EN
ReportsofCases
ECLI:EU:F:2010 :12 1JUDGMENT O F THE CIVIL SERVICE TRIBUNAL
(Third Ch amber)
24 February 2010
Case F-2/09
Ric cardo Ac hille M enghi
v
European Network and Information Se curity Agency (ENISA)
(Civil service — Temp orary staff — Dismissal following end of the probationary period — 
Psychological harassment)
Application:brought u nder Articles 236 E C and 152 E A, in which M r Menghi seeks, in particular, 
annulment of ENISA’s decision o f 14 March 2008 di smissing him.
Held: The action is dismissed. Each party is ordered to bear its own costs.
Summ ary
1. Officials — Members of the temporary staff — Recruitment — Probationary period
(Staff Regulations, Art. 12a)
2. Procedure — Supplementary arguments presented a t the hearing in support of a p lea already relied 
on in the application — Lawfulness
(Statute of the Court of Justice, Art. 21; Rules of Procedure of the Civil Service Tribunal, Art. 35(1))
3. Officials — Members of the temporary staff — Obligation of administration to provide a ssistance — 
Scope
(Staff Regulations, Art. 24)
4. Officials — Members of the temporary staff — Actions — Pleas in law — Plea claiming misuse of 
power in support of an action against a de cision to dismiss following the comm unication of information 
to the Eu ropean Anti-Fraud Office
(Staff Regulations, Art. 22a)
1. Psychological harassment, according to th e definition g iven in Article 12a of the Staff Regulations, 
means conduct that takes place over a pe riod and is repetitive and systematic, whereas a d ecision o f 
the ad ministration is a s pecific eve nt, eve n if it may have long-lasting or eve n definitive effects, as is 
true of a d ecision to dismiss.
2 ECLI:EU:F:2010 :12SUMM ARY—CASEF-2/09
MENGHIvENISA
Consequently, just because a mem ber of the temp orary staff has been proved to have s uffered 
psychological harassment does no t thereby render unlawful any decision ad versely affecting th e staff 
mem ber and occurring in th at context of harassment. There must still be shown to be a l ink between 
the harassment in question a nd the grounds for the decision to dismiss him.
In the case of a di smissal at the end of the probationary period, the staff mem ber may reasonably argue 
that he has no t been able to demonstrate his ability to pe rform his duties as a r esult of psychological 
harassment and that, consequently, the lack of ability given as the ground for the decision h e disputes 
is incorrect, vitiating that decision b y a m anifest error of assessment.
Likewise, the existence of a c ontext of psychological harassment may also be taken into account where 
the author of the harassment is also the signatory of the dismissal decision — or on e of the signatories 
of the probationary report on th e basis of which the dismissal was decided — in order to establish that 
the dismissal decision w as adopted with th e aim of harming the staff mem ber, and that it is therefore 
vitiated by a m isuse of power.
Thus, where an allegation o f psychological harassment is relied on i n support of heads of claim 
directed against a di smissal decision t aken at the end of a p robationary pe riod, that decision m ay be 
vitiated by a m anifest error of assessment, in p articular, because th e staff mem ber suffering 
harassment will no t have b een able to demonstrate his ability to pe rform his duties. Misuse of power 
may also be accepted if the dismissal decision w as ad opted in order to undermine th e pe rsonality, 
dignity or physical or psychological integrity of the staff mem ber.
Furthermore, it is possible that the facts relied on t o prove th e existence of psychological harassment, 
even though they may no t be characterised as such within the me aning of the provisions of Article 12a 
of the Staff Regulations, nevertheless show th at the dismissal decision is vitiated by a m anifest error of 
assessment or misuse of power and that it should, consequently, be annulled.
(see paras 68-73)
2. While it is no t a m atter for the Civil Service Tribunal to seek and identify, in th e annexes, pleas in 
law and arguments which it might deem t o constitute the basis of the action, since the annexes have a 
purely evidential and instrumental function, it must take account of all the arguments presented by the 
applicant at the hearing, in so far a s th ose ar guments do no t constitute a n ew p lea in law, but 
supplementary information in support of a p lea already relied on i n the application.
(see para. 114 )
See:
T-209/01 H oneywell v C omm ission [2005 ] ECR II- 5527 , para. 57
3. Although Article 24 o f the Staff Regulations lays down a d uty to provide assistance in respect of 
personnel which binds the institutions to assist officials in any attack or threat to which th ey ar e 
subject by reason o f their position o r duties, that obligation d oes no t cover the defence of officials 
against the acts of the institution itself.
Even th ough th e provisions of Article 24 o f the Staff R egulations impose an obligation on th e 
Community institutions to provide assistance, only ad ministrative d ecisions whose content relates to 
that obligation, in other words, decisions rejecting a r equest for assistance or, in certain exceptional 
circumstances, the institutions’ failure to provide a s taff mem ber with a ssistance on th eir o wn 
initiative ar e capable of infringing that duty.
ECLI:EU:F:2010 :12 3SUMM ARY—CASEF-2/09
MENGHIvENISA
The subject-matter of a di smissal decision d oes no t fall within th e scope o f Article 24 o f the Staff 
Regulations and th erefore has no thing to do with th e duty to provide assistance laid d own in th at 
article. It thus cannot reasonably be claimed th at a di smissal decision infringes the provisions of that 
article.
Consequently, where a mem ber of the temp orary staff who considers himself the victim of attacks o r 
threats from a h ierarchical superior contests the legality of a d ecision t o dismiss him, it is for him to 
demonstrate no t th at th e di smissal decision i nfringes th e provisions of Article 24 o f th e Staff 
Regulations, but that there has been a m anifest error of assessment or misuse of power. The staff 
mem ber may thus reasonably claim, in particular, that it was because of attacks or threats against him 
that he committed a f ault or was no l onger capable of performing the tasks assigned to him, and that 
that fault or inability to pe rform his duties was the reason for his dismissal.
(see paras 128 -131)
See:
T-95/04 L avagnoli v C omm ission [2006 ] ECR-SC I-A-2-121 a nd II-A-2-569, para. 141
4. Article 22a(3) of the Staff Regulations provides that an official who has communicated, pursuant to 
paragraph 1 of that article, information c oncerning facts which give ri se to a p resumption o f the 
existence of possible illegal activity or of conduct which m ay constitute a s erious failure to comply 
with th e obligations of officials of the European Communities ‘shall no t suffer any prejudicial effects 
on th e part of the institution … p rovided th at he acted reasonable and honestly’. Consequently, the 
fact th at a d ecision th at was unfavourable to a mem ber of the temp orary staff chronologically 
followed th e communication o f information t o th e European A nti-Fraud O ffice from th at staff 
mem ber must lead th e Civil Service Tribunal, when hearing an action dir ected against a di smissal 
decision s upported by a p lea of m isuse of power, to consider th at plea particularly carefully. 
Nonetheless, those provisions do no t offer an official who has communicated information c oncerning 
facts which give ri se to a p resumption o f the existence of possible illegal activity, pursuant to 
Article 22a(1) of the Staff Regulations, protection a gainst any decision likely ad versely to affect him, 
but only against decisions adopted as a r esult of that communication.
(see paras 137 -139)