Case T‑730/18

DQ and Others

v

European Parliament

Judgment of the General Court (First Chamber), 3 October 2019

(Civil service – Officials – Article 24 of the Staff Regulations – Request for assistance – Article 12a of the Staff Regulations – Psychological harassment – Scope of the duty of assistance – Removal measure – Duration of the administrative procedure – Liability – Non-material damage)

1. Actions brought by officials – Actions for damages – Application for annulment of a pre-litigation decision rejecting a request for compensation – Application not independent of the claims for compensation

   (Staff Regulations, Arts 90 and 91)

   (see paragraph 42)

2. Officials – Non-contractual liability of the institutions – Conditions – Unlawfulness – Damage – Causal link – Cumulative conditions

   (Art. 340 TFEU)

   (see paragraph 47)

3. Officials – Non-contractual liability of the institutions – Conditions – Compensation for loss caused to an official or member of staff – Administration’s duty to have regard for the interests of officials – Scope

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

   (see paragraphs 48, 50, 51)

4. Officials – Obligation of administration to provide assistance – Scope – Obligation of the victim of psychological harassment to first bring an action for compensation before a national court

   (Staff Regulations, Art. 24)

   (see paragraphs 57-59, 99)

5. Officials – Obligation of administration to provide assistance – Scope – Duty of the administration to examine requests for assistance concerning psychological harassment and to inform the complainant of the decision taken on the request – Condition

   (Staff Regulations, Arts 24 and 90(1))

   (see paragraphs 80-82, 84, 108, 109)

6. Officials – Psychological harassment – Meaning – Administration having no discretion as to whether conduct falls within the meaning of that expression

   (Staff Regulations, Art. 12a(3))

   (see paragraph 82)

7. Officials – Obligation of administration to provide assistance – Implementation in the case of psychological harassment – Handling of a request for assistance – Duty to act within a reasonable time – Scope

   (Staff Regulations, Art. 24)

   (see paragraphs 101-103, 106)

8. Judicial proceedings – Costs – Taxation – Recoverable costs – Meaning – Fees incurred during the pre-litigation stage – Not included

   (Staff Regulations, Arts 90 and 91)

   (see paragraph 115)

Résumé

In its judgment in DQ and Others v Parliament (T‑730/18), delivered on 3 October 2019, the General Court ordered the European Parliament to pay damages to DQ and the other officials in respect of the non-material damage they had suffered as a result of the mishandling of a request for assistance they had made on 24 January 2014, concerning psychological harassment by their immediate superior, and breach of the reasonable time principle.

On 13 December 2017, the applicants submitted a request to the Appointing Authority (‘the AA’), pursuant to Article 90 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), for it to compensate them for the damage they claimed to have suffered by reason of failings of the AA in dealing with their request for assistance, particularly its failure to have due regard to the principle of sound administration and the duty to have regard for the interests of officials, and its failure to respect their dignity and their right to working conditions conducive to their health, safety and dignity. The AA did not comply with that request for compensation, and on 23 May 2018, the applicants lodged an objection against the implicit rejection of that request which the Secretary General, in his capacity as AA, rejected on 12 September 2018.

In support of their action, the applicants essentially argued that they had suffered non-material damage, which they assessed ex aequo et bono in the sum of EUR 192000, as a result of the failure of the AA to adopt appropriate measures, within an appropriate time, in response to their request for assistance, and to ensure that their working conditions complied with Article 31 of the Charter of Fundamental Rights of the European Union. They submitted that the inaction of the services of the AA had enabled the head of unit to cause injury to their dignity, character and physical and mental integrity. They also submitted that the AA had failed to conduct the administrative inquiry within a reasonable time. Furthermore, it had not conducted the disciplinary proceedings against the head of unit, and imposed a disciplinary penalty on him, within an appropriate time frame.

Ruling in the context of an action for damages relating essentially to the manner in which a request for assistance in respect of psychological harassment had been handled, the General Court specified the obligations incumbent on the AA pursuant to the duty of assistance and the reasonable time principle.

The General Court first observed that it cannot grant compensation for non-material damage arising from psychological harassment as such. It is incumbent on the victim to bring an action against the harasser before the national court, and it is only where that action proves fruitless that he can turn to the AA and invoke the secondary joint and several liability to which it is subject under the second paragraph of Article 24 of the Staff Regulations. Thus, since no claim for compensation brought by the applicants before a national court had previously been dismissed, the claims for compensation for such non-material damage were dismissed as premature.

Having regard to the fact that the applicants had initially made a report, going on to submit a request for assistance at a later stage, the General Court observed that any official or other servant witnessing conduct potentially constituting psychological harassment contrary to Article 12a of the Staff Regulations may report such conduct to his immediate superior, under the procedure set out in Article 22a of the Staff Regulations. It noted however that in the present case, the applicants’ intention had not been to report a breach of Article 12a of the Staff Regulations, but only a failure by the head of unit to have due regard for the provisions relating to competitions. In those circumstances, the General Court held that the AA was not required to treat the report as a request for assistance. Similarly, while the applicants may have related their feelings about their working conditions to the medical service of the institution, the General Court held that, as the medical service had not formally raised the matter with the institution, it was not obliged to institute an administrative inquiry concerning psychological harassment.

In contrast, where a request for assistance has been submitted together with sufficient prima facie evidence of the facts alleged, it is incumbent on the AA to act with all requisite speed. In particular, it is in any circumstances incumbent on the AA – which has no discretion in this regard – to open an administrative inquiry in order to establish the facts and ensure, by adopting the necessary measures, that all the proper consequences follow – one such measure being the opening of disciplinary proceedings against the person accused of harassment where, on conclusion of the administrative inquiry, it is found that that psychological harassment has taken place.

In the present case, the General Court held that the AA of the Parliament had not acted with the requisite speed, having waited two months before opening the administrative inquiry and a further month before informing the applicants that it had done so. It should also have adopted a measure for the complete removal of the head of unit named in the request for assistance, given that practically the entire unit considered his conduct to be in breach of Article 12a of the Staff Regulations. By allowing the head of unit to be involved in certain unit matters while the administrative inquiry was ongoing, and by consulting him in relation to the reporting procedure concerning the applicants, the AA also infringed Article 24 of the Staff Regulations.

The fact that the AA did not inform the applicants of the outcome of the administrative inquiry, send them the inquiry report, or inform them of the opening of disciplinary proceedings against the head of unit – or the nature and severity of the penalty which, on conclusion of those proceedings, was subsequently imposed on him – also constituted infringement of Article 24.

In addition, the General Court held that the administrative procedure relating to the request for assistance, which took almost two years, did not comply with the reasonable time principle.

It therefore ordered the Parliament to pay the applicants a total of EUR 36000, to be divided between them, together with compensatory and late-payment interest at 3.5 percentage points over the European Central Bank rate.