JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

18 May 2009

Joined Cases F-138/06 and F-37/08

Herbert Meister

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Civil service – Officials – Assessment – Staff reports for 2001/02, 2003/04 and 2004/05 – Delay in drawing up – Powers – Dialogue – Promotion – Promotion points – Psychological harassment – Action for annulment – Action for damages)

Application: brought under Articles 236 EC and 152 EA, in which Mr Meister essentially seeks, first, annulment of his staff reports drawn up for the periods from 1 April 2001 to 31 December 2002, from 1 January 2003 to 30 September 2004, and from 1 October 2004 to 30 September 2005; second, annulment of the decisions awarding promotion points in the 2006 and 2007 promotion exercises; third, annulment of the decision rejecting his request for assistance under Article 24 of the Staff Regulations of Officials of the European Communities, in the version resulting from Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 (OJ 2004 L 124, p. 1) amending those Staff Regulations; fourth, annulment of the decision of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) rejecting his request for the establishment of an individual personal development programme designed for members of staff who have been employed prior to joining OHIM; fifth, an order for OHIM to pay him damages.

Held: The applicant’s career development report drawn up for the period from 1 April 2001 to 31 December 2002 is annulled. The applicant’s career development report drawn up for the period from 1 October 2004 to 30 September 2005 is annulled. The decision awarding the applicant promotion points for the 2006 promotion exercise is annulled. OHIM is ordered to pay the applicant the sum of EUR 5 000. The remainder of application F‑138/06 and application F‑37/08 are dismissed. In Case F‑138/06, OHIM is ordered to bear its own costs and to pay two thirds of the applicant’s costs. In Case F‑37/08, the applicant is to pay all the costs, that is to bear his own costs and to pay those of OHIM.

Summary

1.      Officials – Obligation of administration to provide assistance – Field of application – Scope

(Staff Regulations, Art. 24)

2.      Officials – Individual decision – Notification of a rejection decision – Drawn up in a language which enables the person concerned to have effective knowledge of it

3.      Officials – Psychological harassment – Definition – Conduct aimed at discrediting the person concerned or at impairing his working conditions

(Staff Regulations, Art. 12a(3) and (4); Council Directive 2000/78, Arts 1 and 2(3))

4.      Officials – Staff Regulations – Derogations by way of general implementing provisions – Not permissible

(Staff Regulations, Arts 43, first para., and 90(2))

5.      Officials – Actions – Prior administrative complaint – Same subject-matter and legal basis – Submissions and arguments not made in the complaint but closely related to it

(Staff Regulations, Arts 90 and 91)

6.      Officials – Reports procedure – Career development report – Part played by the countersigning officer in the appraisal procedure

(Staff Regulations, Art. 43)

7.      Officials – Reports procedure – Staff report – Drawing up

(Staff Regulations, Art. 43)

8.      Officials – Actions – Prior administrative procedure – Administration’s failure to comply with the time-limits for replying

(Staff Regulations, Art. 90(2))

1.      By virtue of the duty to render assistance imposed upon it by Article 24 of the Staff Regulations, the administration, when faced with an incident which is incompatible with the good order and tranquillity of the service, must intervene with all the necessary vigour and respond with the rapidity and solicitude required by the circumstances of the case with a view to ascertaining the facts and taking the appropriate action in full knowledge of the facts.

The fact that the appointing authority, in breach of its duty to have regard for the welfare of its officials, has not replied with the necessary speed to a request for assistance, while it may render the institution concerned liable for any damage caused to the official involved, does not, in itself, affect the lawfulness of the decision expressly rejecting that request. If such a decision were to be annulled solely on the ground that it was late, the fresh decision that would be required to replace the annulled decision could not in any case be less late than the annulled decision.

(see paras 73, 76)

See:

224/87 Koutchoumoff v Commission [1989] ECR 99, paras 15 and 16

T-5/92 Tallarico v Parliament [1993] ECR II‑477, para. 31; T-15/96 Liao v Council [1997] ECR-SC I‑A‑329 and II‑897, para. 34; T‑136/98 Campogrande v Commission [2000] ECR-SC I‑A‑267 and II‑1225, para. 42; T-154/05 Lo Giudice v Commission [2007] ECR-SC I‑A‑2‑0000 and II‑A‑2‑0000, para. 136

2.      In order for a decision to be duly notified, it must have been communicated to its addressee and the latter must have been able to have effective knowledge of its content. Thus a decision rejecting a request for assistance under Article 24 of the Staff Regulations which is worded in a language which is neither the mother tongue of the official nor that in which the request for assistance was drafted is lawful provided that the person concerned is able to have effective knowledge of it.

(see paras 84-85)

See:

T-94/92 X v Commission [1994] ECR-SC I‑A‑149 and II‑481, para. 24; T-197/98 Rudolph v Commission [2000] ECR-SC I‑A‑55 and II‑241, para. 44; T-118/99 Bonaiti Brighina v Commission [2001] ECR-SC I‑A‑25 and II‑97, paras 16 and 17

3.      Article 12a(3) of the Staff Regulations defines psychological harassment as ‘improper conduct’ which requires, in order to be established, that two cumulative conditions be satisfied. The first condition relates to the existence of physical behaviour, spoken or written language, gestures or other acts which take place ‘over a period’ and are ‘repetitive or systematic’ (the assumption being that psychological harassment must be understood as a process which necessarily takes place over time and that there is repeated or continuous reprehensible conduct) and which are ‘intentional’. The second condition, separated from the first by the conjunction ‘and’, requires that such physical behaviour, spoken or written language, gestures or other acts have the effect of undermining the personality, dignity or physical or psychological integrity of any person.

The fact that the adjective ‘intentional’ applies to the first condition, and not to the second, means, firstly, that the physical behaviour, spoken or written language, gestures or other acts referred to by Article 12a(3) of the Staff Regulations must be intentional in character, which excludes from the scope of that provision reprehensible conduct which arises accidentally. Secondly, it is not, on the other hand, a requirement that such physical behaviour, spoken or written language, gestures or other acts were committed with the intention of undermining the personality, dignity or physical or psychological integrity of a person. In other words, there can be psychological harassment within the meaning of Article 12a(3) of the Staff Regulations without the harasser’s having intended, by his reprehensible conduct, to discredit the victim or deliberately impair the latter’s working conditions. It is sufficient that such reprehensible conduct, provided that it was committed intentionally, led objectively to such consequences. A contrary interpretation of Article 12a(3) of the Staff Regulations would result in depriving the provision of any useful effect, on account of the difficulty of proving the malicious intent of the perpetrator of an act of psychological harassment.

That interpretation cannot be called in question by the provisions of the first sentence of Article 12a(4) of the Staff Regulations, which state that ‘“[s]exual harassment” means conduct relating to sex which is unwanted by the person to whom it is directed and which has the purpose or effect of offending that person or creating an intimidating, hostile, offensive or disturbing environment’. Although the phrase ‘which has the purpose or effect’ figures in the first sentence of Article 12a(4) of the Staff Regulations, whereas it is absent from the wording of Article 12a(3) of the Staff Regulations, such an absence cannot be construed as meaning that, so far as psychological harassment is concerned, only reprehensible conduct ‘with the purpose’ of discrediting a person or impairing their working conditions could be regarded as constituting such harassment.

Lastly, any interpretation of Article 12a(3) of the Staff Regulations which is based on the malicious intent of the alleged harasser would not be reconcilable with the definition of ‘harassment’ given by Directive 2000/78 establishing a general framework for equal treatment in employment and occupation. The use, in Directive 2000/78, of the phrase ‘with the purpose or effect’ shows that the Community legislature intended to ensure ‘adequate judicial protection’ for the victims of psychological harassment.

(see paras 102, 104-108, 111-113)

See:

F-52/05 Q v Commission [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, paras 135 and 144, on appeal before the Court of First Instance, Case T‑80/09 P

4.      A staff report constitutes an act adversely affecting an official against which the official may either bring an action directly before the Tribunal or a complaint under Article 90(2) of the Staff Regulations. While it is normally desirable to use the internal procedures created by the general implementing provisions for Article 43 of the Staff Regulations, such provisions cannot derogate from the abovementioned rules of the Staff Regulations which allow officials to bring an action before the Tribunal or to lodge a complaint against a staff report without first exhausting those internal procedures.

The institutions are not competent to derogate from an express rule in the Staff Regulations by means of an implementing provision.

(see paras 138-140)

See:

T-54/92 Schneider v Commission [1994] ECR-SC I‑A‑281 and II‑887, para. 22; T-398/03 Castets v Commission [2005] ECR-SC I‑A‑109 and II‑507, para. 32

5.      The rule of harmony between a prior administrative complaint and an action requires that, for a plea before the Community judicature to be admissible, it must have already been raised in the pre-litigation procedure, enabling the appointing authority to know in sufficient detail the criticisms made by the person concerned of the contested decision. While claims for relief before the Community judicature may contain only heads of claim based on the same matters as those raised in the complaint, those heads of claim may be developed before the Community judicature by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it.

(see para. 145)

See:

T-496/93 Allo v Commission [1995] ECR-SC I‑A‑127 and II‑405, para. 26

6.      Rules which require a staff report to be drawn up by a reporting officer and countersigned by a countersigning officer, and which give the countersigning officer the final decision in the event of a disagreement with the reporting officer, making the countersigning officer a reporting officer in the full sense of the term, must be regarded as a guarantee capable of cancelling out any risk of partiality on the part of the reporting officer.

(see para. 156)

See:

F‑28/06 Sequeira Wandschneider v Commission [2007] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 43

7.      In the absence of exceptional circumstances, a staff report cannot be annulled on the sole ground that it was drawn up late. Although delay in drawing up a staff report is capable of giving the official concerned a right to a remedy, such delay cannot affect the validity of the staff report or, in consequence, justify the annulment thereof.

(see para. 171)

See:

T-205/04 Ianniello v Commission [2007] ECR-SC I‑A‑2‑0000 and II‑A‑2‑0000, para. 139

8.      Failure to comply with the time-limits laid down in Article 90 of the Staff Regulations may render the institution concerned liable for any damage caused to those involved.

(see para. 212)

See:

T-267/03 Roccato v Commission [2005] ECR-SC I‑A‑1 and II‑1, para. 84