Case T‑218/17

HF

v

European Parliament

(Civil service — Contract staff — Article 24 of the Staff Regulations — Request for assistance — Article 12a of the Staff Regulations — Psychological harassment — Advisory Committee on Harassment and its Prevention at the Workplace — Decision rejecting the request for assistance — Right to be heard — Audi alteram partem rule — Refusal to communicate the opinion of the Advisory Committee and the minutes of witness hearings — Length of the administrative procedure — Reasonable time)

Summary — Judgment of the General Court (First Chamber, Extended Composition), 29 June 2018

Officials — Rights and obligations — Internal inquiry into alleged psychological harassment — Composition of the committee responsible for conducting the inquiry — Lack of full parity between the members appointed by the administration and those appointed by the Staff Committee — Lawfulness — Participation of the Head of the Human Resources Unit of the institution concerned — Lawfulness

Respect for the rights of the defence, within the meaning of Article 48 of the Charter of Fundamental Rights of the European Union, may be invoked only in the context of a procedure that is initiated against a person and is liable to culminate in a measure adversely affecting that person in which the administration upholds inculpatory evidence against him. In that regard, an administrative inquiry procedure carried out following the submission, by an official or other staff member, of a request for assistance within the meaning of Article 24 of the Staff Regulations in relation to the acts of a third party, who is an official or other staff member, allegedly constituting psychological harassment within the meaning of Article 12a of the Staff Regulations, is indeed initiated at the request of the person concerned but cannot be regarded as an inquiry procedure initiated against that official or other staff member. The role of the person who submitted the request for assistance alleging harassment consists essentially in cooperating in the proper conduct of the administrative inquiry in order to establish the facts. Therefore, in the context of a procedure followed by the administration in order to adopt a decision on a request for assistance based on infringement of Article 12a of the Staff Regulations, the person who submitted that request may not invoke the principle of respect for the rights of the defence under Article 48 of the Charter as such, or, in that context, in the form of a breach of the audi alteram partem rule. Nevertheless, the person who submitted the request for assistance, as the presumed victim, must be granted procedural rights that are disparate from, and not as extensive as, the rights of defence enshrined in Article 48 of the Charter and which, ultimately, arise from the right to good administration, as is now provided for by Article 41 of the Charter. Thus, in order for the right to good administration to be observed, the person who submitted the request for assistance must necessarily, in accordance with Article 41(2)(a) of the Charter, be properly heard before the adoption, by the administration, of a decision rejecting the request for assistance. That means the person concerned must be heard in advance in relation to the grounds the administration intends to rely on in support of its decision rejecting the request. (see paras 66-68, 70, 74)

In the context of a procedure followed by the administration in order to adopt a decision on a request for assistance based on infringement of Article 12a of the Staff Regulations, the alleged harasser may not invoke the principle of respect for the rights of the defence under Article 48 of the Charter of Fundamental Rights of the European Union as such, or, in that context, in the form of a breach of the audi alteram partem rule. It is true that the alleged harasser may personally have been called into question in the request for assistance that led to the opening of the administrative inquiry and may, already at that stage, need to defend himself from the accusations against him, which justifies him being heard, possibly on several occasions, in the context of the inquiry. However, it would be only at a later stage in the procedure, if disciplinary proceedings were to be brought against him — in this instance by referring the matter to the Disciplinary Board — that he would enjoy the rights of the defence within the meaning of Article 48 of the Charter and, in particular, the audi alteram partem rule, bearing in mind the fact that the Staff Regulations provide only for a right to be heard with regard to the principle of the opening of disciplinary proceedings and that the proceedings do not become inter partes proceedings until after the matter has been referred to the Disciplinary Board. (see paras 68, 69)

Provided the interests of persons who have been called into question and of persons who have been witnesses in an inquiry regarding alleged psychological harassment are protected, no provision of the Staff Regulations prevents the final investigation report being sent to a third party who has a legitimate interest in knowing details of it, as is the case of the person who submitted the request for assistance, under Article 24 of the Staff Regulations, alleging infringement of Article 12a of the Staff Regulations. Thus, where the administration decides to call for the opinion of an Advisory Committee, to which it entrusts responsibility for conducting an administrative inquiry and, in the decision on the request for assistance, it takes into account the opinion thus issued by that Advisory Committee, that opinion, which is advisory and can be drafted in a non-confidential form respecting the anonymity granted to witnesses, must, in accordance with the right to be heard of the person who submitted the request for assistance, in principle be communicated to the latter, even if the Internal Rules on Harassment do not provide for such communication. (see paras 79, 80)

In principle, in order to ensure effective implementation of the prohibition of all forms of psychological or sexual harassment in the workplace, it is permissible for the administration to provide for the possibility of assuring witnesses who agree to provide their accounts of the facts at issue in an alleged case of harassment that their testimony will remain confidential vis-à-vis both the alleged harasser and the alleged victim, at least in the context of the procedure followed for handling a request for assistance within the meaning of Article 24 of the Staff Regulations. First, given that, in the context of handling a request for assistance, one of the objectives assigned to the administration is to restore tranquillity to the service, awareness of the content of the testimonies, on the part of both the alleged harasser and the alleged victim, might jeopardise that objective by reviving any interpersonal animosity within the service and by deterring any persons who might provide relevant testimony in the future from doing so. Secondly, where an institution receives information provided on a voluntary basis, but accompanied by a request for confidentiality in order to protect the informant’s anonymity, an institution which accepts such information is bound to comply with such a condition. The same may apply where officials or other staff members agree to provide their testimonies in order to enable the administration to shed light on the facts at issue in a request for assistance, but demand in return that their anonymity be ensured vis-à-vis the alleged harasser and/or the alleged victim, bearing in mind that, although their participation is desirable, under the Staff Regulations they are not necessarily required to collaborate in the inquiry by providing their testimonies. Thus, as regards an inquiry concerning alleged harassment, the administration does not infringe the right to be heard, enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, where it refuses to communicate the minutes of witness hearings to the complainant at the pre-litigation stage. (see paras 83-85, 87)

The body responsible for an administrative inquiry concerning alleged harassment, which is required to investigate, in a proportionate manner, the files submitted to it, has broad discretion with regard to the conduct of the inquiry and in particular with regard to assessing the quality and usefulness of any cooperation provided by witnesses. Accordingly, the Advisory Committee is not required to call all the witnesses proposed by the complainant in the context of the inquiry. Furthermore, in that regard, even though it is desirable for them to assist in an inquiry, officials and other staff of an institution, whether active or retired, are not necessarily required under the Staff Regulations to testify before a body such as the Advisory Committee. (see paras 97, 99, 101)

As regards the committee responsible for conducting an inquiry concerning alleged harassment, even if full parity is not provided for between the members appointed by the administration and those appointed by the Staff Committee, there are sufficient guarantees as to the impartiality and objectivity of the opinion that that committee compiles and adopts for the benefit of the administration since, first, the institution’s medical officer is a member of the Advisory Committee, secondly, the fact that the Internal Rules on Harassment of the institution concerned provide that the Advisory Committee is to work with complete autonomy, independence and confidentiality, and, thirdly, the collegial nature of the deliberations. In that regard, the fact that the Chairman of the Advisory Committee is, moreover, the Head of the Human Resources Unit of the Resources Directorate of DG Personnel of the institution concerned, does not mean that he exercises, or may exercise, power over the members of staff and, therefore, over the deliberations of the Advisory Committee and over the content of the testimonies given by witnesses. (see paras 103, 104)