JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

8 October 2014

Case T‑530/12 P

Moises Bermejo Garde

v

European Economic and Social Committee (EESC)

(Appeal — Civil service — Officials — Psychological harassment — Illegal activities affecting the interests of the European Union — Serious failure to comply with the obligations of officials — Articles 12a and 22a of the Staff Regulations — Denunciation by the appellant — Reassignment following that denunciation — No consultation of OLAF by the immediate superior who received the information — Acts adversely affecting a person — Whether official acted reasonably and honestly — Rights of the defence — Competence of the authority issuing the act)

Appeal: against the judgment of the European Union Civil Service Tribunal (First Chamber) of 25 September 2012 in Bermejo Garde v EESC (F‑41/10), seeking the setting aside of that judgment.

Held: The judgment of the European Union Civil Service Tribunal (First Chamber) of 25 September 2012 in Bermejo Garde v EESC (F‑41/10) is set aside in so far as it dismisses Mr Moises Bermejo Garde’s claims for annulment of Decision No 133/10 A of the European Economic and Social Committee (EESC) of 24 March 2010 relieving him of his previous post and of EESC Decision No 184/10 A of 13 April 2010 concerning his reassignment. The remainder of the appeal is dismissed. The case is referred back to the Civil Service Tribunal. The costs are reserved.

Summary

1. 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 — Obligation — Exception in the situation of an official who considers himself the victim of harassment

(Staff Regulations, Arts 12a and 22a)

2. Officials — Psychological harassment — Reporting of harassment not just under Article 12a but also under Article 22a of the Staff Regulations — Protection against disciplinary proceedings — Condition — Official to have acted reasonably and honestly — Factors to be taken into consideration — Compliance with conditions laid down by the above provisions — Compliance with other obligations under the Staff Regulations

(Staff Regulations, Arts 12a and 22a)

3. 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 against disciplinary proceedings — Condition — Official to have acted reasonably and honestly — Factors to be taken into consideration — Obligation to take account of the context underlying the communication of the information

(Staff Regulations, Art. 22a)

1. Article 22a(1) of the Staff Regulations lays down, in the interests of the European Union, an obligation which applies, in principle, to all officials. In special cases, where illegalities or serious failures to comply with obligations are the result of conduct which may also be classified as harassment within the meaning of Article 12a(3) and (4) of the Staff Regulations, the official concerned enjoys the rights conferred by Article 12a and, in that regard, has the possibility of submitting a request for assistance under Article 24 of the Staff Regulations. The general obligation to inform laid down by Article 22a(1) may therefore be incompatible with the special protection expressly extended to victims of harassment by the first sentence of Article 12a(2). Consequently, it must be held that an official who considers himself a victim of harassment cannot be required to report facts relating to harassment. However, it is possible that he may, if he so wishes, report facts relating to harassment on the basis of Article 22a, in the interests of the European Union, since harassment ‘may constitute a serious failure to comply with the obligations of officials’ within the meaning of that article.

(see para. 106)

2. It is apparent from both Article 12a(2) and Article 22a(3) of the Staff Regulations that an official who provides information in accordance with those two provisions must not suffer any prejudicial effects on the part of the institution, provided that he acted reasonably and honestly. Consequently, it is required as a condition for the application of both provisions that the official concerned must have acted reasonably and honestly.

It is true that the scope of Articles 12a and 22a of the Staff Regulations is different. The concept of harassment is expressly defined in Article 12a(3) and (4) and is distinguished from the concepts of illegal activity detrimental to the interests of the Union and serious failure to comply with the obligations of officials of the Union referred to in Article 22a(1) of the Staff Regulations.

However, where an official reports facts relating to harassment not just in connection with a request for assistance on the basis of Articles 12a and 24 of the Staff Regulations, but also on the basis of Article 22a, he is also required to comply with the conditions laid down in Article 22a.

In that regard, Article 22a(1) of the Staff Regulations relates to illegal acts which are detrimental to the interests of the Union, which necessarily implies that those acts have a certain degree of gravity. Likewise, the examples given in that provision — fraud and corruption — are intrinsically serious. That being so, the whistleblowing mechanism provided for by Article 22a should, in accordance with its purpose, be initiated only in situations where the information provided relates to conduct of a certain gravity. That provision must 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.

Consequently, when an official communicates information under Articles 12a and 22a of the Staff Regulations, he is not exempt from his other obligations and duties. On the contrary, he must act judiciously to avoid causing undue harm to his colleagues or to the proper functioning of his department. The communication of improbable information or unfounded facts is likely to have just such harmful effects.

Similarly, the decision to disseminate the information beyond the group of persons expressly referred to in Article 22a is relevant for assessing whether the official acted reasonably and honestly.

(see paras 114-116, 118, 123, 128, 129, 135)

3. The question whether an official acted reasonably and honestly when he communicated information under Article 22a of the Staff Regulations cannot be assessed in the abstract but requires the taking into account of all aspects of the context in which the official communicated information making certain allegations against his superiors.

In that regard, and in so far as Article 22a(1) of the Staff Regulations makes it, in principle, an obligation to forward information rather than a right or an option, the existence of an obligation may have an effect on the response to the question whether an official acted reasonably and honestly within the meaning of Article 22a(3) of the Staff Regulations when he communicated the information referred to in paragraph 1 of that article. An official who is aware of facts capable of falling within the scope of Article 22a(1) has less discretion in a situation where he is subject to an obligation to communicate the information than in a situation where he is free to decide to do so. In the first case, he faces the risk of disciplinary action within the meaning of Article 86 of the Staff Regulations, whereas that risk does not exist if he decides not to make use of an option.

Consequently, an official who is in doubt about whether Article 22a(1) of the Staff Regulations applies will be more inclined to communicate information where he is under an obligation than where he is not.

Moreover, the high level of responsibility held by the official concerned may mean that he is more aware of his obligations under the Staff Regulations.

(see paras 148-150, 152)