1 By their appeal, HV and HW seek to have set aside the judgment of the General Court of the European Union of 13 July 2022, AI and Others v ECDC (T‑864/19, ‘the judgment under appeal’, EU:T:2022:452), by which the General Court dismissed their action under Article 270 TFEU seeking compensation for the damage which they claim to have suffered as a result, in essence, of the failure of the European Centre for Disease Prevention and Control (ECDC) to respond appropriately to the behaviour of A (‘the Head of Unit’) towards them between 2012 and 2018, which, in their view, constituted psychological harassment. Legal context
2 Article 31(1) of the Charter of Fundamental Rights of the European Union provides that ‘every worker has the right to working conditions which respect his or her health, safety and dignity’.
3 Article 24 of the Staff Regulations of Officials of the European Union, in the version applicable to the present proceedings (the ‘Staff Regulations’), provides that ‘the [European Union] shall assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties’. That article states that the European Union ‘shall jointly and severally compensate the official for damage suffered in such cases, in so far as the official did not either intentionally or through grave negligence cause damage and has been unable to obtain compensation from the person who did cause it.’
4 Section 3.7 of the document entitled ‘Informal Procedure for Cases of Psychological and Sexual Harassment - Manual for ECDC Confidential Counsellors’ (‘the Manual for ECDC Confidential Counsellors’), drawn up by the ECDC, provides that ‘a formal procedure is initiated on the basis of a written request for assistance by the complainant under Article 24 of the Staff Regulations, submitted to the Human Resources Manager and Legal Adviser, who are responsible for initiating the procedure’. That provision also states that, ‘in very rare and problematic cases where the health of the victim is in danger and the victim him-/herself is not capable of initiating an opening procedure, the Confidential Counsellor may contact [Human Resources] and the Head of [the] Resource Management and Coordination Unit / Director without the consent of the victim’. Background to the dispute
5 The background to the dispute is set out in paragraphs 2 to 94 of the judgment under appeal. For the purposes of the present proceedings, it may be summarised as follows.
6 AI, HV, HW and HY were members of the ECDC staff. With the exception of HY, they all worked in the unit managed by the Head of Unit.
7 In the summer of 2012, HV was placed under the management of B.
8 In December 2012 an ‘action plan’ was addressed to HV by management in order to improve his work performance.
9 In 2013, a person in Human Resources and HV met to address the situation which HV was experiencing with the Head of Unit and B.
10 On 18 December 2013, B sent an email to HV, summarising the main points discussed during a meeting which they had had the previous day, in the presence of C. Those points included the possibility that Human Resources might start daily monitoring of HV’s presence in the office.
11 By letter of 24 January 2014, the Head of Unit informed HV that he could continue to use the flexi-time system on condition that the ECDC was able to verify the time he actually spent in the office by checking his swipe card.
12 By email of 4 February 2014, HV complained to the head of Human Resources about the procedure for checking his swipe card.
13 On 12 May 2014, the ECDC was informed by the European Anti-Fraud Office (OLAF) of its decision to open an investigation into HV in relation to a suspected conflict of interest in the context of a contract.
14 On 27 May 2014, HV lodged an appeal against the appraisal report concerning his performance in 2013, which was considered ‘unsatisfactory’. By email of 25 June 2014, the director of the ECDC at that time (‘the former Director’) informed HV that he had decided to uphold that appraisal report.
15 As from 30 June 2014, HV was placed on long-term sick leave, which lasted until the end of that year.
16 By email of 22 July 2014, the Head of Unit informed HW that her performance for 2013 had been classed as ‘unsatisfactory’ in her appraisal report, contrary to the appraisal initially made by her line manager, D. HW appealed against that appraisal report.
17 At the end of August 2014, HV made a request to the head of Human Resources to be transferred to another unit. By email of 17 September 2014, the head of Human Resources informed HV of the reasons why his request for transfer had been refused.
18 From 1 October to 23 December 2014, HW was placed on sick leave.
19 On 12 November 2014, as part of the examination of HW’s appeal against her appraisal report, the former Director consulted D. Subsequently, HW also attended a meeting with the former Director. By email of 18 November 2014, the former Director informed HW that he had decided to reinstate the initial appraisal of her line manager, according to which the ‘efficiency, abilities and aspects of conduct evaluated correspond[ed] to the level required for the post’, and the statement that the appraisal was ‘satisfactory’.
20 In 2015, three members of the ECDC staff, including HV and HW, approached confidential counsellors dealing with harassment. Confidential counsellors are persons appointed by the ECDC whose task is to assist members of staff who regard themselves as victims of harassment, in the context of an informal procedure.
21 On 11 February 2015, HW submitted a request to the Office for Administration and Payment of Individual Entitlements (PMO) for recognition of an occupational disease under Article 73 of the Staff Regulations. From 15 March to 31 October 2015, HW was again placed on sick leave.
22 On 4 May 2015, the head of the Resource Management and Coordination Unit and the Deputy Director of the ECDC, who at the time headed the ECDC on an interim basis, in the place of the Director (‘the Director’), and HV met, in the presence of the confidential counsellor for HV and AI, in his capacity as a member of the Staff Committee. In order to prepare for the meeting, HV had sent an email to the Director, describing those actions of the Head of Unit which he had reported, and again asking to be transferred to another unit.
23 On 19 May 2015, the Director and the Staff Committee met, on the latter’s initiative, concerning the Head of Unit’s behaviour towards some ten members of the ECDC staff. According to the personal notes taken by the Director at that meeting, those staff members wished to remain anonymous at that stage. The Staff Committee therefore gave a general description of the conduct complained of. According to that description, those staff members, who worked in different units, had referred to situations in which they felt bullied, put under pressure or ridiculed. Some stated that they did not feel acknowledged for the work they had done. Several claimed to have suffered from that situation over quite a period of time, which affected their work and their health. Some had already taken ‘formal steps’, but not all the members of staff concerned wanted to take such steps and sought, through the Staff Committee, to obtain a solution from the Director. The latter stated that she would check with Human Resources as to what the possibilities would be, already stating that she would need to be informed of ‘more concrete situations’ and that, in order for the Director to be able to proceed to any action, that could not be done anonymously.
24 On 22 May 2015, HV’s former legal representative sent an email to the Director in which he pointed out, inter alia, what he described as a ‘request for assistance’, which HV had submitted on 4 May 2015. He also stated that the appraisal report on his client’s performance for 2014 was in the same vein as the preceding appraisal report. By expressing serious concerns about HV’s health, he sought an amicable settlement of the situation.
25 On 4 June 2015, a second follow-up meeting regarding the complaints made against the Head of Unit took place between the Staff Committee and the Director. It is apparent from the Director’s personal notes that, after obtaining information from Human Resources, she explained to the members of the Staff Committee that, in that type of situation, it was usually necessary to give the person concerned an opportunity to amend his or her behaviour. In those circumstances, the Director suggested that she organise a meeting between the Head of Unit and the persons concerned. In the event that one of those persons should not wish to participate personally in the meeting, his or her written testimony (indicating the name of the person and describing the situation, the conduct complained of and its impact) could be presented by the Staff Committee. The alternative was to lodge what the Director described as ‘formal complaints’. The Director concluded that, as had been stated at the meeting of 19 May 2015, the information available to her, owing to the lack of concrete and non-anonymised situations, did not enable her to undertake an investigation or any other action.
26 On 17 June 2015, a third meeting took place between the Director and the Staff Committee. According to the personal notes taken by the Director following that meeting, the Staff Committee stated that none of the persons concerned wished to have a meeting with the Head of Unit because (i) they feared retaliation, (ii) some of them were beyond amicable solutions, and (iii) they did not believe that impartiality would be guaranteed. The Director then proposed mediation by an external person, but the Staff Committee stated that the concern for impartiality was not the main reason for refusing the proposed mediation. For her part, the Director reiterated that, without information on concrete, non-anonymised situations, there was no basis for launching an investigation or any other action.
27 On 30 June 2015, having been informed that three members of the ECDC staff (including HV and HW) had approached a confidential counsellor, the Director asked them to complete an additional information form.
28 In July 2015, HW informed the Director that the PMO had accepted her request for recognition of an occupational disease.
29 On 14 September 2015, HV resigned from his post, requesting a shortened notice period, which was granted to him by the ECDC.
30 By emails of 20 and 21 September 2015, in the absence of any response from HV and HW to the request for additional information referred to in paragraph 26 above, the Director came to the conclusion that she did not have prima facie evidence of harassment on the part of the Head of Unit towards them which would justify launching a formal investigation into the matter.
31 On 31 October 2015, HW, who had been on sick leave since 15 March 2015, left the ECDC.
32 In 2016, OLAF closed its investigation into HV, referred to in paragraph 12 of the present judgment, without recommending that measures be taken against him.
33 AI and HY also complained to the ECDC regarding the Head of Unit’s behaviour.
34 By letter of 11 October 2018, AI, HV, HW and HY submitted a claim for compensation under Article 90(1) of the Staff Regulations, by which they sought compensation for the harm allegedly suffered by them as a result of the ECDC’s failure to respond appropriately to the Head of Unit’s behaviour towards them between 2012 and 2018 which, in their view, constituted psychological harassment. By decision of 11 February 2019, the Director rejected in its entirety that claim for compensation. By decision of 10 September 2019, the Director rejected in its entirety the complaint against the decision of 11 February 2019. The action before the General Court and the judgment under appeal
35 By their action brought under Article 270 TFEU, lodged at the Registry of the General Court on 17 December 2019, AI, HV, HW and HY seek compensation for the harm which they claim to have suffered in essence on account of the failure of the ECDC to respond appropriately to the behaviour of the Head of Unit towards them between 2012 and 2018, which, in their view, constituted psychological harassment.
36 By the judgment under appeal, the General Court, finding no unlawfulness on the part of the ECDC with regard to AI, HV, HW and HY, dismissed that action. Forms of order sought by the parties before the Court of Justice
37 By their appeal, HV and HW, the appellants, claim that the Court should: - set aside the judgment under appeal; - set aside the decision of 11 February 2019 and, where appropriate, the decision of 10 September 2019, referred to in paragraph 34 of the present judgment; and - order the ECDC to pay the costs.
38 The ECDC contends that the Court should dismiss the appeal and order the appellants to pay the costs. The appeal
39 In support of their appeal, the appellants put forward two grounds of appeal. The first ground of appeal alleges breach of the principle of the duty to provide assistance as defined in Article 24 of the Staff Regulations, whether or not read in conjunction with the Manual for ECDC Confidential Counsellors, an error of law in defining the scope of that duty in the absence of a formal request for assistance, and breach of the duty to ensure healthy, safe and dignified working conditions. The second ground of appeal alleges an error in the legal characterisation of the facts as not entailing an obligation for the defendant to provide assistance and a distortion of the facts and evidence. The first ground of appeal Arguments of the parties
40 According to the appellants, Article 24 of the Staff Regulations does not provide that the member of staff concerned needs to submit a request for assistance. The duty to provide assistance exists in and of itself and is not subordinated to a request for assistance. Such a request is one of the means of making the institution or agency in question aware of a situation which calls for its assistance, but there are other means of doing so. In that regard, what is decisive is whether the administration has prima facie evidence of a situation which calls for its assistance. Where such prima facie evidence exists, the administration is required to open an administrative inquiry.
41 In the view of the appellants, to rule that the administration is obliged to provide assistance on its own initiative only in exceptional circumstances, the General Court added a condition which does not exist to Article 24 of the Staff Regulations. Such an interpretation of that article would be incompatible with the administration’s duty to ensure that working conditions respect, in accordance with Article 31 of the Charter of Fundamental Rights, the health, safety and dignity of staff.
42 The appellants state that, in the present case, the ECDC administration had received a considerable number of alerts from the members of staff concerned and from other members of staff. Having regard to the applicable rules and, in particular, the ECDC Manual for Confidential Counsellors, the ECDC ought to have taken some action.
43 The ECDC disputes the appellants’ arguments. Findings of the Court
44 It should be recalled that, as stated in paragraph 145 of the contested judgment, the duty to provide assistance laid down in Article 24 of the Staff Regulations implies intervening with all necessary vigour in the presence of an incident incompatible with the orderly and smooth running of the service. Such intervention on the part of the administration must seek to ascertain the facts and to take the appropriate action in full knowledge of the matter (see, to that effect, order of 16 October 1997, Dimitriadis v Court of Auditors , C‑140/96 P, EU:C:1997:493, paragraph 31).
45 However, as the General Court correctly pointed out in paragraph 150 of the judgment under appeal, the administration cannot be required to conduct an administrative inquiry on the basis of mere allegations made by a member of staff (see, to that effect, judgment of 26 January 1989, Koutchoumoff v Commission , 224/87, EU:C:1989:38, paragraph 15).
46 As pointed out in paragraph 149 of the judgment under appeal, where there is sufficient prima facie evidence of the allegations made in a request for assistance, the administration is required to open an administrative inquiry in order to ascertain the facts and, having done so, to be able to take such measures of assistance as may be appropriate (see, to that effect, judgment of 26 January 1989, Koutchoumoff v Commission , 224/87, EU:C:1989:38, paragraph 16); it does not have a broad discretion as to whether it is appropriate to open and conduct such an administrative inquiry.
47 Therefore, even if, as the appellants maintain, and contrary to what is apparent from paragraph 191 of the judgment under appeal, the administration is required to provide assistance on its own initiative even where there are no exceptional circumstances, the fact remains that, as the appellants themselves acknowledge, the existence of sufficient prima facie evidence of the allegations made by the interested parties who complain that they have been the victims of psychological harassment is a pre-condition for the administration to be required to open an administrative inquiry in order to ascertain the facts and having done so, to be able to take such measures of assistance as may be appropriate.
48 As regards the appellants’ argument that, in the present case, the ECDC administration, after receiving a considerable number of alerts from the members of staff concerned and from other members of staff, ought to have taken ‘some action’, even in the absence of a formal request for assistance, it must be observed that, as is apparent, inter alia, from paragraphs 40, 41 and 47 of the judgment under appeal, and set out in paragraphs 25, 26 and 29 of the present judgment, the Director asked HV and HW to complete an additional information form, but that, in the absence of a reply from HV and HW to that request or information on concrete, non-anonymised situations, that director believed that she did not have prima facie evidence of harassment by the Head of Unit against them which would justify launching a formal investigation.
49 Accordingly, the Director was fully entitled to conclude, in accordance with the case-law referred to in paragraphs 44 and 45 of the present judgment, that she was not required to launch an administrative inquiry.
50 Consequently, in so far as the General Court held, in essence, in paragraphs 196, 197 and 202 to 204 of the judgment under appeal, read together, that, in the absence of sufficient allegations and evidence indicating that there was possible harassment capable of justifying launching an administrative inquiry into the appellants’ situation, the ECDC’s failure to respond appropriately to the Head of Unit’s behaviour towards them has not been established, the first ground of appeal, alleging that the General Court erred in holding that the administration is required to provide assistance on its own initiative only in exceptional circumstances, is ineffective.
51 That ground of appeal must therefore be dismissed. The second ground of appeal Arguments of the parties
52 The appellants maintain that, in any event, there were, in the present case, factors which ought to have prompted the ECDC to take the necessary action, in accordance with the duty to provide assistance laid down in Article 24 of the Staff Regulations, and in compliance with the ECDC’s internal rules, even if the ECDC were required to provide such assistance on its own initiative only in exceptional circumstances. In concluding that that was not the case, the General Court erred in the legal characterisation of the facts and distorted the case file.
53 The General Court erred in holding that most of the evidence concerning the appellants’ situation, referred to in the judgment under appeal, was not proven and could not be used as a basis for alleging that the ECDC ought to have taken measures of assistance.
54 According to the appellants, while they did not reply to the request for additional information sent to them by the Director on 30 June 2015, that was because, as is apparent from the file, they were not in a position to do so on account of their state of health.
55 In any event, several factors cited by the General Court demonstrate that the appellants were victims of harassment by the Head of Unit. Therefore, those factors implied a duty to provide assistance.
56 The appellants conclude on that point, asserting that not only were there exceptional circumstances as a result of which they could not reply to the request for information of 30 June 2015, but that the ECDC already had the information required in order to decide to launch an administrative inquiry and that the General Court distorted the file by failing to take it into account.
57 The ECDC argues that that ground of appeal must be rejected. Findings of the Court
58 As regards the ground of appeal alleging an error in the legal characterisation of the facts and distortion of the file, on the ground that, even if the ECDC were required to provide assistance under Article 24 of the Staff Regulations on its own initiative only in exceptional circumstances, there was evidence which ought to have prompted it to take the necessary action in accordance with the duty to provide assistance referred to in Article 24, and in compliance with the ECDC internal rules, it should be recalled that, while the classification for legal purposes of an act or a measure by the General Court is a question of law which may be raised in an appeal (judgment of 11 May 2023, Commission v Sopra Steria Benelux and Unisys Belgium , C‑101/22 P, EU:C:2023:396, paragraph 47), it is apparent from Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal lies on points of law only and that the General Court therefore has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The assessment of the facts and evidence does not, save where the facts or evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal. Such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence. Where an appellant alleges distortion of the evidence by the General Court, he or she must, under the provisions referred to above and Article 168(1)(d) of the Rules of Procedure of the Court of Justice, indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in his or her view, led to such distortion (judgment of 22 June 2023, YG v Commission , C‑818/21 P, EU:C:2023:511, paragraphs 31 and the case-law cited).
59 Furthermore, under the second sentence of Article 170(1) of the Rules of Procedure, the subject matter of the proceedings before the General Court may not be changed in the appeal. In addition, to allow a party to put forward for the first time before the Court of Justice a ground for complaint which it did not raise before the General Court would be to authorise it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court. In an appeal, the jurisdiction of the Court of Justice is thus confined to examining the assessment by the General Court of the pleas and arguments discussed before it (judgment of 22 June 2023, YG v Commission , C‑818/21 P, EU:C:2023:511, paragraph 34 and the case-law cited).
60 In that regard, in so far as the appellants maintain that the General Court erred in finding that most of the evidence concerning their situation, referred to in the judgment under appeal, was not proven and could not be used a basis for alleging that the ECDC ought to have taken measures of assistance, it should be noted that, by such an argument, the appellants are challenging the General Court’s assessment of the facts and evidence, which, save where the facts and evidence are distorted, does not constitute a point of law which is subject, as such, to review by the Court of Justice on appeal, and are seeking to obtain from the Court of Justice a new assessment of those facts and evidence.
61 As regards HV, while the appellants rely on a distortion of the evidence referred to in paragraphs 8, 20, 22, 28, 32, 34 and 37 of the judgment under appeal, they have nevertheless failed to indicate precisely what that distortion consists of.
62 As regards HW, while it is true that it is apparent from minutes attached to the General Court’s file that a meeting held in 2015 on the initiative of the ECDC Staff Committee was convened to discuss with the Director the issue of the Head of Unit’s behaviour towards a number of members of staff, the fact that it was observed, in paragraph 196 of the judgment under appeal, that there was no evidence that the harassment situation alleged by HW was discussed at the meetings held in May and June 2015, cannot constitute a distortion of the evidence in the file. Contrary to the appellants’ assertions, that observation in no way distorts the evidence found in those minutes, which do not mention HW.
63 In addition, the fact that, in a reply provided to the General Court, a former member of the Staff Committee who assisted HW during a meeting with the former Director indicates that the former Director listened with a great deal of empathy and understanding when HW informed the former Director that she had been treated unfairly and in an impolite manner by the Head of Unit, is not capable of constituting, contrary to the appellants’ claim, a distortion of the facts and evidence, given the finding in paragraph 196 of the judgment under appeal that the appellants had failed to adduce evidence that HW’s situation had been discussed during the exchanges which HW may have had with the former Director in 2014 in the context of the 2013 appraisal exercise, nor does it describe the allegations made in respect of that situation during those exchanges. In that regard and in any event, while the fact that HW informed the former Director of the unfair and impolite treatment towards her by the Head of Unit does, it is true, indicate that allegedly unfair and impolite behaviour was addressed in that context, it does not, however mean that the same may be said as regards HW’s situation concerning possible harassment.
64 It follows that the appellants’ arguments alleging distortion of the clear sense of the facts and evidence by the General Court must be rejected as being unfounded.
65 As to the appellants’ argument that there were exceptional circumstances as a result of which they were unable to respond to the Director’s request for information of 30 June 2015, it is not disputed that, as referred to in paragraph 192 of the judgment under appeal, it was not even alleged before the General Court that the appellants were in an exceptional situation which required the confidential counsellors to contact the competent authorities without their consent, in order to request that an investigation be opened or that other action be taken. In those circumstances, it must be observed that that argument seeks, moreover, to widen the dispute from that which came before the General Court, since it would ultimately result in an examination, in the context of the appeal, of whether the appellants were in such an exceptional situation.
66 In the light of the case-law referred to in paragraph 59 of the present judgment, such an argument must be rejected as being inadmissible.
67 Having regard to all the foregoing, the second ground of appeal must be rejected as being in part inadmissible and in part unfounded.
68 Since none of the grounds raised in support of the appeal has been upheld, the appeal must also be dismissed. Costs
69 In accordance with Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs.
70 Under Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
71 Since the ECDC has applied for costs and the appellants have been unsuccessful, the appellants must be ordered to pay the costs. On those grounds, the Court (Sixth Chamber) hereby: 1. Dismisses the appeal; 2. Orders HV and HW to pay the costs. Bay Larsen Xuereb Kumin Delivered in open court in Luxembourg on 7 December 2023. A. Calot Escobar L. Bay Larsen Registrar Vice-President, acting as the President of the Chamber * Language of the case: English.