Case T‑83/18

CH

v

European Parliament

(Civil service — Accredited parliamentary assistants — Article 24 of the Staff Regulations — Request for assistance — Article 12a of the Staff Regulations — Psychological harassment — Advisory Committee dealing with harassment complaints between Accredited Parliamentary Assistants and Members of the European Parliament and its prevention at the workplace — Decision rejecting the request for assistance — Right to be heard — Audi alteram partem rule — Refusal to disclose the opinion of the Advisory Committee and the minutes of the hearing of witnesses — Refusal of the defendant institution to comply with a measure of inquiry of the General Court)

Summary — Judgment of the General Court (First Chamber), 13 December 2018

Actions brought by officials — Actions for damages — Annulment of the illegal act in dispute — Non-material harm capable of being separated from the illegality and incapable of being fully compensated for by the annulment

Judicial proceedings — Measures of organisation of procedure — Request for production of documents — Request for information contained in an investigation report following a request for assistance relating to alleged psychological harassment — Confidentiality of documents — Assessment by the EU judicature

Officials — Rights and obligations — Internal inquiry into alleged psychological harassment — Obligation to transmit to the person making the request the minutes of the hearing of witnesses heard by the committee responsible for conducting the inquiry — None

Officials — Rights and obligations — Internal inquiry into alleged psychological harassment — Obligation to forward to the person making the request the opinion of the committee responsible for conducting the inquiry — Obligation to hear the person making the request — Scope

Officials — Obligation of administration to provide assistance — Implementation in the case of psychological harassment — Bringing of a request for assistance — Opening of an administrative inquiry — Need to conduct the inquiry until its conclusion

Officials — Obligation of administration to provide assistance — Scope — Duty of the administration to examine requests for assistance in matters of psychological harassment and to inform the applicant of the follow up to his or her request — Condition

See the text of the decision. (see paras 64-67)

In the case of an administrative inquiry opened by the administration following the bringing of an application for assistance containing an allegation of psychological harassment, the point of such an inquiry is to confirm or negate the existence of psychological harassment within the meaning of Article 12a of the Staff Regulations. Accordingly, the administration may not prejudge the outcome of the inquiry and in particular may not adopt a position, even impliedly, as to the reality of the alleged harassment before having received the results of the administrative inquiry. In other words, it is inherent in the fact that an administrative inquiry has been opened that the administration must not adopt a position prematurely, essentially on the basis of the unilateral description of the facts provided in the request for assistance, as it must, on the contrary, reserve its position until the conclusion of that inquiry, which must be undertaken as an adversarial procedure and with the participation of the alleged harasser. Conducting the administrative inquiry through to completion is also important because, should the authority empowered to conclude contracts of employment find that there has been psychological harassment upon completion of the administrative inquiry, which may have been conducted with the assistance of a separate department of that authority, that in itself is likely to have a beneficial effect in the therapeutic process of recovery of an official or other member of staff who has been harassed and may also be used by the victim for the purposes of a national court action, in respect of which the duty of that authority to provide assistance under Article 24 of the Staff Regulations will apply and will not expire at the end of the servant’s period of employment. Equally, carrying an administrative inquiry through to completion may make it possible to disprove the allegations made by the purported victim, thereby making it possible to repair the damage which such an accusation, should it prove to be unfounded, may have caused to the person named as the alleged harasser by an inquiry procedure. (see paras 68, 69)

See the text of the decision. (see paras 71, 72, 75, 79)

See the text of the decision. (see paras 73, 74)

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. Even if the opinion delivered by the Advisory Committee is not legally binding, since the administration deciding on the request for assistance has that opinion, it must also be brought to the attention of the author of the request for assistance, so that he can take a prior position on its content before the administration decides on the request for assistance on the basis, including indirectly, of that opinion. (see paras 84, 85, 89)

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 person making the request at the pre-litigation stage. (see paras 92-94, 96)

Since neither the TFEU nor the Statute of the Court of Justice of the European Union, nor the Rules of Procedure of the General Court, provide for the imposition of a sanction in the case of a refusal to comply with an order made under Article 92 of the Rules of Procedure ordering a measure of inquiry, the General Court’s only possible response to a refusal by the defendant to produce documents, which moreover infringes the obligation of sincere cooperation under Article 13(2) TEU, is to draw all the appropriate inferences from that refusal in the decision closing the case. In that regard, it is not for the parties to the proceedings but for the General Court to assess whether documents required to be produced under Article 92(3) of the Rules of Procedure of the General Court are confidential and, where applicable, to assess whether, in the event that the EU court finds those documents to be confidential, it is appropriate not to forward them in their current form to the applicant, in order to protect the identity of witnesses, but instead to require the defendant to produce either a non-confidential version of those documents omitting the name of the witnesses and data from which their identity can be established without reasonable doubt, or a non-confidential summary of those documents. (see paras 100, 104)

See the text of the decision. (see para. 114)