CW v Parliament (Civil service - Officials - Psychological harassment : Judgment) [2017] EUECJ T-742/16 (16 May 2017)

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(Civil service - Officials - Psychological harassment - Article 12a of the Staff Regulations - Obligation to provide assistance - Internal Rules for the Advisory Committee on Harassment and its Prevention in the Workplace - Article 24 of the Staff Regulations - Request for assistance - Rejection - Decision rejecting the complaint - Independent content - Premature nature of the complaint - None - Role and powers of the Advisory Committee on Harassment and its Prevention in the Workplace - Option for an official to approach the Committee - Non-contractual liability)

CW, official of the European Parliament, residing in Brussels (Belgium), represented by C. Bernard-Glanz, lawyer,

European Parliament, represented by E. Taneva and M. Dean, acting as Agents,

ACTION pursuant to Article 270 TFEU seeking, first, annulment of the European Parliament’s decision of 8 April 2013 refusing to grant the request for assistance, submitted by the applicant because of the psychological harassment to which she felt she had been subjected by her superiors, and annulment of the decision of the Secretary-General of the Parliament of 23 October 2013 rejecting her complaint of 9 July 2013 and, second, damages to make good the loss the applicant is alleged to have suffered,

composed of I. Pelikánová, President, P. Nihoul and J. Svenningsen (Rapporteur), Judges,

1 On 1 October 2008, CW was appointed as a probationary official of the Parliament and was assigned to the Czech Interpretation Unit (‘the Unit’). She was established in her post on 1 July 2009.

2 From 2008 to 2010, the applicant and Ms H. were colleagues in the Unit. When the post of Head of Unit became available, both women submitted applications. At the end of the selection procedure, the applicant’s application was rejected in favour of the application submitted by Ms H. (‘the Head of Unit’), who was appointed Head of Unit on 17 May 2010.

3 Relations between the applicant and the Head of Unit deteriorated, especially after a meeting of the Unit held on 23 May 2011.

4 On 19 February 2012, the applicant explained in an e-mail to the Chairman of the Advisory Committee on Harassment (‘the Advisory Committee on Harassment’) that, ‘[s]ince February 1, 2012, [she had] been exposed to an enormous pressure exerted by [her] two superiors, [that she was] in a very difficult situation and [that she wished] to seek professional help in the matter’. Although the applicant had asked the Chairman of the Committee in that e-mail to let her know if they could meet as soon as possible, the Chairman of the Committee did not reply to that e-mail in writing. By e-mail of 21 February 2012, the applicant then contacted Ms W. (the secretary of the Committee), who, by e-mail sent the following day, replied that the Chairman of the Committee was in the process of moving to a new office, which might explain why he was not receiving his e-mails, and suggested that the applicant get in touch with Ms E-H. or Ms R., both of whom were members of the Advisory Committee on Harassment and were copied into the secretary’s e-mail. Without having contacted either of those members directly, the applicant replied, by e-mail of 22 February 2012 with the Chairman of the Committee also in copy, informing Ms W. that she wished to ask the Chairman of the Committee for advice as soon as possible. Ms W. then assured the applicant that her message would be forwarded to the Chairman of the Committee as soon as possible. According to the applicant, no follow-up action was taken by the Chairman of the Committee with regard to those e-mails.

5 On 29 March 2012, the applicant received a note from the Director of the Directorate for Interpretation (‘the Director’) of the DG (Directorate-General) for Interpretation and Conferences in the General Secretariat of the Parliament informing her that, given her recent state of health, she was relieved of tasks secondary to her duties as an interpreter. From that time onwards, the applicant performed only her main duties, namely, interpretation in Brussels (Belgium) and in the two other workplaces of the Parliament. She also continued to participate in a Polish language course. In addition, following a meeting held at the beginning of June 2013, the Director confirmed, by a note of 11 June 2013 addressed to the applicant, a copy of which was sent to the Head of Unit, that the applicant was henceforth allowed to undergo vocational training in the interest of the service.

6 On 4 July 2012, a new Chairman of the Advisory Committee on Harassment (‘the new Chairman of the Committee’) was appointed and, according to the Parliament, the applicant was subsequently invited to contact the Committee on several occasions.

7 On 5 February 2013, in accordance with Article 90(1) of the Staff Regulations, the applicant submitted a request to the appointing authority of the Parliament (‘the appointing authority’) for assistance under Article 24 of those regulations (‘the request for assistance’). In support of that request, the applicant provided a detailed description of 14 incidents or events which, in her view, whether taken individually or cumulatively, constituted psychological harassment by her Head of Unit and her Director. The applicant also stressed that the list of incidents was not exhaustive and that ‘[t]he institution, to which a formal request for assistance and a complaint [had] been presented [by CQ], [was] fully aware of the situation and [had] given a mandate to the Director-General [of the DG for Interpretation and Conferences] to investigate the matter’. She also asserted that her alleged harassment took various forms: ‘deceptive or misleading communication, refusal to communicate, degrading comments, attempts at public humiliation, defamation, pressure, bullying and threats, or unjustified depriving of professional tasks’. All of those events had led to ‘burnout’, as a result of which she was put on long-term sick leave.

8 By the request for assistance, in which she regretted the fact that, despite her demands and reminders, neither the Chairman of the Advisory Committee on Harassment nor any other member of that Committee had contacted her following her e-mail of 19 February 2012, the applicant asked the Parliament to reassign the Head of Unit or the Director to another post or to adopt a decision that would have the equivalent effect of protecting her from their abuses, and, in addition, to open a full-scale inquiry into the management methods and conduct of her superiors.

9 In a letter of 5 March 2013, the Director-General of the DG for Personnel (‘the Director-General for Personnel’), in his capacity as appointing authority, while regretting that the first contact which the applicant had tried - in vain - to establish with the Advisory Committee on Harassment in February 2012 ‘[had] not [led] to a full-scale examination of [her] complaints’, recommended that the applicant approach that committee, which was best placed to determine whether the facts she described could be considered psychological harassment. In order to facilitate that process, the contact details of the new Chairman were provided in that letter. However, in a letter of reply of 11 March 2013, the applicant’s legal advisor first of all observed that she had already ‘exhausted this option’, as she had ‘tried to complain to the [Advisory C]ommittee [on Harassment]’, and then explained that the applicant had lodged a request for assistance pursuant to Article 24 of the Staff Regulations precisely because the Committee, to whom she had turned in the first place, had failed to perform the duty assigned to it under the Internal Rules for the Advisory Committee on Harassment and its Prevention in the Workplace with a view to implementing Article 12a of the Staff Regulations (‘the Internal Rules on harassment’). The applicant’s legal advisor stated that, against that background, he ‘[found the] recommendation [of the Director-General for Personnel] shameful and unacceptable’.

10 By a decision of 8 April 2013, notified to the applicant on 10 April 2013, the appointing authority (the Director-General for Personnel), after examining the request for assistance and taking account of the information relating to the situation in the Unit of which it had become aware during its examination of a complaint of harassment submitted by a colleague from that Unit, CQ (see judgment in CQ v Parliament, F-12/13, EU:F:2014:214), refused to grant the applicant’s request for assistance (‘the decision refusing assistance’).

11 In that connection, the appointing authority expressed its regret at the applicant’s refusal to approach the Advisory Committee on Harassment, as that refusal meant that the appointing authority had been deprived of what would for it have been a ‘valuable opinion on [the applicant’s] allegations, [given that the Advisory] Committee [on Harassment was] best placed to [conduct] the full-scale inquiry that [the applicant was requesting]’.

12 However, notwithstanding the fact that the Advisory Committee on Harassment had not been approached, the appointing authority decided, after examining the copious documents submitted by the applicant and after acquiring information on the situation in the Unit from another investigation carried out in that Unit by the Committee, to refuse to grant the applicant’s request for assistance. Examining each of the events at issue set out by the applicant in her request, the appointing authority considered that they were minor, had already been mentioned in the context of the applicant contesting her staff report for 2011, or constituted legitimate decisions or conduct on the part of the appointing authority or the management in response to the applicant’s own conduct.

13 On 9 July 2013, the applicant submitted a complaint under Article 90(2) of the Staff Regulations against the decision refusing assistance. By decision of 23 October 2013, the appointing authority (the Secretary-General of the Parliament) rejected the complaint for being, at that stage, premature (‘the decision rejecting the complaint’). In that regard, the appointing authority emphasised in particular that it was not required to adopt measures of assistance under Article 24 of the Staff Regulations unless the facts giving rise to the request had been established and that, within the Parliament, it was for the Advisory Committee on Harassment to carry out inquiries in cases of alleged harassment. However, the applicant had refused to submit her case to the Committee for review.

14 Reminding her that, according to case-law, the existence of difficult, even conflictual relations between an official and his superior does not, in itself, constitute proof of psychological harassment (‘the case-law reference at issue’), the appointing authority informed the applicant that it had asked the new Chairman of the Committee, in office since 4 July 2012, to contact her to explain the procedure before the Advisory Committee on Harassment so as to enable her to decide, in the light of the information provided, whether or not to follow that procedure.

15 On 15 January 2014 the new Chairman of the Committee contacted the applicant. They met on 20 January 2014. In an e-mail sent that same day, the new Chairman of the Committee confirmed that it would be possible for the applicant to approach the Advisory Committee on Harassment informally ‘whenever [she might] find it appropriate’.

The original proceedings before the Civil Service Tribunal leading to the judgment of 26 March 2015 in CW v Parliament (F-124/13)

16 By application received by the Registry of the Civil Service Tribunal of the European Union on 19 December 2013, registered as Case F-124/13, the applicant brought an action, claiming that the Tribunal should:

- award her a sum of EUR 50 000 by way of compensation for the non-material damage she has suffered and reimburse her, by way of compensation for the material damage suffered, a quarter of the amount of the medical fees incurred as a result of the deterioration of her state of health, together with the statutory interest accrued on the total of those two amounts until payment of that sum;

17 The Parliament, for its part, contended that the Tribunal should dismiss the action as unfounded and order the applicant to pay the costs.

18 In support of her action, the applicant formally raised two pleas in law as grounds for the annulment of the decision refusing assistance and the decision rejecting the complaint. The first plea in law was in three parts, alleging: (i) manifest errors of assessment and related infringement of Article 12a(3) of the Staff Regulations; (ii) misuse of power, and (iii) breach of the duty of care, breach of the duty to provide assistance enshrined in Article 24 of the Staff Regulations and infringement of Article 31(1) of the Charter of Fundamental Rights of the European Union. The second plea in law was in two parts, alleging: (i) breach of the duty to provide assistance enshrined in Article 24 of the Staff Regulations and (ii) infringement of the principle of sound administration, breach of the duty of care and infringement of Article 31(1) of the Charter.

19 By judgment of 26 March 2015, CW v Parliament (F-124/13, ‘the original judgment’, EU:F:2015:23), the Tribunal dismissed the action as unfounded and ordered the Parliament to pay half of the costs incurred by the applicant in addition to its own costs.

20 In that connection, the Tribunal found, in paragraph 33 of the original judgment that ‘the statement of reasons given in the decision rejecting the complaint differ[ed] from the statement of reasons given in the decision refusing assistance, with the result that the claim for annulment of the decision rejecting the complaint d[id] not lack independent content, and it [wa]s therefore necessary for the Tribunal to give a ruling on the substance of that claim’; [that] ‘the decision rejecting the complaint clarifie[d] certain aspects of the statement of reasons for the decision refusing assistance [and that c]onsequently, in view of the evolving nature of the pre-litigation procedure, the statement of reasons for the decision on the complaint must also be taken into account in the review of legality of the decision refusing assistance, since that statement of reasons is deemed to cover the latter act also (see judgment in Mocová v Commission, F-41/11, EU:F:2012:82, paragraph 21).’

21 Ruling on the first plea and following an examination in paragraphs 49 to 125 of the original judgment of the various incidents detailed by the applicant in her request for assistance, the Tribunal held, inter alia, in paragraphs 117 and 118 of that judgment and as part of an overall examination of the facts, that ‘the events put forward by the applicant, which it has examined in isolation, (“the events at issue”) certainly reveal[ed] a conflictual relationship in a difficult administrative context, but are not evidence of acts of an abusive or deliberate nature, the documented statements and behaviour showing at most a clumsy management of the conflictual situation by the applicant’s superiors, and not a deliberate intention to act abusively toward her …,’ and that ‘in particular, in view of her own conduct - stubborn, intransigent and, on occasion, bordering on insubordinate - the applicant [could] not claim not to understand the reasons for the decisions adopted by her superiors’. In that context, the Tribunal emphasised, in paragraph 118 of that judgment that ‘the concepts of psychological harassment and the duty to provide assistance described in Articles 12a and 24 of the Staff Regulations cannot be extended to allow the supposed victim systematically to challenge every hierarchical authority or to consider himself free from the obligations explicitly laid down in the Staff Regulations, such as those relating to arrangements for leave or the obligation to cooperate sincerely with his superiors’.

22 In paragraph 126 of the original judgment, the Tribunal concluded that ‘the Parliament did not make a manifest error of assessment or misuse its power in finding, in the decision refusing assistance, that, in view of the evidence brought to its attention by the applicant and the evidence connected with her 2011 staff report, the conduct complained of could not be regarded as psychological harassment within the meaning of Article 12a of the Staff Regulations’.

23 Ruling on the second plea, the Tribunal held, inter alia, in paragraph 138 of the original judgment, that ‘the submission of a request for assistance pursuant to Article 24 of the Staff Regulations d[id] not require the person concerned, even where the request for assistance relate[d] to a case of harassment, to approach the Advisory Committee on Harassment created by the Parliament on the basis of Article 12a of the Staff Regulations beforehand, irrespective of the fact that the appointing authority may, under Article 14 of the Internal Rules on harassment, decide in certain situations to instruct the Advisory Committee on Harassment to conduct an inquiry into the supposed harassment that has been brought to the appointing authority’s attention’.

24 Next, in paragraph 147 of the original judgment, the Tribunal held that ‘in the circumstances of the present case, in which the conducting of a new inquiry would have involved questioning the same actors that had already been heard in the course of the inquiry carried out following CQ’s complaint of harassment, regarding events at least some of which were identical to those referred to by CQ and which would not necessarily have shed any further light in relation to the already sufficiently exhaustive evidence submitted to the appointing authority by the applicant, [it] consider[ed] that, in not ordering the launching of a “a full-scale inquiry into [the] management methods [of her Head of Unit and the Director] and [their] behaviour towards [the applicant]”, the Parliament did not make a manifest error of assessment in its choice of measures and methods for applying Article 24 of the Staff Regulations, in respect of which it has a broad discretion, and, accordingly, did not infringe that provision’.

25 Having ruled thus as regards the legality of the decision, the Tribunal pointed out, in paragraph 151 of the original judgment, that ‘while in the decision refusing assistance the request for assistance was refused on the merits following a detailed examination of the events at issue mentioned by the applicant, the complaint, by contrast, was rejected chiefly on the ground that it was premature since, in view of the applicant’s desire to have a full-scale inquiry conducted, it was for her to address the Advisory Committee on Harassment beforehand, that being the appropriate body to conduct an inquiry of that kind’.

26 In that regard, the Tribunal held, in paragraphs 152 and 153 of the original judgment, first, that ‘referral to the Advisory Committee on Harassment [wa]s not a prerequisite for submitting a request to the appointing authority for assistance on the basis of Article 24 of the Staff Regulations and, where appropriate, a complaint if that request is refused’ and, second, that ‘a request under Article 90(1) of the Staff Regulations [could] be refused on the ground of being premature. However, that [wa]s not the case for a complaint, in respect of which the three-month limitation period laid down in Article 90(2) of the Staff Regulations is still running in any event, notwithstanding the possibility of the complainant approaching an advisory committee on harassment such as the one in place at the Parliament’.

27 The Tribunal then held, in paragraph 154 of the original judgment, that ‘in rejecting the complaint on the ground that it was, allegedly, premature in so far as the applicant should first have relied on the Advisory Committee on Harassment, the appointing authority based its decision on an incorrect ground which could be such as to mislead staff members as to the respective competences and responsibilities of the Advisory Committee on Harassment and the appointing authority in the area of psychological harassment’.

28 However, the Tribunal took the view, in paragraph 155 of the original judgment, that an incorrect ground of that kind was not such as to undermine the legality of the decision rejecting the complaint or the decision refusing assistance, since ‘in reminding the applicant in [that] decision … that, according to case-law, the existence of difficult, even conflictual relations between an official and his superiors does not, in itself, constitute proof of psychological harassment [the case-law reference at issue], the appointing authority sought to endorse, with regard to the substance, albeit in the alternative, the detailed examination which had been carried out in the decision refusing assistance, or, at the very least, did not seek to undermine the results of that examination [as] … the Parliament contended, in particular at the hearing.’

29 As it had rejected the claim for annulment and there was therefore no fault on the part of the administration such as to give rise to its liability, the Tribunal rejected the claim for damages and thus dismissed the action in Case F-124/13 in its entirety.

30 However, in paragraph 162 of the original judgment, it held that an order that the Parliament should bear its own costs and pay half of the costs incurred by the applicant ‘in view of the breakdown in the functioning of the Committee on the one hand, resulting in a breach of the Internal Rules on harassment, the failure to take responsibility for the applicant’s request addressed to the former Chairman of that committee, and the inadequate statement of the main reasons for the decision rejecting the complaint on the other’.

The appeal and the judgment of 27 October 2016, CW v Parliament (T-309/15 P)

31 By her appeal lodged on 5 June 2015, pursuant to Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the applicant sought, in essence, (i) the setting aside of the original judgment, and (ii) the upholding of the claims made at first instance in the proceedings in Case F-124/13.

32 By judgment of 27 October 2016, CW v Parliament (T-309/15 P, not published, ‘the judgment on appeal’, EU:T:2016:632), the General Court (Appeals Chamber) set aside the original judgment, referred the case to a chamber of the Court other than that which ruled on the appeal and reserved the costs.

33 In that regard, the Court noted, in the judgment on appeal, that, as the Civil Service Tribunal had observed in the original judgment, ‘in the decision refusing assistance, the appointing authority (the Director-General for Personnel) took a position in relation to the various events which the appellant had invoked as constituting psychological harassment within the meaning of Article 12a of the Staff Regulations. By contrast, the appointing authority (the Secretary-General of the Parliament) rejected the administrative complaint, considering it to be premature, as the appellant had not yet approached the Advisory Committee concerning the invoked psychological harassment’.

34 The Court also observed in that paragraph of the judgment on appeal that ‘that decision also include[d] the case-law reference at issue, according to which the fact that difficult, even conflictual relations exist between an official and his superiors does not, in itself, constitute proof of psychological harassment (judgment of 16 May 2012, AF v Commission, F-61/10, EU:F:2012:65, paragraph 96)’. It therefore concluded that, ‘as the two decisions therefore differed with regard to their statement of reasons, the Civil Service Tribunal was correct to consider that the claim for annulment directed against the decision rejecting the complaint did not lack independent content and that it was therefore necessary to give a ruling on the substance of that claim’.

35 Observing, inter alia, that the decision rejecting the complaint does not make any explicit reference to the decision refusing assistance, the Court held, in paragraph 37 of the judgment on appeal, that ‘the case-law reference at issue [appearing in the decision rejecting the complaint] cannot in any way support the conclusion, forming the subject matter of the decision refusing assistance, that, in the present case, the appellant had not been a victim of psychological harassment’.

36 The Court then found, in paragraph 38 of the judgment on appeal, that ‘it [was] apparent from the decision rejecting the complaint that the appointing authority considered that, as no inquiry had been conducted by the Advisory Committee on Harassment and the facts had therefore not been established, the complaint was premature’. It went on to hold that ‘the case-law reference at issue was merely intended to support that conclusion by explaining that, without an inquiry, the appointing authority could not take a position on whether psychological harassment had occurred’ and that it had therefore to be ‘held that [in the decision rejecting the complaint] the appointing authority to whom the complaint was made did not take any definitive position on the existence of such psychological harassment’.

37 Accordingly, the Court concluded, in paragraph 39 of the judgment on appeal, that ‘the Civil Service Tribunal distorted the sense of the decision rejecting the complaint and erred in law in considering, incorrectly, in paragraphs 33 and 155 of the [original judgment] that (i) by that decision, the appointing authority [had taken] a position on whether psychological harassment had occurred and [had] sought to endorse, with regard to the substance, albeit in the alternative, the detailed examination which had been carried out in the decision refusing assistance, or, at the very least, [had] not [sought] to undermine the results of that examination, and (ii) in so far as it was based on the incorrect ground concerning the supposedly premature nature of the complaint, such a ground was not capable of undermining the legality of the decision rejecting the complaint or that of the decision refusing assistance’.

38 As the Court did not consider that it was able to take a position on the claim for damages, inter alia, it held, in paragraph 42 of the judgment on appeal, that the state of the proceedings did not permit a decision within the meaning of Article 4 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137).

39 Accordingly, it decided to refer the case to a chamber other than that which ruled on the appeal so that the Court could rule at first instance on the action originally brought before the Civil Service Tribunal by the applicant. The action was registered as Case T-742/16 RENV.

40 Pursuant to Article 90 of the Rules of Procedure of the General Court, the Court requested the parties, in their observations under Article 217(1) of the Rules of Procedure, applicable by analogy to the present proceedings after referral back, to set out their views, in the light of paragraph 27 of the judgment on appeal and the case-law cited in paragraph 32 of the judgment of 21 September 2011, Adjemian and Others v Commission (T-325/09 P, EU:T:2011:506), on the circumstances in which a decision rejecting a complaint may replace the original decision adopted by the administration.

41 In that connection, the parties were asked, in particular, to indicate whether or not, in the present case, the decision rejecting the complaint could be considered to have replaced the decision refusing assistance and whether or not any annulment of the decision rejecting the complaint should, in the light of paragraphs 35 to 39 of the judgment on appeal, automatically entail the annulment of the decision refusing assistance. Finally, they were asked to explain whether, in the event of the annulment of the decision rejecting the complaint only, placing the administration back in the position it was in at the time the unlawful act was committed and obliging it to decide afresh on the complaint, there was still a need to rule on the claim for annulment of the decision refusing assistance.

42 Following the lodging by the applicant and defendant, on 14 and 16 December respectively, of their observations under Article 217(1) of the Rules of Procedure and of their replies to the questions of the Court, the written phase of the referral back procedure was brought to a close. Furthermore, having regard to the fact that no request for a hearing was submitted by the main parties within three weeks after service of notification of the close of the written part of the procedure, the Court decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of its Rules of Procedure.

43 In her observations of 14 December 2016, the applicant claims that the Court should:

- annul the decision rejecting the complaint and, so far as necessary, the decision refusing assistance;

- order the Parliament to pay the applicant an amount of EUR 50 000, as compensation for the non-material damage suffered, together with interest at the legal rate until payment in full has been made;

- order the defendant to pay the applicant a quarter of the medical expenses incurred in connection with the deterioration of her state of health, as compensation for the material damage suffered, together with interest at the legal rate until payment in full has been made;

- order the defendant to pay all the costs, both of the proceedings at first instance before the Civil Service Tribunal and of the proceedings on appeal, and of the proceedings at first instance before the Court after referral back, and, in the event of the rejection of the claim for annulment, order the defendant to pay the costs of the proceedings on appeal and its own costs and half of the costs incurred by the applicant in the original proceedings at first instance before the Civil Service Tribunal and in the present proceedings at first instance before the Court after referral back.

44 In its observations of 16 December 2016, the Parliament contends that the Court should:

45 In her observations of 14 December 2016, the applicant argued that, in the present case, the decision rejecting the complaint replaced the decision refusing assistance, and that, in the decision rejecting the complaint, the appointing authority rejected the request for assistance not because that request was not founded, but because no inquiry had been conducted and the facts were therefore not, or not yet sufficiently, established. Having regard to the voluminous file she submitted in support of her request for assistance which, the Civil Service Tribunal found, in paragraph 142 of the original judgment, could have led the appointing authority to take the view, in a spirit of openness inspired by its duty of care, that, to a certain extent, that evidence could constitute prima facie evidence of psychological harassment, the applicant considers that the appointing authority should have adopted measures in pursuance of its duty to provide assistance under Article 24 of the Staff Regulations. Thus, according to the applicant, it fell to the appointing authority to decide to open an administrative inquiry, which it could either have conducted itself or entrusted to the Advisory Committee on Harassment, in order to establish the facts and adopt preventive measures, such as measures to keep the applicant away from her alleged harasser.

46 While she made a formal claim for annulment of the decision rejecting the complaint and the decision refusing assistance, the applicant stated that, if the Court were to consider that, as she claimed, the decision rejecting the complaint replaced the decision refusing assistance, there would be no need for the Court to annul the decision rejecting the complaint.

47 In its observations of 16 December 2016, the Parliament essentially argued that the decision rejecting the complaint did not replace the decision refusing assistance and that, if the decision rejecting the complaint were annulled, there would no longer be any need for the Court to rule on the legality of the decision refusing assistance. In that regard, the Parliament takes the view that, if the Court were to annul the decision rejecting the complaint, it would have to be considered that, retroactively, the complaint had been impliedly rejected by a decision made four months after the complaint was lodged. Such an implied decision would constitute confirmation by the appointing authority of the decision refusing assistance. Thus, given that the Civil Service Tribunal had already, in the original judgment, found that decision to be lawful and that assessment had not been called into question by the applicant in the appeal, there was no need for the Court to assess the lawfulness of that decision again.

48 In that connection, it should be pointed out that, as the Court confirmed in paragraph 29 of the judgment on appeal, the decision rejecting the complaint has independent content, so that the claims for annulment of both the decision refusing assistance and the decision rejecting the complaint should be examined.

49 On that point, the Court, ruling as a court of appeal, held that, in the decision rejecting the complaint, the appointing authority did not intend to confirm the ground given in the decision refusing assistance, namely that the matters relied on by the applicant in support of her request for assistance did not fall within the definition of psychological harassment within the meaning of Article 12a of the Staff Regulations. The Court found that the appointing authority had merely rejected the complaint on the ground that it was premature. As regards the fate of the request for assistance whose rejection was the subject of that complaint, the Court observed that the appointing authority, when considering that complaint, did not take any position on whether or not psychological harassment within the meaning of Article 12a of the Staff Regulations had occurred and that it sought neither to confirm or deny the analysis of the facts given in the decision refusing assistance, because in the end it did not re-examine that decision in the light of the arguments set out by the applicant in the complaint.

50 In the absence of any re-examination of the judgment on appeal under Article 256(2) TFEU or any challenge in that regard by the parties in their observations lodged under Article 217(1) of the Rules of Procedure, it must be allowed, in the present case, that the findings of fact made in the judgment on appeal by the Court, ruling as a court of appeal, may be accepted as they are by the referral chamber ruling as a court of first instance.

51 It must therefore be found that, in the decision rejecting the complaint, the appointing authority did not take a position on the merits of the request for assistance, in particular on the question whether the matters relied on in support of that request fell within the definition of psychological harassment within the meaning of Article 12a of the Staff Regulations and whether they therefore warranted the adoption by the appointing authority of measures under the duty to provide assistance referred to in Article 24 of the Staff Regulations. In the decision rejecting the complaint, the appointing authority merely rejected the complaint on the ground that it was premature and suggested that the applicant approach the Advisory Committee on Harassment.

52 The Court finds, therefore, that, in the decision rejecting the complaint, the appointing authority did not in the end re-examine the decision refusing assistance in the light of the objections raised by the applicant in her complaint, even though an obligation to do so was incumbent on it in the pre-litigation procedure (see, to that effect, order of 28 January 1993, Piette de Stachelski v Commission, T-53/92, EU:T:1993:6, paragraph 16, and judgment of 21 May 2014, Mocová v Commission, T-347/12 P, EU:T:2014:268, paragraph 38), the Court of Justice having expressly held in that regard that the pre-litigation procedure is intended to compel the authority having control over the official to reconsider its decision in the light of any objections which that official may make (judgment of 21 October 1980, Vecchioli v Commission, 101/79, EU:C:1980:243, paragraph 31).

53 Regarding the ground for rejecting the complaint, the applicant argues that the appointing authority was wrong to criticise her for not having approached the Advisory Committee on Harassment on the ground that, within the Secretariat of the Parliament, inquiries into alleged cases of harassment are entrusted to that committee. Accordingly, she alleges that the ground given by the appointing authority for rejecting her complaint, namely, that it was premature because that committee had not been approached, is incorrect.

54 In that regard, clearly, referral to the Advisory Committee on Harassment is not a precondition for submitting a request to the appointing authority for assistance on the basis of Article 24 of the Staff Regulations with the appointing authority under Article 90(1) of the Staff Regulations. Moreover, it is true that a request under Article 90(1) of the Staff Regulations may be refused on the ground of being premature. However, that is not the case for a complaint, in respect of which the three-month limitation period laid down in Article 90(2) of the Staff Regulations is still running in any event, notwithstanding the possibility of the complainant approaching an advisory committee on harassment such as the one in place at the Parliament.

55 Accordingly, in rejecting the complaint on the ground that it was, allegedly, premature in so far as the applicant should first have relied on the Advisory Committee on Harassment, the appointing authority based its decision on an incorrect ground which could be such as to mislead staff members as to the respective competences and responsibilities of the Advisory Committee on Harassment and the appointing authority in the area of psychological harassment, given that, in so doing, it did not re-examine the decision refusing assistance in the light of the objections raised by the applicant in her complaint.

56 Accordingly, the claim for annulment of the decision rejecting the complaint must be upheld on that ground, without it being necessary to examine the other pleas in support of annulment relied on against that decision.

57 It must also be observed that, in the decision rejecting the complaint, the appointing authority departed from the analysis it made in the decision refusing assistance without considering it necessary, pursuant to Article 90(2) of the Staff Regulations, to re-examine the decision refusing assistance in the light of the objections made by the applicant in her complaint and without, therefore, taking a position as to whether the matters relied on in support of her request for assistance fell within the definition of psychological harassment within the meaning of Article 12a of the Staff Regulations.

58 Nonetheless, the annulment of the decision rejecting the complaint, establishing the final position of the appointing authority on conclusion of the pre-litigation procedure, has no impact on the lawfulness of the decision refusing assistance, since, in order for the Court to be able to examine the lawfulness of that decision in the framework of an action under Article 270 TFEU, it is also necessary for such an initial decision, adopted in response to a request under Article 90(1) of the Staff Regulations, to have been the subject of a pre-litigation procedure which complied with the requirements of Article 90(2) of the Staff Regulations. But, following the annulment of the decision rejecting the complaint, the decision refusing assistance, which has independent content, did not involve re-examination by the appointing authority under the pre-litigation procedure provided for by the Staff Regulations.

59 Thus, despite the fact, raised by the Parliament, that the Civil Service Tribunal had ruled on those decisions in paragraphs 49 to 127 and 133 to 150 of the original judgment and that the findings of that Tribunal had not been called into question in the context of the appeal, the Court cannot, in the present proceedings after referral back, rule as to whether the claim for annulment of the decision refusing assistance is well founded, failing any previous adoption of a position on the merits by the appointing authority under Article 90(2) of the Staff Regulations, with regard to that initial decision.

60 The annulment of the decision rejecting the complaint, which has independent content, has the consequence that the decision refusing assistance must now again be the subject of a proper pre-litigation procedure. In that regard, contrary to the Parliament’s argument in its observations of 16 December 2016, it cannot be retroactively considered that, because of that annulment, an implied decision rejecting the complaint lodged on 9 July 2013 was made at the end of the period of four months allowed to the appointing authority prescribed by the Staff Regulations, that is to say, on 9 November 2013. In the particular circumstances of the present case, under Article 266 TFEU and Article 90(2) of the Staff Regulations, such annulment entails, rather, that the appointing authority has to rule again on the complaint within four months from the date of delivery of the present judgment, on conclusion of a re-examination of the decision refusing assistance in the light of objections made by the applicant in her complaint (see, to that effect, as regards the annulment of a decision on a complaint, judgment of 12 January 1983, K v Council, 257/81, EU:C:1983:2, paragraph 20).

61 Having regard to the foregoing, the claim for annulment of the decision rejecting the complaint should be upheld and it must be held that, following the annulment of that decision, the claim for annulment of the decision refusing assistance is premature and, therefore, inadmissible.

62 In her observations of 14 December 2016 and notwithstanding the fact that, in the judgment on appeal, the Court had held, as the court of appeal, that the state of the proceedings did not permit a decision as regards in particular the claim for damages, the applicant essentially confined herself to referring to the matters which she mentioned in that connection in the application. She thus repeated before the Court her application for an order that the Parliament pay her a sum of EUR 50 000 by way of compensation for the non-material damage she claims to have suffered and pay her, in respect of material damage, one quarter of the medical expenses she incurred as a result of the deterioration in her state of health, with default interest on the whole sum.

63 The Parliament claims that the Court should reject the claim for damages as unfounded.

64 It must be recalled that, according to settled case-law, the annulment of an unlawful act, such as the decision rejecting the complaint, may constitute, in itself, appropriate and, in principle, sufficient compensation for any non-material harm which that measure may have caused. However, that would not be the case where the applicant shows that he has sustained non-material harm that can be separated from the illegality on which the annulment is based and that cannot be compensated in full by that annulment (see, to that effect, judgments of 6 June 2006, Girardot v Commission, T-10/02, EU:T:2006:148, paragraph 131; of 19 May 2015, Brune v Commission, F-59/14, EU:F:2015:50, paragraph 80, and of 16 July 2015, Murariu v EIOPA, F-116/14, EU:F:2015:89, paragraph 150).

65 In the present case, the non-material damage which the applicant alleges arises from the fact that the appointing authority erroneously failed to adopt measures of assistance to protect her and did not decide to refer her case to the Advisory Committee on Harassment or to an independent person or an ad hoc inquiry body. It is true that such damage is directly linked to the unlawfulness of the decision rejecting the complaint in which the appointing authority did not consider it necessary to re-examine the decision refusing assistance and, therefore, did not take a position as to whether the matters relied on in support of the request for assistance fell within the definition of psychological harassment within the meaning of Article 12a of the Staff Regulations, in a context in which, because of the annulment of the decision rejecting the complaint, it falls to the appointing authority to rule afresh on that complaint.

66 However, given that, on conclusion of that re-examination required by Article 90(2) of the Staff Regulations, it cannot be ruled out that the appointing authority might decide to confirm, expressly or impliedly, the decision refusing assistance, the Court considers that the non-material damage which the applicant alleges would not necessarily be compensated for fully by the annulment of the decision rejecting the complaint.

67 In those circumstances, the Court, assessing the non-material damage suffered by the applicant ex aequo et bono, considers that a sum of EUR 2000 constitutes appropriate reparation for the part of the non-material damage which is not fully compensated for by the annulment of the decision rejecting the complaint. As regards the applicant’s claim that default interest at the base rate of the European Central Bank (ECB) should be paid on the damages, if necessary, the Court finds that it should be granted and, for want of any indication of the date from which such default interest should begin to run, that the date of delivery of the present judgment should be taken as the relevant date (see, to that effect, judgments of 8 July 1998, Aquilino v Council, T-130/96, EU:T:1998:159, paragraph 39, and of 6 October 2015, CH v Parliament, F-132/14, EU:F:2015:115, paragraph 127).

68 As regards the material damage, it is clearly dependent on the finding that the conduct described in the request for assistance constitutes psychological harassment within the meaning of Article 12a of the Staff Regulations. Notwithstanding the findings of the Civil Service Tribunal in that regard in the original judgment, which were not called into question by the applicant in her appeal, the Court finds that the appointing authority, which has the task of examining the complaint afresh, must still take a position on the question whether or not, in relation to what had been held in the decision refusing assistance, that conduct falls within Article 12a of the Staff Regulations.

69 Accordingly, the claim for compensation for the alleged material damage is premature and must therefore be rejected, bearing in mind that, in any event, the opinions of medical experts, even if based on factors other than the description given to them by the official concerned of his working conditions, are not such as to establish, in themselves, the existence in law of harassment or of the institution’s negligence in the light of its duty to provide assistance. (judgment of 6 February 2015, BQ v Court of Auditors, T-7/14 P, EU:T:2015:79, paragraph 49).

- reject the claim for annulment of the decision refusing assistance as inadmissible;

- order the Parliament to pay the applicant, in respect of the non-material damage suffered, a sum of EUR 2000 with default interest from the date of delivery of the present judgment, at the rate fixed by the ECB for its main refinancing operations;

71 Under Article 219 of the Rules of Procedure, applicable by analogy to the present proceedings after referral back, the Court is to decide on the costs relating to the proceedings instituted before the Civil Service Tribunal and before it under Article 270 TFEU and to the proceedings on the appeal before the Court under Articles 9 to 12 of Annex I to the Statute of the Court of Justice of the European Union.

72 In that regard, under Article 134(1) of the Rules of Procedure, applicable mutatis mutandis to the procedure on appeal before the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

73 In the present case, it must be held that the Parliament is the unsuccessful party, both in the proceedings on appeal and in the proceedings after referral back. Accordingly, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant. As regards the expenses incurred in the original proceedings before the Civil Service Tribunal, it is appropriate to apply, by analogy, Article 134(1) of the Rules of Procedure and to decide that, since the Parliament should have been the unsuccessful party in the original proceedings, it must also be ordered to pay the costs incurred by the applicant in the original proceedings.

1. Annuls the decision of 23 October 2013 of the Secretary General of the European Parliament, acting as the appointing authority, rejecting CW’s complaint of 9 July 2013;

2. Rejects as inadmissible the application for annulment of the decision of the Parliament of 8 April 2013 rejecting the request for assistance made by CW;

3. Orders the Parliament to pay CW, in respect of non-material damage suffered, a sum of EUR 2000 with default interest from the date of delivery of the present judgment at the rate fixed by the European Central Bank (ECB) for its main refinancing operations;

5. Declares that the Parliament is to bear its own costs and orders it to pay those incurred by CW in the original proceedings before the Civil Service Tribunal in the action in Case F-124/13, in the proceedings on appeal in Case T-309/15 P and in the present proceedings after referral back in Case T-742/16 RENV.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> CW v Parliament (Civil service - Officials - Psychological harassment : Judgment) [2017] EUECJ T-742/16 (16 May 2017) URL: http://www.bailii.org/eu/cases/EUECJ/2017/T74216.html Cite as: ECLI:EU:T:2017:338, EU:T:2017:338, [2017] EUECJ T-742/16

Court of Justice of the European Communities (including Court of First Instance Decisions)