JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

24 February 2010

Case F-2/09

Riccardo Achille Menghi

v

European Network and Information Security Agency (ENISA)

(Civil service — Temporary staff — Dismissal following end of the probationary period — Psychological harassment)

Application: brought under Articles 236 EC and 152 EA, in which Mr Menghi seeks, in particular, annulment of ENISA’s decision of 14 March 2008 dismissing him.

Held: The action is dismissed. Each party is ordered to bear its own costs.

Summary

1. Officials — Members of the temporary staff — Recruitment — Probationary period

(Staff Regulations, Art. 12a)

2. Procedure — Supplementary arguments presented at the hearing in support of a plea 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 assistance — 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 decision to dismiss following the communication of information to the European Anti-Fraud Office

(Staff Regulations, Art. 22a)

1. Psychological harassment, according to the definition given in Article 12a of the Staff Regulations, means conduct that takes place over a period and is repetitive and systematic, whereas a decision of the administration is a specific event, even if it may have long-lasting or even definitive effects, as is true of a decision to dismiss.

Consequently, just because a member of the temporary staff has been proved to have suffered psychological harassment does not thereby render unlawful any decision adversely affecting the staff member and occurring in that context of harassment. There must still be shown to be a link between the harassment in question and the grounds for the decision to dismiss him.

In the case of a dismissal at the end of the probationary period, the staff member may reasonably argue that he has not been able to demonstrate his ability to perform his duties as a result of psychological harassment and that, consequently, the lack of ability given as the ground for the decision he disputes is incorrect, vitiating that decision by a manifest error of assessment.

Likewise, the existence of a context of psychological harassment may also be taken into account where the author of the harassment is also the signatory of the dismissal decision — or one of the signatories of the probationary report on the basis of which the dismissal was decided — in order to establish that the dismissal decision was adopted with the aim of harming the staff member, and that it is therefore vitiated by a misuse of power.

Thus, where an allegation of psychological harassment is relied on in support of heads of claim directed against a dismissal decision taken at the end of a probationary period, that decision may be vitiated by a manifest error of assessment, in particular, because the staff member suffering harassment will not have been able to demonstrate his ability to perform his duties. Misuse of power may also be accepted if the dismissal decision was adopted in order to undermine the personality, dignity or physical or psychological integrity of the staff member.

Furthermore, it is possible that the facts relied on to prove the existence of psychological harassment, even though they may not be characterised as such within the meaning of the provisions of Article 12a of the Staff Regulations, nevertheless show that the dismissal decision is vitiated by a manifest error of assessment or misuse of power and that it should, consequently, be annulled.

(see paras 68-73)

2. While it is not a matter for the Civil Service Tribunal to seek and identify, in the annexes, pleas in law and arguments which it might deem to 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 as those arguments do not constitute a new plea in law, but supplementary information in support of a plea already relied on in the application.

(see para. 114)

See:

T-209/01 Honeywell v Commission [2005] ECR II-5527, para. 57

3. Although Article 24 of the Staff Regulations lays down a duty to provide assistance in respect of personnel which binds the institutions to assist officials in any attack or threat to which they are subject by reason of their position or duties, that obligation does not cover the defence of officials against the acts of the institution itself.

Even though the provisions of Article 24 of the Staff Regulations impose an obligation on the Community institutions to provide assistance, only administrative decisions whose content relates to that obligation, in other words, decisions rejecting a request for assistance or, in certain exceptional circumstances, the institutions’ failure to provide a staff member with assistance on their own initiative are capable of infringing that duty.

The subject-matter of a dismissal decision does not fall within the scope of Article 24 of the Staff Regulations and therefore has nothing to do with the duty to provide assistance laid down in that article. It thus cannot reasonably be claimed that a dismissal decision infringes the provisions of that article.

Consequently, where a member of the temporary staff who considers himself the victim of attacks or threats from a hierarchical superior contests the legality of a decision to dismiss him, it is for him to demonstrate not that the dismissal decision infringes the provisions of Article 24 of the Staff Regulations, but that there has been a manifest error of assessment or misuse of power. The staff member may thus reasonably claim, in particular, that it was because of attacks or threats against him that he committed a fault or was no longer capable of performing the tasks assigned to him, and that that fault or inability to perform his duties was the reason for his dismissal.

(see paras 128-131)

See:

T-95/04 Lavagnoli v Commission [2006] ECR-SC I-A-2-121 and 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 concerning facts which give rise to a presumption of the existence of possible illegal activity or of conduct which may constitute a serious failure to comply with the obligations of officials of the European Communities ‘shall not suffer any prejudicial effects on the part of the institution … provided that he acted reasonable and honestly’. Consequently, the fact that a decision that was unfavourable to a member of the temporary staff chronologically followed the communication of information to the European Anti-Fraud Office from that staff member must lead the Civil Service Tribunal, when hearing an action directed against a dismissal decision supported by a plea of misuse of power, to consider that plea particularly carefully. Nonetheless, those provisions do not offer an official who has communicated information concerning facts which give rise to a presumption of the existence of possible illegal activity, pursuant to Article 22a(1) of the Staff Regulations, protection against any decision likely adversely to affect him, but only against decisions adopted as a result of that communication.

(see paras 137-139)