ORDER OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

4 April 2011

Case F-45/10

AO

v

European Commission

(Civil service — Officials — Disciplinary measure — Removal from post — Article 35(1)(d) and (2)(a) of the Rules of Procedure — Application manifestly inadmissible in part and manifestly unfounded in part)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby AO seeks annulment of the Commission’s decision of 23 July 2009 imposing on him the penalty of removal from post without reduction of pension rights, with effect from 15 August 2009.

Held: The action is dismissed as manifestly inadmissible in part and manifestly unfounded in part. The applicant is ordered to pay all the costs.

Summary

1. Procedure — Action before the Civil Service Tribunal — Possibility to dismiss the action on the substance without ruling beforehand on the plea of inadmissibility raised by the defendant

2. Officials — Psychological harassment — Concept — Conduct designed to discredit the person concerned or to impair his working conditions

(Staff Regulations Art. 12a(3))

1. The European Union judicature is entitled to assess, depending on the circumstances of each individual case, whether the proper administration of justice justifies the rejection of the action on the substance without ruling beforehand on the plea of inadmissibility raised by the defendant.

(see para. 34)

See:

8 April 2008, F-134/06 Bordini v Commission, para. 56; 28 October 2010, F-113/05 Kay v Commission, para. 31 and case-law cited

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. First, 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 conduct which arises accidentally. Second, 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 conduct, to discredit the victim or deliberately impair the latter’s working conditions. It is sufficient that such conduct, provided that it was committed intentionally, led objectively to such consequences.

(see para. 37)

See:

9 December 2008, F-52/05 Q v Commission, para. 135, on appeal before the General Court of the European Union, Case T-80/09 P