Case T‑371/22

Marco Montanari

v

EUCAP Sahel Niger

Judgment of the General Court (Ninth Chamber) of 17 July 2024

(Common foreign and security policy – EUCAP Sahel-Niger mission – Seconded national staff members – Psychological harassment – Rejection of a claim for compensation – Action for annulment – No interest in bringing proceedings – Inadmissibility – Non-contractual liability – Right to dignity – Articles 1 and 31 of the Charter of Fundamental Rights – Mediation procedure – Failure to send the mediator’s report – Failure to implement the mediator’s recommendations – Right to good administration – Article 41 of the Charter of Fundamental Rights – Duty to have regard for the welfare of officials – Non-material damage – Material damage – Causal link)

1. Common foreign and security policy – Jurisdiction of the EU judicature – Acts of staff management by a European Union civil mission – Acts concerning staff members seconded by the Member States – Acts aimed at responding to the needs of the mission in theatre – Inclusion

   (Art. 19(1) TEU; Arts 263, 268 and Art. 340, second para., TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Decision 2012/392/CFSP, Art. 7(1) and (2))

   (see paragraphs 44-49)

2. Actions for damages – Autonomy in relation to the action for annulment – Limits – Action seeking the same outcome as the action for annulment – Inadmissibility

   (Arts 263, 268 and Art. 340, second para., TFEU)

   (see paragraphs 61-63)

3. Actions for damages – Subject matter – Claim for compensation of damage not attributable to the defendant institution or body – Inadmissibility

   (Art. 268 TFEU)

   (see paragraph 70)

4. Actions for damages – Autonomy in relation to the action for annulment – Limits – Action for compensation of damage resulting from a definitive decision refusing to open an administrative investigation for harassment – Action for damages not seeking the withdrawal, repeal or amendment of the definitive decision – No delay in bringing the action for damages

   (Arts 263, 268 and Art. 340, second para., TFEU)

   (see paragraphs 91-98)

5. Actions for damages – Non-contractual liability – Limitation period – Limitation not constituting an absolute bar to proceeding

   (Art. 268 TFEU; Statute of the Court of Justice, Art. 46 and Art. 53, first para.)

   (see paragraph 105)

6. Non-contractual liability – Conditions – Unlawfulness – Sufficiently serious breach of a rule of law intended to confer rights on individuals – Condition not necessary in disputes involving staff members of civilian missions of the European Union – Scope – Applicability to national staff members seconded to a mission by the Member States

   (Arts 268, 270 and Art. 340, second para., TFEU; Staff Regulations of Officials, Arts 90 and 91)

   (see paragraphs 113-118, 225)

7. Common foreign and security policy – Civilian missions of the European Union – Staff – Action before the EU judicature – Action of a seconded national staff member – Applicability of certain provisions of the Staff Regulations – Whether permissible – Condition – Staff member placed, in the performance of his or her duties at theatre level, in a situation comparable to that of staff members seconded by the institutions, subject to the Staff Regulations

   (Charter of Fundamental Rights of the European Union, Art. 20; Staff Regulations of Officials, Art. 12a; Council Decision 2012/392/CSFP)

   (see paragraphs 123-129, 224)

8. Common foreign and security policy – Civilian missions of the European Union – Staff – Refusal to conduct an administrative investigation following complaints of psychological harassment of a staff member – Judicial review – Scope – Obligation to take into account the relevant factual context as a whole

   (Council Decision 2012/392/CFSP)

   (see paragraph 136)

9. Common foreign and security policy – Civilian missions of the European Union – Staff – Duty of the administration to provide assistance – Scope – Duty of the administration to examine requests for assistance concerning psychological harassment and to inform the requester of the decision taken on the request – Scope – Submission of prima facie evidence – Rejection of the applicant’s request that an administrative investigation be opened – Infringement of the duty to provide assistance

   (Charter of Fundamental Rights of the European Union, Art. 1 and Art. 31(1); Staff Regulations of Officials, Arts 12a and 24; Council Decision 2012/392/CFSP, Art. 6(2) and (3))

   (see paragraphs 137-141, 152, 159, 160, 178-179, 194-200, 214-217, 219, 223, 231, 267-269)

10. Common foreign and security policy – Civilian missions of the European Union – Staff – Request for assistance concerning alleged psychological harassment – Principle of good administration – Scope – Decision to reject the request that an administrative investigation be opened after a mediator’s report – Failure to inform the complainant of the mediator’s findings and recommendation – Infringement of the right to be heard

    (Charter of Fundamental Rights of the European Union, Art. 41(2))

    (see paragraphs 251-261)

11. Non-contractual liability – Conditions – Causal link – Non-material damage resulting from the refusal of a civilian mission of the European Union to conduct an administrative investigation following complaints of psychological harassment of a staff member – Decision vitiated by infringements of the duty to provide assistance and the right to good administration – Existence of a causal link – Limits – Damage partially caused by the negligent behaviour of the staff member – Conflictual situation between the mission and the staff member partially attributable to that staff member

    (Art. 340, second para., TFEU)

    (see paragraphs 286-290, 310-320)

12. Non-contractual liability – Conditions – Damage – Duty of the injured person to show reasonable diligence in order to limit the extent of the damage

    (Art. 340, second para., TFEU)

    (see paragraphs 301, 302)

13. Non-contractual liability – Conditions – Causal link – Financial loss incurred by a staff member of a civilian mission of the European Union as a result of his resignation – Mission’s decision refusing to conduct an administrative investigation following complaints of psychological harassment – Mission’s actions not being the determining cause of the damage – Absence of a causal link in the circumstances of the particular case

    (Art. 340, second para., TFEU)

    (see paragraphs 303-308)

Résumé

The General Court, partially upholding an action for non-contractual liability brought by Mr Montanari, a former national staff member seconded to the European Union Common Security and Defense Policy (CSDP) mission in Niger (‘the Mission’), ruled, for the first time, on whether the actions of its Civilian Operation Commander (COC), who is hierarchically attached to the European External Action Service (EEAS), are attributable to the Mission.

In April 2015, the applicant was seconded by the Italian Government to the Mission as a political advisor.

In March 2017, he filed a first complaint of harassment against the Head of the Mission’s Press and Public Information Office, followed by a second complaint against the latter and against the Head of Mission for unfair behaviour towards the authority of the Mission and gross negligence involving the duty to have regard for the welfare of officials.

In July 2017, the applicant requested the COC to open an investigation into harassment by the Head of Mission and his deputy. On the same day, the Head of Mission issued a warning to the applicant for disrespecting him at a meeting. On the initiative of the COC, a mediator responsible for examining the situation at first hand issued a report.

In November 2017, the Head of Mission rejected the applicant’s request for regularisation of an unauthorised absence and issued him with a second warning. The applicant repeated his request to the COC to open an investigation into harassment by the Head of Mission and his deputy.

By decision of 10 April 2018, the COC definitively rejected the applicant’s request to open an administrative investigation.

In that context, the applicant brought before the Court, on the one hand, an action for annulment of the Mission’s decision rejecting his claim for compensation for the material, physical and non-material damage resulting from psychological harassment and infringements of the right to good administration and the duty to have regard for the welfare of officials and, on the other hand, an action for damages.

Findings of the Court

As a preliminary point, as regards its jurisdiction, the Court recalls that, by Decision 2012/392, ( 1 ) the Mission was created to support the capacity building of Nigerien security actors in the fight against terrorism and organised crime. It consists primarily of staff seconded by Member States, Union institutions and the European External Action Service (EEAS). ( 2 ) Article 7(2) of Decision 2012/392 provides that the Member State, Union institution or the EEAS respectively are responsible for answering any claims linked to the secondment and for bringing any action against the staff member concerned.

First, however, as is clear from the case-law relating to provisions governing the activity of other missions covered by the common foreign and security policy and drafted in terms similar to those of Decision 2012/392, since staff members seconded by the Member States and those seconded by the EU institutions are subject to the same rules so far as concerns the performance of their duties at theatre level, the EU judicature has jurisdiction to review the legality of acts of staff management relating to staff members seconded by the Member States the purpose of which is to meet the needs of that mission at theatre level.

Second, the applicant raises the question of the legality of acts of staff management relating to operations at theatre level, and not questions linked to the secondment within the meaning of Article 7(2) of Decision 2012/392. Accordingly, the plea of lack of jurisdiction raised by the Mission is dismissed.

The Court then examined the various pleas of inadmissibility.

It recalls, inter alia, that an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest presupposes that the annulment of the measure in question is capable, in itself, of having legal consequences and that the action may thus, if successful, procure an advantage for the party who brought it. Furthermore, it is the applicant that must prove that it has an interest in bringing proceedings.

Moreover, according to settled case-law, the action for damages, based on the second paragraph of Article 340 TFEU, was introduced as an autonomous legal remedy. However, submissions seeking either annulment of the refusal of an institution, body, office or agency of the European Union to recognise a right to compensation which an applicant claims under Articles 268 and 340 TFEU, or that the Court find the obligation of the institution, body, office or agency in question to accept the existence of such a right, seek a declaration that the institution, body, office or agency in question is liable to compensation and must be dismissed as inadmissible, since the applicant does not, in principle, demonstrate an interest in submitting such a claim in addition to its claim for compensation.

In the present case, the Court rejects as inadmissible the applicant’s claim for annulment, finding that the applicant did not demonstrate an interest in seeking, in addition to his claim for damages, the annulment of the Mission’s decision rejecting his third claim for compensation.

Lastly, the Court dismisses one by one the pleas of inadmissibility raised by the Mission.

Thus, in the first place, the Court finds that the acts complained of (including the applicant’s exclusion from certain meetings and the warning issued to him) and the breaches attributed to the Mission by the applicant (including the failure to deal with his complaints and reports within a reasonable time) relate respectively to the exercise, by the Head of Mission and the COC, of the powers they derive from Decision 2012/392, and therefore to the Mission’s execution of its mandate, for which the latter must be held responsible under Article 13(4) of that decision.

In the second place, the Court emphasises that an action for damages must be declared inadmissible where it is actually aimed at securing the withdrawal, repeal or amendment of an individual decision which has become final and it would, if upheld, have the effect of nullifying in whole or in part the legal effects of that decision. Similarly, a claim for compensation which is formulated as an injunction and which is intended not to obtain damages for harm attributable to an unlawful act or an omission, but to amend the act at issue, must be rejected as inadmissible.

In the present case, it does not appear from the applicant’s written submissions that he seeks compensation in kind, whereby the Mission would have to commence a preliminary or disciplinary investigation against the Head of Mission and his deputy, which would be tantamount to seeking the annulment of the decision of 10 April 2018. Accordingly, the fact that that individual decision had become final cannot preclude the admissibility of the appeal.

Lastly, the Court finds that the plea of inadmissibility raised by the Mission and based on a five-year or four-year limitation period is not accompanied by sufficient details to assess its merits.

As regards the merits of the actions, the Court first recalls that the non-contractual liability of the European Union cannot be triggered unless the person who claims to have suffered loss or harm establishes the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals. Nevertheless, when it acts as an employer, the European Union is subject to greater liability, the finding of illegality on its own being sufficient for regarding as satisfied the first of the three conditions necessary for it to incur liability for damage caused to its officials and other staff members owing to an infringement of European Civil Service law, and it is not necessary to demonstrate the existence of a ‘sufficiently serious’ breach of a rule of law conferring rights on individuals. However, although national staff members seconded to the Mission by the Member States are not governed by the Staff Regulations, they are nevertheless subject to the same rules as those applicable to staff members seconded by the institutions of the European Union and whose situation is governed by the Staff Regulations, as regards the performance of their duties at theatre level. Consequently, the finding of illegality is sufficient to regard the first of the three conditions necessary for the liability of the European Union to be incurred in respect of damages caused to a national staff member seconded to the Mission in the course of the performance of his duties at theatre level as having been met.

In that context, examining in turn the breaches alleged by the applicant, the Court considers, in the first place, that the applicant is entitled to maintain that, by failing to conduct an administrative investigation following his allegations of psychological harassment, the Mission infringed Article 1 and Article 31(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 12a of the Staff Regulations.

To reach that conclusion, first as regards the applicability of the provisions of the Staff Regulations, and in particular Article 12a(3) thereof, which defines psychological harassment, the Court notes that, by virtue of the principle of equal treatment, it is required to apply to the applicant’s situation, by analogy, the provisions of the Staff Regulations relating to psychological harassment and the functional protection of officials and temporary or contract staff, as well as the case-law delivered on the basis of those provisions. In effect, the difference in situation between staff members seconded to the Mission by Member States and those seconded by the institutions cannot objectively justify that the former, when they perform their duties at theatre level and are then placed in a situation comparable to that of the latter, do not benefit from the same level and the same rules of protection against psychological harassment.

The Court further recalls that, when a request for assistance is made and it is accompanied by sufficient prima facie evidence of the alleged facts, it is the responsibility of the authority to which the request is made ( 3 ) to respond with the speed and solicitude required. It must take appropriate measures, in particular by having an administrative enquiry carried out, in order to establish the facts giving rise to the complaint, in collaboration with the person making the complaint, and, in the light of the results of the enquiry to adopt the necessary measures, such as the opening of disciplinary proceedings, against the person concerned when the administration concludes, at the end of the administrative investigation, that psychological harassment has occurred.

In the present case, first, the Court considers that the decision of the Head of Mission taken in May 2017 to exclude the applicant from staff meetings cannot be regarded, in isolation, as evidence of psychological harassment towards the applicant. In effect, under the terms of Article 6(2) and (3) of Decision 2012/392, the Head of Mission exercises command and control over personnel, teams and units from contributing States and issues instructions to all Mission staff, assuming its coordination and day-to-day management. In addition, the administration has a wide discretion in relation to its internal organisation.

Second, the Court states that, in the absence of an explanation from the Mission justifying the delay in the formulation of the first warning sent to the applicant, having regard to both the time limit provided for by Article 11 of the Code of Conduct ( 4 ) and the amount of time that had elapsed since the events occurred, and in the absence of an indication as to the exact date on which the Head of Mission became aware of the report made by the applicant in July 2017, the notification of the warning less than an hour after that report could be considered excessive or open to criticism. Indeed, it could be interpreted as an attempt to penalise the applicant for that report, contrary to the requirements set out in Article 7 of the Code of Conduct, ( 5 ) and thus, considered in isolation, constitutes evidence of psychological harassment.

Third, in the particular circumstances in which it occurred, the decision of the Mission’s human resources department (‘the HR department’) to send a reminder, on 27 July 2017, of the applicant’s evaluation procedure the day after the mediator’s departure, without awaiting his findings, and more than nine months before the end of the applicant’s secondment, is excessive or open to criticism.

In effect, the Mission did not state the reasons why the HR department initiated that administrative procedure on that date, when according to Article 7 of Annex IX of the OPLAN, ( 6 ) relating to human resources, the evaluation procedure for staff members applying to extend their secondment to the Mission had to be carried out when they submitted their application to that effect, and at the latest three months before the end of the secondment. Furthermore, the Mission had a duty of care in accordance with the principle of good administration enshrined in Article 41 of the Charter, following the abovementioned report pursuant to Article 7 of the Code of Conduct.

Accordingly, such a reminder may be interpreted as seeking to oust the applicant from the Mission at the end of his secondment without awaiting the mediator’s proposals, such that that decision, considered in isolation, constitutes evidence of psychological harassment.

Lastly, the fact that the HR department sent the applicant an updated annual leave record in late July 2017 cannot be considered, in isolation, as excessive or open to criticism, or constituting evidence of psychological harassment. Without prejudice to the Mission’s duty to act diligently and, in particular, the duty to have regard for the welfare of officials pending the mediator’s findings, neither Articles 1 and 31 of the Charter, nor Article 12a of the Staff Regulations, nor the provisions of Annex IX of the OPLAN and of the Code of Conduct required the Mission to exempt the applicant from the Mission’s HR management procedures on the sole ground that he had reported the Head of Mission and his deputy for psychological harassment.

Moreover, the Court notes that the general working environment in which the facts relied on by the applicant took place was characterised by the intention of the Head of Mission to remove the applicant from his post without implementing the procedure provided for in Article 8 of Annex IX of the OPLAN aimed at terminating a secondment prematurely.

In the second place, the Court considers that the applicant is entitled to maintain that the Mission breached the right to good administration.

In that regard, it recalls that, in disputes concerning harassment involving EU officials or other staff members, the person who lodged a complaint of harassment is entitled, in order to be able effectively to submit his observations to the institution concerned before it takes a decision, to receive a summary, at the very least, of the statements made by the person accused of harassment and the various witnesses heard during the investigation procedure and that such a summary must be disclosed while respecting, if necessary, the principle of confidentiality. The Court noted that that was the case as the statements had been used in the report which had been submitted to the authority that had taken the decision not to pursue the complaint and included recommendations on the basis of which that authority had made its decision.

In the present case, since in April 2018 the COC rejected the applicant’s request for an administrative investigation to be opened on the basis of the mediator’s report issued in late July 2017, and taking into account the recommendation contained in that report, it should have ensured respect for the applicant’s right to be heard by giving him the opportunity to submit his observations on that report and to provide any additional information before it adopted that decision. In effect, the applicant’s hearing could have led the COC to reach a different conclusion, namely the decision to conduct an administrative investigation.

Despite acknowledging that the applicant has established the existence of a direct and certain causal link between the alleged non-material damage and the breaches found, the Court finds that the applicant, owing to his negligent behaviour, is one of the protagonists of the conflict situation which he describes as harassment, having given rise to the non-material damage he claims to have suffered. Therefore, the Court upholds in part his action for damages.

( 1 ) Council Decision 2012/392/CFSP of 16 July 2012 on the European Union CSDP mission in Niger (EUCAP Sahel Niger) (OJ 2012 L 187, p. 48).

( 2 ) See Article 7(1) of Decision 2012/392.

( 3 ) Pursuant to Article 90(1) of the Staff Regulations.

( 4 ) It is clear from Article 11 of the Code of Conduct and Discipline for EU Civilian CSDP Missions (‘the Code of Conduct’) that, on the basis of a report concerning a possible breach, the decision of the responsible authority on the action to be taken on that breach, which may lead the authority to deal with it as a management issue, must be taken within 10 working days.

( 5 ) Article 7(1) of the Code of Conduct provides that Mission members who have reported a possible breach should not suffer any adverse effects as a result of or as a reaction to this reporting, provided they have acted reasonably and in good faith.

( 6 ) Article 7 of Annex IX of the Mission’s revised operational plan (OPLAN), relating to human resources, makes the extension of the secondment of a seconded staff member subject to the agreement of the Head of Mission, on the basis of a request to that effect from the staff member concerned submitted three months before the end of the secondment period and a favourable performance evaluation report from his or her direct line manager.