JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

25 September 2012

Case F‑41/10

Moises Bermejo Garde

v

European Economic and Social Committee (EESC)

(Civil service — Officials — Psychological harassment — Request for assistance — Right of disclosure — Reassignment — Interests of the service)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Mr Bermejo Garde seeks annulment of the decisions by which the President of the European Economic and Social Committee (EESC), first, rejected the request for assistance submitted on account of the psychological harassment suffered and refused to refer the matter to the European Anti-Fraud Office (OLAF) and, second, terminated the applicant’s previous duties and ordered that he be reassigned, and also an order that the EESC pay damages to the applicant.

Held: The action is dismissed. The parties must bear their own costs.

Summary

1. Actions brought by officials — Act adversely affecting an official — Definition — Note from the administration informing the official concerned of its intention to reassign him in the future — Not included

(Staff Regulations, Art. 90(2))

2. Actions brought by officials — Interest in bringing proceedings — Action brought against refusal by the administration to refer the matter to the European Anti-Fraud Office (OLAF) — No personal claims — Inadmissibility

(Staff Regulations, Arts 90 and 91)

3. Officials — Principles — Rights of defence — Obligation to hear an official before adopting an act adversely affecting him — Scope — Decision rejecting a request for assistance — Not included

(Staff Regulations, Art. 24)

4. Officials — Psychological harassment — Definition — Conduct aimed at discrediting the official concerned or at impairing his working conditions — Requirement that conduct should be recurrent — Requirement that conduct should be intentional — Scope — No requirement of malicious intent on the part of the harasser

(Staff Regulations, Art. 12a(3))

5. Officials — Rights and obligations — Freedom of expression — Disclosure of facts that might give rise to a presumption of the existence of illegal activity or serious failure to comply with obligations — Protection against disciplinary proceedings — Condition — Good faith of the official — Factors to be taken into consideration

(Staff Regulations, Arts 12a and 22a)

6. Officials — Organisation of departments — Assignment of staff — Reassignment — Administration’s discretion — Limits — Interests of the service — Compliance with the principle of assignment to an equivalent post — Judicial review — Limits

(Staff Regulations, Art. 7)

1. Only an act or measure producing binding legal effects that directly and immediately affect the applicant’s interest by significantly altering his legal position is an act adversely affecting him, and such an act or measure must be taken by the competent authority and must contain a definitive position adopted by the administration. The mere manifestation on the part of the competent authority of an intention to adopt a specific decision in the future, such as the reassignment of an official, is not capable of creating corresponding rights or obligations on the part of the official or officials concerned.

(see paras 49-50)

See:

16 March 1993, T‑33/89 and T‑74/89 Blackman v Parliament, para. 27; 17 May 2006, T‑95/04 Lavagnoli v Commission, para. 35

14 September 2010, F‑52/09 Da Silva Pinto Branco v Court of Justice, para. 32

2. An official is not authorised to act in the interests of the law or of the institutions and can rely, in support of an action, only on complaints which are personal to him. If it were accepted that an official who has alerted his immediate superior to the existence of irregularities not directly concerning him could bring an action against that superior’s refusal to communicate that information to the European Anti-Fraud Office, that would amount to accepting that that official was authorised to act in the interests of the law. However, there is the possibility that that official, where he considers that he has been the subject of a decision adversely affecting his rights on account of the information provided to his superiors, may bring an action against such a decision.

(see para. 62)

See:

7 July 1998, T‑178/97 Moncada v Commission, para. 39

3. Respect for the rights of the defence, in all proceedings which are initiated against a person and are liable to culminate in a measure adversely affecting that person, is a fundamental principle of EU law which must be guaranteed, even in the absence of any rules governing the procedure in question. However, the proceedings initiated by a request for assistance made under Article 24 of the Staff Regulations cannot be regarded as proceedings initiated against the person concerned. Thus, the administration’s decision rejecting a request for assistance is not one of the decisions in regard to which the rights of the defence must be respected.

(see para. 78)

See:

10 July 1997, T‑36/96 Gaspari v Parliament, para. 32; 27 June 2000, T‑67/99 K v Commission, para. 72

4. 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’, 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’. The second cumulative condition, which is joined to 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 in 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 there having 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 his conduct, provided that it was voluntary, objectively entailed such consequences.

(see paras 82-83)

See:

9 December 2008, F‑52/05 Q v Commission, para. 135, not set aside on that point by judgment of 12 July 2011, T‑80/09 P Commission v Q; 16 May 2012, F‑42/10 Skareby v Commission, para. 65

5. In order to determine whether an official made honest use of the right of disclosure provided for in Articles 12a and 22a of the Staff Regulations, a certain number of factors must be taken into consideration.

It is necessary, first, to ascertain whether the information which the applicant decided to communicate to his superiors or, as the case may be, to the European Anti-Fraud Office (OLAF) direct, related to irregularities which, on the assumption that they were in fact committed, were obviously serious. The second factor to be taken into consideration is the authenticity or at least the likelihood of the reality of the information disclosed. The exercise of freedom of expression, which underlies the possibility for an official to lodge a complaint in respect of psychological harassment or the existence of unlawful acts, or a serious failure to fulfil the obligations of officials, entails duties and responsibilities, and anyone who chooses to disclose such information must carefully ascertain, in so far as the circumstances permit, that it is accurate and credible. Thus, an official who complains of irregularities which from his viewpoint fall within the scope of Articles 12a and 22a of the Staff Regulations is required to ensure that the accusations he makes are supported by accurate facts or, at least, that they are founded on a ‘sufficient factual basis’. In that regard, Article 22a of the Staff Regulations is aimed solely at the communication of actual facts which, on an initial assessment, led the official communicating them to form a reasonable presumption of the existence of an illegal activity or a serious breach of obligations and that provision must, moreover, be reconciled with the obligations of objectivity and impartiality placed on officials, with the obligation to have regard to the dignity of their post and with their duty of loyalty, and also with the obligation to respect the honour and the presumption of innocence of the persons concerned. It is also necessary to take into consideration the means employed by the official in making the disclosure and, with particular respect to irregularities covered by Article 22a(1) of the Staff Regulations, it must ascertain whether the official approached the competent authority or body, namely ‘his immediate superior or his Director-General or, if he considers it useful, the Secretary-General, or the persons in equivalent positions, or OLAF direct. Last, the motive of the official who reports illegalities is another factor in the assessment of whether he acted honestly. A denunciation motivated by a personal grievance or animosity or again by the prospect of a personal advantage, in particular a pecuniary advantage, cannot be regarded as being made honestly. Moreover, an official is under an obligation to show the greatest prudence and the greatest discretion in the publicity given to allegations coming within the competence of OLAF.

(see paras 134-138, 150)

See:

13 January 2011, F‑77/09 Nijs v Court of Auditors, paras 66 to 70 and 80

6. Although the Staff Regulations, in particular Article 7, do not expressly provide for the possibility of ‘reassigning’ an official, the institutions have a wide discretion in the organisation of their departments according to the tasks conferred on them and in the assignment, in view of those tasks, of staff who are made available to them, on condition, however, first, that that assignment is carried out in the interests of the service and, second, that the principle of assignment to an equivalent post is respected.

With regard to the first condition, review by the EU Courts of compliance with the conditions relating to the interests of the service must be limited to the question whether the appointing authority remained within reasonable limits and did not use its discretion in a manifestly incorrect fashion. In that regard, difficult internal relations, where they cause tension prejudicial to the proper functioning of the service, may justify, in the interests of the service, the transfer of an official in order to put an end to an administrative situation which has become intolerable. Such a reassignment, decided upon in the interests of the service, does not require the consent of the official in question. Furthermore, for the purpose of examining whether strained relations may justify, in the interests of the service, the transfer of an official, there is no need to identify the person responsible for the incidents in question or even to know whether the accusations made are well founded.

With regard to the second condition, in the event of a change in an official’s duties, the principle that the post to which an official is assigned should correspond to his grade, set out in Article 7 of the Staff Regulations, calls for a comparison between his present duties and his grade, not between his present and previous duties. Accordingly, that rule does not preclude a decision from entailing the assignment of new duties which, although they are different from those previously carried out and are perceived by the person concerned as bringing about a reduction of his responsibilities, are none the less consistent with a post corresponding to his grade. Thus, an actual reduction of the responsibilities of an official does not breach the rule that the post should correspond to the grade unless his new responsibilities, taken together, fall clearly short of those corresponding to his grade and post, taking account of their character, their importance and their scope. Last, the Staff Regulations do not grant officials any right to a specific post, but, on the contrary, leave to the appointing authority the power to assign officials, in the interests of the service, to the various posts corresponding to their grade. Furthermore, while it cannot be denied that the administration has every interest in assigning its officials to posts which accord with their particular aptitudes and their personal preferences, officials cannot be recognised as having a right to perform or to retain specific duties or to refuse any other duties relating to their basic post.

(see paras 156, 158-159, 162-164)

See:

12 July 1979, 124/78 List v Commission, para. 13; 22 October 1981, 218/80 Kruse v Commission, para. 7; 1 June 1983, 36/81, 37/81 and 218/81 Seton v Commission, paras 41 to 44; 23 March 1988, 19/87 Hecq v Commission, paras 6 and 7; 7 March 1990, C‑116/88 and C‑149/88 Hecq v Commission, para. 22; 12 November 1996, C‑294/95 P Ojha v Commission, para. 41

23 October 1990, T‑46/89 Pitrone v Commission, para. 35; 28 May 1998, T‑78/96 and T‑170/96 W v Commission, paras 88 and 105; 15 September 1998, T‑23/96 De Persio v Commission, para. 138; 12 December 2000, T‑223/99 Dejaiffe v OHIM, para. 53

25 January 2007, F‑55/06 de Albuquerque v Commission, para. 55; 8 May 2008, F‑119/06 Kerstens v Commission, para. 96