JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

16 May 2012

Case F‑61/10

AF

v

European Commission

(Civil service — Officials — Request for assistance — Psychological harassment and discriminatory treatment — Error of assessment)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which AF brought the present action seeking annulment of the decision by which the Commission rejected his request for assistance in respect of psychological harassment and his application for compensation, and seeking an order that the Commission pay him damages.

Held: The action is dismissed. The applicant is to pay all the costs.

Summary

1. Officials — Administration’s obligation to provide assistance — Field of application — Scope — Judicial review — Limits

(Staff Regulations, Art. 24)

2. Officials — Psychological harassment — Definition — Conduct aimed at discrediting the person concerned or at impairing his working conditions — Requirement that the conduct be repetitive in character — Requirement that the conduct be intentional — Scope — No requirement that the harasser had malicious intent

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

3. Officials — Psychological harassment — Definition — Assignment to an official of additional tasks resulting in an increased workload — Inclusion — Condition

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

1. Article 24 of the Staff Regulations is intended to protect officials of the Union against harassment or degrading treatment of any kind not only by third parties but also by their hierarchical superiors or their colleagues.

By virtue of the duty to render assistance provided for in that article, the administration, when faced with an incident which is incompatible with the good order and tranquillity of the service, must intervene with all the necessary vigour and respond with the rapidity and solicitude required by the circumstances of the case with a view to ascertaining the facts and taking the appropriate action in full knowledge of the facts. To that end, it is sufficient that an official who is seeking the protection of his institution provide at least some evidence of the reality of attacks of which he claims he was the victim. When such evidence is provided, the institution concerned is under an obligation to take the necessary measures, in particular to undertake an inquiry, with the cooperation of the complainant, to determine the facts which gave rise to the complaint.

Review by the Union judicature of measures taken by the administration must be confined to the question whether the institution concerned has remained within reasonable limits and has not used its discretion in a manifestly incorrect way.

(see paras 70-72)

See:

25 October 2007, T‑154/05 Lo Giudice v Commission, paras 135 to 137 and the case-law cited therein

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’ and which are ‘intentional’. The second condition, separated from the first by the preposition ‘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. Firstly, 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 reprehensible conduct which arises accidentally. Secondly, 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 reprehensible conduct, to discredit the victim or deliberately impair the latter’s working conditions. It is sufficient that such reprehensible conduct, provided that it was committed intentionally, led objectively to such consequences.

The classification of harassment is subject to the condition of its being objectively sufficiently real, in the sense that an impartial and reasonable observer, of normal sensitivity and in the same situation, would consider it to be excessive and open to criticism.

(see paras 88-91)

See:

9 December 2008, F‑52/05 Q v Commission, paras 132, 134 and 135; 16 May 2012, F‑42/10 Skareby v Commission, para. 65

3. Although it is possible that imposing an increased workload on an official for a prolonged period may, under certain circumstances, constitute psychological harassment, the fact remains that the conditions laid down in Article 12a(3) of the Staff Regulations for it to be classified as psychological harassment must be satisfied.

(see para. 118)