JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

12 December 2014

AN

v

European Commission

‛Appeal — Civil service — Officials — Psychological harassment — Article 22a(3) of the Staff Regulations — Failure to adjudicate — Distortion of facts’

Appeal:

against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 11 July 2013 in AN v Commission (F‑111/10, ECR-SC, EU:F:2013:114), seeking to have that judgment set aside.

Held:

The judgment of the European Union Civil Service Tribunal (Second Chamber) in AN v Commission (F 111/10, ECR-SC, EU:F:2013:114) is set aside, in so far as it failed to adjudicate on the plea in law alleging the irregularity of the investigation with the reference CMS 07/041. The remainder of the appeal is dismissed. The action brought by AN before the Civil Service Tribunal in Case F‑111/10 is dismissed. AN is to bear her own costs and is ordered to pay half of the costs incurred by the European Commission relating both to the proceedings before the Civil Service Tribunal and the present proceedings. The Commission is to bear half of its own costs relating both to the proceedings before the Civil Service Tribunal and the present proceedings.

Summary

Officials — Rights and obligations — Freedom of expression — Disclosure of facts giving rise to a presumption of the existence of illegal activity or serious failure to comply with obligations — Protection of official having communicated such facts — Scope

(Staff Regulations, Art. 22a(3))

Article 22a(3) of the Staff Regulations provides that an official who has communicated, pursuant to Article 22a(1), information concerning facts which give rise to a presumption of the existence of possible illegal activity or conduct which may reveal a serious failure to comply with the obligations of officials of the European Union is not to suffer any prejudicial effects on the part of the institution, provided that he acted reasonably and honestly’. In that regard, irregularities which occurred in an administrative procedure may constitute prejudicial effects within the meaning of that article, even if the procedure has not resulted in any action being taken or any act adversely affecting an official. Regardless of the outcome of the administrative procedure, it cannot automatically be ruled out that the specific circumstances of such an investigation, particularly where the official against whom the procedure was initiated has suffered excessive, inappropriate or vexatious conduct, may in themselves cause prejudicial effects for the official concerned. Article 22a(3) of the Staff Regulations is thus designed not just to protect the whistleblower from the opening of an unjustified investigation, but also to protect him from any material or non-material harm suffered in the course of an investigation, even if the opening of that investigation is justified. The fact that an administrative procedure was not the result of a request for assistance from an official is not capable of calling that finding into question.

However, not every irregularity which occurs in the course of an administrative investigation is necessarily liable to constitute a prejudicial effect within the meaning of that article. That assessment, which requires facts of a certain seriousness, depends on the circumstances of each individual case.

(see paras 30, 33, 34, 64)

JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

12 December 2014

AN

v

European Commission

‛Appeal — Civil service — Officials — Psychological harassment — Article 22a(3) of the Staff Regulations — Failure to adjudicate — Distortion of facts’

Appeal:

against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 11 July 2013 in AN v Commission (F‑111/10, ECR-SC, EU:F:2013:114), seeking to have that judgment set aside.

Held:

The judgment of the European Union Civil Service Tribunal (Second Chamber) in AN v Commission (F 111/10, ECR-SC, EU:F:2013:114) is set aside, in so far as it failed to adjudicate on the plea in law alleging the irregularity of the investigation with the reference CMS 07/041. The remainder of the appeal is dismissed. The action brought by AN before the Civil Service Tribunal in Case F‑111/10 is dismissed. AN is to bear her own costs and is ordered to pay half of the costs incurred by the European Commission relating both to the proceedings before the Civil Service Tribunal and the present proceedings. The Commission is to bear half of its own costs relating both to the proceedings before the Civil Service Tribunal and the present proceedings.

Summary

Officials — Rights and obligations — Freedom of expression — Disclosure of facts giving rise to a presumption of the existence of illegal activity or serious failure to comply with obligations — Protection of official having communicated such facts — Scope

(Staff Regulations, Art. 22a(3))

Article 22a(3) of the Staff Regulations provides that an official who has communicated, pursuant to Article 22a(1), information concerning facts which give rise to a presumption of the existence of possible illegal activity or conduct which may reveal a serious failure to comply with the obligations of officials of the European Union is not to suffer any prejudicial effects on the part of the institution, provided that he acted reasonably and honestly’. In that regard, irregularities which occurred in an administrative procedure may constitute prejudicial effects within the meaning of that article, even if the procedure has not resulted in any action being taken or any act adversely affecting an official. Regardless of the outcome of the administrative procedure, it cannot automatically be ruled out that the specific circumstances of such an investigation, particularly where the official against whom the procedure was initiated has suffered excessive, inappropriate or vexatious conduct, may in themselves cause prejudicial effects for the official concerned. Article 22a(3) of the Staff Regulations is thus designed not just to protect the whistleblower from the opening of an unjustified investigation, but also to protect him from any material or non-material harm suffered in the course of an investigation, even if the opening of that investigation is justified. The fact that an administrative procedure was not the result of a request for assistance from an official is not capable of calling that finding into question.

However, not every irregularity which occurs in the course of an administrative investigation is necessarily liable to constitute a prejudicial effect within the meaning of that article. That assessment, which requires facts of a certain seriousness, depends on the circumstances of each individual case.

(see paras 30, 33, 34, 64)