.

(see para. 61)

See:

Mandt v Parliament, paras 110, 119 and 120; 29 September 2011, F‑72/10 da Silve Tenreiro v Commission, para. 59, under appeal before the General Court of the European Union, Case T‑643/11 P

4. In order to ensure the stability of the law and of legal relations and the sound administration of justice as well, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time-limits provided for in that connection can no longer be called into question.

In that regard, an action is inadmissible by reason of the status of res judicata of an earlier judgment which disposed of an action which was between the same parties, had the same purpose and was based on the same cause of action. The act whose annulment is sought is an essential element in the definition of the purpose of an action, but, where several actions are brought against distinct decisions which the administration has formally adopted, it cannot be inferred from that circumstance alone that the purpose of those cases is not the same, where those distinct decisions are essentially identical in content and are based on the same grounds.

Last, although the arguments raised in support of an action may coincide to a certain extent with those put forward in a previous action, the second action is not presented as a repetition of the first but as a new dispute, in that it relies also on other factual and legal submissions.

(see paras 68-69)

See:

19 September 1985, 172/83 and 226/83 Hoogovens Groep v Commission, para. 9; 30 September 2003, C‑224/01 Köbler, para. 38

5 June 1996, T‑162/94 NMB France and Others v Commission, para. 37; 12 December 1996, T‑177/94 and T‑377/94 Altmann and Others v Commission, para. 52

25 June 2010, T‑66/01 Imperial Chemical Industries v Commission, paras 197, 207 and 208

5. Since an inquiry procedure initiated following a request for assistance from an official with a complaint of psychological harassment cannot be compared to an inquiry procedure opened against that official, the person concerned cannot rely on the institution’s obligation to observe the rights of the defence which constitutes a general principle of EU law in all procedures initiated against a person which are liable to culminate in a measure adversely affecting that person. The fact that a decision constitutes, from a procedural point of view, an act adversely affecting the person concerned does not mean that it can be concluded automatically, without regard to the nature of the procedure brought against that person, that the authority was consequently under an obligation to give that person a proper hearing. When account is taken of the principles underlying the legislation, the administrative practice and the case-law of the European Union in the areas of competition, State aid and concentrations of undertakings, it is apparent that a scale has been established of interested third parties to determine the extent of their right to be heard, according to the degree of the harm liable to be done to their interests. None the less, in the absence of any provision and any circumstances calling for the application of the rights of the defence, the person concerned by an administrative procedure must be enabled, during that procedure, to take a position and to make known his views effectively on the data concerning him, data which he is best placed to provide and which it is not established that the authority can otherwise obtain.

As regards an internal administrative inquiry relating to alleged psychological harassment initiated following a complaint by a member of the staff of the European Central Bank, even if the inquiry was not opened with regard to the complainant, the latter can rely, by virtue of the principle of sound administration, on the right to be heard on the facts concerning her, in so far as a decision rejecting such a complaint is liable to entail serious consequences, as psychological harassment can have extremely destructive effects on the health of the victim and any recognition by the administration of the existence of psychological harassment is, in itself, liable to have a beneficial effect in the therapeutic process of recovery of the harassed person. However, the procedural right on which a complainant can rely and which is distinct from the rights of the defence is not as extensive as the latter rights. It is sufficient, in that regard, that she was given a sufficient opportunity to explain her point of view and to explain, where appropriate, why the conclusion envisaged in the draft inquiry report could not be justified. Moreover, the procedural right which the complainant has is not absolute. In the context of a factual inquiry into psychological harassment, provided that the inquiry report is full and there is nothing in the file to indicate that it does not reproduce the substance of the testimony given, it is not unreasonable, unless there are special circumstances, to seek to protect witnesses by guaranteeing their anonymity and the confidentiality of any information likely to identify them, in order, in the interests of the complainants, to enable neutral and objective inquiries to be held with the unreserved cooperation of members of staff. It does not appear unreasonable, either, to seek to prevent in this way any risk of influence of the witnesses after the event by those incriminated, or even by the complainants. Nor, moreover, is it unreasonable to take the view that the confidentiality of witness statements is necessary in order to protect working relationships which ensure the smooth running of services. It is not proven that, where an inquiry does not bear out their opinion, total transparency on the subject is capable of putting an end to the sense of frustration and mistrust of those convinced that they have been subject to psychological harassment.

Furthermore, the restrictions surrounding the procedural right enjoyed by the complainant are legitimate under Article 20 of Regulation No 45/2001 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data. It should not be forgotten that the testimony given during a factual inquiry into psychological harassment does not concern only the author of the complaint, but also the members of staff called into question and those heard in the course of the investigations. Such a case, where the rights of persons other than the author of the complaint are called into question, differs clearly from cases where applicants seek to have access to facts which concern them exclusively.

(see paras 85, 86, 91-93, 95, 97-98)

See:

21 November 1991, C‑269/90 Technische Universität München, paras 23 to 25; 29 April 2004, C‑111/02 P Parliament v Reynolds, para. 57; 9 November 2006, C‑344/05 P Commission v De Bry, para. 37; 29 June 2010, C‑441/07 P Commission v Alrosa, para. 91

27 November 1997, T‑290/04 Kaysersberg v Commission, paras 108 and 113; 7 June 2006, T‑213/01 and T‑214/01 Österreichische Postsparkasse v Commission, para. 106; 17 October 2006, T‑406/04 Bonnet v Court of Justice, para. 76

30 November 2009, F‑80/08 Wenig v Commission, para. 48; 16 May 2012, F‑42/10 Skareby v Commission, paras 46 and 48

12 May 2010, T‑491/08 P Bui Van v Commission, para. 75

6. As a plea regarding the right to be heard may be raised by the Tribunal of its own motion, the applicant was entitled to raise that principle at the stage of the written procedure.

(see para. 89)

See:

11 September 2008, F‑51/07 Bui Van v Commission, para. 77 and the case-law cited

7. The reasons given for a measure adversely affecting a person are sufficient if it was adopted in circumstances known to that person which enable him to understand the scope of the measure concerning him. Consequently, a statement of reasons in the form of a reference to a report or an opinion which itself states reasons and is communicated may be accepted.

Moreover, the statement of reasons must be assessed according to the context in which the contested measure was taken and, in particular, in the light of all the legal rules governing the matter concerned. Therefore, since the legal context may, in a case of psychological harassment, preclude a complainant from having access to all the witness statements complied during the inquiry, it cannot be considered that the decision concluding the inquiry contains insufficient reasons in that it refers only to the inquiry report, which does not include those witness statements.

(see paras 108, 111-112)

See:

23 November 2010, F‑65/09 Marcuccio v Commission, para. 61

8 June 2011, T‑20/09 P Commission v Marcuccio, paras 67 and 68

8. It is apparent from Article 3(1) of the Rules of Procedure of the Executive Board of the European Central Bank that the documents related to the agenda are, ‘in principle’, to be sent to the Executive Board at least two working days before the meeting of that body. It follows that that time-limit concerns only the period within which those documents must be sent to the members of the Executive Board and not the period for which they must be available to them.

In any event, in order for breaches of the obligations imposed by the Rules of Procedure of the Executive Board to be capable of constituting substantial irregularities of such a kind as to render its decision invalid, the person concerned must also show that in the absence of those irregularities that decision might have been substantively different. Clearly, that condition is not satisfied where the person concerned confines herself to surmising that, as the members of the Executive Board received the final inquiry report on the day of their meeting, they were unable to take proper cognisance of it before deciding on the conclusions to be drawn from it.

(see paras 116-117)

See:

9 March 1999, T‑212/97 Hubert v Commission, para. 53

7 May 2008, F‑36/07 Lebedef v Commission, para. 57; 13 September 2011, F‑68/10 Behnke v Commission, para. 42

9. An error may be said to be manifest only where it may easily be detected in the light of the criteria to which the legislature intended the exercise of decision-making powers to be subject. Consequently, in order to establish that the administration made a manifest error in assessing the facts such as to justify the annulment of a decision, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, a plea alleging a manifest error must be rejected if, in spite of the evidence adduced by the applicant, the contested assessment may still be accepted as true or valid. That is particularly so where the decision at issue is vitiated by errors of assessment which, taken together, are of only minor significance unlikely to have influenced the administration.

(see para. 131)

See:

29 September 2011, F‑80/10 AJ v Commission, paras 34 to 36 and the case-law cited; 28 March 2012, F‑36/11 BD v Commission, para. 83

10. A negative opinion held by an official or other member of staff about a colleague and the fact that that official or staff member passes on to his superiors complaints about the working time that colleague devotes to her job, about her delays in performing tasks and her difficulties in cooperating do not in themselves constitute psychological harassment.

Furthermore, it must be concluded from a reading of Article 12a of the Staff Regulations that, while the perception of the person who claims to be the victim of harassment is an important element, that perception must none the less be objective. Moreover, that person cannot rely on her fragile psychological and physical health to establish that the concept of psychological harassment has been misinterpreted. In those circumstances, the negative remarks of a superior about an official or other member of staff cannot be considered offensive with regard to that official or staff member in the absence of other elements.

(see paras 167, 171, 203)

See:

9 December 2008, F‑52/05 Q v Commission, para. 135, not set aside on that point in the judgment of 12 July 2011 in Case T‑80/09 P Commission v Q; Skareby v Commission, para. 65

11. Lawyers’ fees during the contentious procedure constitute recoverable costs on the terms laid down in Article 86 et seq. of the Rules of Procedure of the Tribunal and must be dealt with in that framework. As regards a lawyer’s fees incurred during the pre-contentious procedure, Article 91 of those rules refers, among recoverable costs, only to costs inherent in proceedings before the Tribunal, to the exclusion of those incurred during the prior stage. Therefore, to regard fees incurred during the pre-contentious procedure as recoverable costs in an action for damages would be inconsistent with the fact that costs incurred during the phase before the judicial proceedings are not recoverable.

(see para. 218)

See:

14 September 2005, T‑140/04 Ehcon v Commission, para. 79

8 November 2011, T‑88/09 Idromacchine and Others v Commission, para. 100, under appeal before the Court of Justice in Case C‑34/12 P