Case T‑377/20

KN

v

European Economic and Social Committee

Judgment of the General Court (Eighth Chamber), 1 September 2021

(Institutional law – Member of the EESC – OLAF investigation into allegations of psychological harassment – Decision to discharge a member from his duties involving the management and administration of staff – Action for annulment – Challengeable act –Admissibility – Measure taken in the interest of the service – Legal basis – Rights of the defence – Refusal of access to the annexes to the OLAF report – Disclosure of the substance of the witness statements in the form of a summary – Liability)

1. Actions for annulment – Actionable measures – Definition – Measures producing binding legal effects – Invitation to resign and withdraw a candidacy for presidency of the European Economic and Social Committee – Not included

   (Art. 263 TFEU)

   (see paragraphs 62, 63, 68)

2. Actions for annulment – Actionable measures – Definition – Measures producing binding legal effects – Decision to discharge a member of the European Economic and Social Committee from his duties involving the management and administration of staff – Included

   (Art. 263 TFEU; Rules of Procedure of the European Economic and Social Committee, Rule 80)

   (see paragraphs 74, 77-79)

3. Actions for annulment – Actionable measures – Definition – Measures producing binding legal effects – Decision of an EU body or agency to join proceedings before a national court as a civil party – Not included

   (Art. 263 TFEU; Charter of Fundamental Rights of the European Union, Art. 47)

   (see paragraphs 82, 83)

4. European Economic and Social Committee – Members – Psychological harassment – Interest of the service – Decision to relieve the member of his hierarchical authority – Classification as disciplinary sanction – None

   (Rules of Procedure of the European Economic and Social Committee, Rule 9(8) and Annex, Art. 8(3), second subpara.)

   (see paragraphs 99-102, 104, 105)

5. EU law – Principles – Rights of the defence – European Economic and Social Committee (EESC) –Members – European Anti-Fraud Office (OLAF) investigation relating to alleged psychological harassment – Decision to relieve the member of his hierarchical authority – Right of access to records of hearings – Limits – Possibility for the administration to use anonymisation or produce a summary of the text

   (Charter of Fundamental Rights of the European Union, Art. 41(2); European Parliament and Council Regulation No 883/2013, Art. 11(4))

   (see paragraphs 112-115, 123-125, 187, 191)

6. EU law – Principles – Rights of the defence – European Economic and Social Committee (EESC) –Members – European Anti-Fraud Office (OLAF) investigation relating to alleged psychological harassment – Decision to relieve the member of his hierarchical authority – Right of access to records of hearings – Limits – Access to the confidential version limited to the member’s representatives – Substance of the confidential version found in the non-confidential version – Whether permissible

   (Charter of Fundamental Rights of the European Union, Art. 41(2); Rules of Procedure of the General Court, Art. 103(3); Practice Rules for the Implementation of the Rules of Procedure of the General Court, para. 191; European Parliament and Council Regulation No 883/2013, Art. 11(4))

   (see paragraphs 164-166)

Résumé

The applicant, KN, has been a member of the European Economic and Social Committee (EESC) since 1 May 2004 and was president of ‘Group I’, the Employers’ Group within the EESC, between April 2013 and 27 October 2020.

After having been informed of allegations concerning the applicant’s behaviour towards other members of the EESC and members of its staff, the European Anti-Fraud Office (OLAF) opened an investigation, in the course of which the applicant and also witnesses and whistle-blowers were interviewed. On 16 January 2020, OLAF sent out a report in which it recommended to the EESC that it take all necessary measures to prevent any further cases of harassment on the part of the applicant in the workplace. With a view to ensuring the protection of the witnesses and whistle-blowers, the transcripts of their hearings were not sent to the applicant, who received a non-confidential version which did not contain any of the annexes to the OLAF report.

On 13 May 2020, the European Parliament refused to grant the EESC discharge in respect of the budget for as long as measures were not taken to follow up OLAF’s recommendations. ( 1 )

By decision of 9 June 2020, the EESC Bureau asked the applicant to resign from his duties as president of Group I and withdraw his candidacy for presidency of the EESC, and discharged him from all activities involving the management and administration of staff (‘the contested decision’). Following that decision, the applicant remained president of Group I until the expiry of his mandate but withdrew his application. He was nominated as a member of the EESC for the period from 21 September 2020 to 20 September 2025.

Ruling on an action for annulment of the contested decision and for damages, the General Court dismissed that action and clarified the extent of the access of a person accused of harassment to the statements of the witnesses interviewed in the course of an OLAF investigation.

Findings of the Court

First of all, the Court decided on the admissibility of the action. On the one hand, the action was inadmissible inasmuch as it was directed against the invitations made to the applicant to resign from his duties as president of Group I and withdraw his candidacy for presidency of the EESC, because those invitations did not have binding legal effects. On the other hand, the action was admissible inasmuch as it was directed against the decision to discharge the applicant from his duties involving the management and administration of staff. That decision, which prevented the applicant from exercising hierarchical authority, produced binding legal effects and adversely affected him.

Next, the Court noted that the non-confidential version of the OLAF report contained a summary of the statements of the witnesses and whistle-blowers interviewed. That version gave details of each of the alleged behaviours on the part of the applicant and described the effects which those behaviours had had on the health of the persons concerned.

Inasmuch as that summary reflected the substance of the witness statements gathered, the Court concluded that the failure to provide the annexes to the OLAF report did not affect the legality of the contested decision.

Finally, during the proceedings before the Court, the applicant’s lawyers were asked to give a confidentiality undertaking before receiving a copy of the annexes to the OLAF report. ( 2 ) However, the applicant’s lawyers argued that their observations could not act as a substitute for those which the applicant could have made if he himself had had access to those annexes. In that regard, the Court noted that the applicant’s lawyers had failed to identify any element of the annexes to the OLAF report the substance of which was not already found in the non-confidential version of that report. Given that that step could be undertaken without communicating to the applicant the confidential version of the statements of the witnesses interviewed in the course of the investigation, the Court concluded that it was not necessary to examine the additional observations which the applicant could have submitted himself if he had been privy to that version.

( 1 ) Decision (EU) 2020/1984 of the European Parliament of 13 May 2020 on discharge in respect of the implementation of the general budget of the European Union for the financial year 2018, Section VI – European Economic and Social Committee (OJ 2020 L 417, p. 469), and Resolution (EU) 2020/1985 of the European Parliament of 14 May 2020 with observations forming an integral part of the decision on discharge in respect of the implementation of the general budget of the European Union for the financial year 2018, Section VI – European Economic and Social Committee (OJ 2020 L 417, p. 470).

( 2 ) Article 103(3) of the Rules of Procedure of the General Court provides for the possibility, for the Court, to bring to the attention of a main party certain information or material which is relevant to the outcome of the dispute and of a confidential nature, making its disclosure subject to the giving of specific undertakings. It is apparent, in addition, from paragraph 191 of the Practice Rules for the Implementation of the Rules of Procedure that such an undertaking may involve a party’s representatives’ undertaking not to communicate that information or material to their client or a third party.