‘23

The applicant was recruited as a probationary official with effect from 1 September 2005 and was assigned, from that date until 31 December 2008, to one of the translation units of the Directorate-General (DG) for Translation of the Court of Justice, as a lawyer-linguist. She was established as an official as of 1 June 2006.

24

In December 2005, Ms X was recruited as a lawyer-linguist in the same translation unit and within the same team as the applicant, as a member of the contract staff for auxiliary tasks. Ms X is the wife of Mr W, who was subsequently appointed to the position of Attaché to the Registrar of the Court of Justice.

25

The applicant was made responsible for revising some of the translations carried out by Ms X. In that capacity, she states that she quickly noted the poor quality of Ms X’s translations, as well as Ms X’s failure to follow instructions and meet deadlines.

26

The applicant claims that, on numerous occasions, she and some of her other colleagues, including her Team Leader, alerted the Head of Unit, Mr Y, to Ms X’s alleged lack of competence. According to the applicant, the Head of Unit systematically ignored the criticisms of Ms X’s work, which, in her view, was a result of his longstanding friendship with Ms X. Moreover, the applicant’s professional standing within the unit deteriorated after she made her Head of Unit aware of the inadequacies of Ms X’s work. For its part, the Court of Justice disputes that version of the facts, in particular the existence of any favourable treatment towards Ms X, and the failure to act by the applicant’s hierarchical superiors.

27

In April 2006, an incident took place which strengthened the applicant’s conviction that Ms X was enjoying preferential treatment within the unit. After the applicant had pointed out that one of Ms X’s translations was incomplete and asked Ms X to complete it, Ms X sent the new document to the secretariat with the note “travail accompli” [“work completed”], whereas, according to the internal rules of the service, it should have been returned to the applicant for further revision. Afterwards, the applicant reported the incident to Mr Y, asking for firm measures to be adopted with regard to Ms X, which Mr Y refused to do.

28

The applicant lodged a complaint with the Director responsible for her unit concerning the attitude of her Head of Unit, which she considered to be “inappropriate and hostile”.

29

According to the Court of Justice, at a meeting held on 10 December 2006, the Director explained to the applicant why Ms X had been recruited. The applicant claims that the Director also conceded at that meeting that Ms X had difficulties in relationships with other members of the unit and that, in the past, she had twice been unsuccessful in open competitions organised by the European Personnel Selection Office (EPSO) for positions as a lawyer-linguist at the Court of Justice. The Court of Justice disputes the truth of the comments which the applicant attributes to her former Director.

30

On 14 May 2007, the applicant found errors in the translation of a judgment of the Court of Justice translated by Ms X. She informed her Head of Unit, Mr Y, of those errors.

31

On 25 May 2007, in the context of the 2006 appraisal period, the applicant met the Director-General of DG Translation, in her capacity as appeal assessor. According to the applicant, she informed the Director-General of the difficulties she was facing as a result of the preferential treatment by the Head of Unit, Mr Y, for a member of his team, without, however, referring to Ms X by name. According to the applicant, the Director-General was immediately shocked and proposed that an internal audit should be organised, in order to determine whether there had been preferential treatment in the appointment of the person at issue to the post of lawyer-linguist. According to the applicant, on learning that the person concerned was Ms X, the wife of the Attaché to the Registrar of the Court of Justice, the Director-General suggested that she change Directorate-General. The Court of Justice disputes the truth of the comments attributed by the applicant to the Director-General.

32

The applicant asserts that she alerted her hierarchical superiors to the preferential treatment of Ms X by her Head of Unit in an e-mail of 23 November 2007, in a note sent in connection with the 2007 appraisal period and, lastly, in an e-mail sent, inter alia, to the Registrar of the Court of Justice on 11 November 2008.

33

In the meantime, on 10 July 2008, the Head of Unit, Mr Y, decided to place the applicant in another team within the unit, because she had a confrontational relationship with her Team Leader. In the applicant’s view, the truth of that reason should be doubted, since, first, that Team Leader was about to be transferred to the Council of the European Union and, secondly, he was unaware of the reasons why his relationship with her could be classified as confrontational until he himself consulted the Head of Unit. Nevertheless, the applicant did not submit a complaint against that decision to place her in a different team.

34

At the start of September 2008, the applicant used the services of one of the counsellors dealing with psychological harassment established by the [communication from the Registrar of the Court of Justice of 20 November 2006 on respect for human dignity].

35

In November 2008, it was proposed to the applicant that her work documents would be circulated electronically and no longer on paper.

36

On 9 December 2008, considering that she had been pushed to her limit by her Head of Unit’s alleged psychological harassment, the applicant sent an e-mail to all the members of her unit, which, in the French version provided by the applicant, reads as follows:

“Chers collègues, moi non plus je ne serai pas des vôtres demain et il s’agit d’une décision bien réfléchie des choses, qui exige cependant quelques explications pour ceux qui ne sont pas au courant, de sorte que personne ne risque de se sentir vexé.

En effet, comme la majorité d’entre vous a pu s’[en] apercevoir, l’attitude du chef d’unité envers moi est devenue particulièrement hostile, et parfois tout à fait discourtoise, et je fais preuve de beaucoup de tact dans cette qualification (de son attitude), dès que j’ai attiré l’attention sur le fait que son incapacité à séparer les relations sociales et professionnelles a eu une influence très négative sur le fonctionnement de l’unité et les conditions de travail des réviseurs, qui ont été confrontés dans le cadre de leur travail à une connaissance de longue date du chef d’unité, qui a obtenu des contrats d’agent temporaire durant presque deux ans dans notre service.

Je ne suis pas la seule à avoir été gênée par cette situation mais apparemment j’ai été la seule à oser exprimer clairement ce que j’en pense, et notamment qu’il s’agissait d’une manifestation d’un manque de respect à l’égard des autres personnes travaillant dans notre unité parce qu’un traitement privilégié des connaissances s’est produit malheureusement aux dépens des autres, ceux qui sont arrivés ici à l’issue d’un concours EPSO ou sur la base de leur propre savoir et de leurs compétences, sans avoir de relations amicales, familiales et autres à la Cour.

Il va sans dire que la revanche a été et reste brutale, ce qui se répercute sur mes conditions de travail. J’estime néanmoins que des valeurs telles que l’honnêteté, la décence et la dignité sont bien plus importantes que, par exemple, un demi-point de promotion. Aucune position occupée n’autorise quelqu’un à traiter les autres d’une manière incorrecte ou arrogante, surtout pour des raisons purement personnelles que chacun de vous, qui connaît la situation qui s’est produite dans notre unité de décembre 2005 à juin 2007 peut apprécier par lui-même.

À ceux qui m’ont répété que l’on ne peut rien faire face à des personnes unies par des relations et que rien ne changera ici, la bonne nouvelle c’est que, au contraire, beaucoup a déjà changé et changera encore plus bientôt. La meilleure preuve en est qu’à présent sont recrutés dans notre unité des lauréats de concours EPSO ou ceux qui ne soulèvent pas le moindre doute quant au fait qu’ils sont engagés sur la base de leur valeur intrinsèque et non par exemple en fonction de qui ils connaissent et depuis combien de temps.

À ceux à qui rien ne peut couper l’appétit, je souhaite ‘bon appétit !’

…

P.S. Je remercie beaucoup tous ceux parmi vous qui ont voté pour moi aux élections au [comité du personnel] (presque 350 voix, c’est un très bon résultat) et pour les courriels et les autres expressions de soutien que j’ai reçues. C’est quand même une expérience constructive qu’un groupe de personnes si nombreux considère également que beaucoup de choses devraient changer non seulement dans notre unité, mais aussi dans l’[i]nstitution. À présent, les chances d’y arriver sont nettement meilleures qu’auparavant.”

[Dear colleagues, I too will not be with you tomorrow, and this is a carefully considered decision, which requires, however, some explanation for those who are not aware of the situation, so that there is no risk of upsetting anyone.

As most of you will have noticed, the Head of Unit’s attitude towards me has become particularly hostile, and sometimes downright disrespectful, and I’m being very tactful in that description (of his attitude), since I drew attention to the fact that his inability to separate social and work relationships has had a very negative influence on the operation of the unit and the working conditions for revisers, who in their work have had to deal with a long-standing acquaintance of the Head of Unit who has been given temporary agent contracts for nearly two years in our service.

I am not the only person to have been disturbed by this situation but apparently I was the only one who dared clearly to say what I thought about it and, in particular, that it indicated a lack of respect for the other people working in our unit, because the preferential treatment for acquaintances unfortunately occurred at the expense of other people: those who came here following an EPSO open competition or on the basis of their own knowledge and abilities, and had no friendship, family or other ties with the Court of Justice.

It goes without saying that the retaliation has been and continues to be brutal, which has repercussions on my working conditions. It is still my view that values such as honesty, decency and dignity are far more important than, for example, half a promotion point. Whatever a person’s position, he cannot be allowed to treat others improperly or arrogantly, particularly for purely personal reasons which all of you who are aware of the situation which prevailed in our unit between December 2005 and June 2007 can appreciate for yourselves.

To the people who have repeatedly told me that nothing can be done when confronted with people in close relationships and that nothing will change here, the good news is that, on the contrary, much has already changed and yet more change will soon take place. The best evidence of this is that we are currently recruiting into our unit individuals who were successful in the EPSO competition or individuals who were, without a shadow of a doubt, employed on the basis of their intrinsic worth and not, for example, because of who they know and for how long.

To those who have a strong stomach, I wish you “bon appétit!”

…

P.S. Many thanks to all those who voted for me in the elections [for the staff committee] (nearly 350 votes, that is a great result) and for the e-mails and other messages of support I have received. Despite everything, it has been a positive experience that such a large group of people also believe that much needs to change, not only in our unit, but also in the [i]nstitution. The chances of achieving that change are now clearly greater than they were.]

37

By e-mail of the same day sent to the newly-appointed Director of her unit, copied to the Director-General of DG Translation, the applicant requested a meeting regarding the psychological harassment which she claimed to have suffered.

38

On 10 December 2008, the applicant sent another e-mail … to her Head of Unit, Mr Y, and to all the members of the unit, which reads as follows in the French translation provided by the applicant:

“Bonjour

Vos supérieurs sont parfaitement au courant de l’affaire depuis longtemps et [le directeur général] était d’avis que la question des contrats attribués à l’une de vos connaissances devrait faire l’objet d’un audit interne de la Cour. Actuellement, des clarifications sont en cours pour voir pourquoi l’audit n’a pas été fait en temps utile et qui est responsable de cette négligence.

M’adresser des menaces ne change pas les faits et [le directeur nouvellement en charge de l’unité] a déjà décidé antérieurement de consacrer tout le temps nécessaire à un entretien concernant votre comportement inconvenant dans le cadre de l’accomplissement de vos fonctions, parce que l’ancien directeur […] a ignoré ce problème pendant très longtemps et il semble que cela va désormais changer.”

[Good morning

Your superiors have been fully aware of the matter for a long time and [the Director-General] was of the opinion that the question of the contracts awarded to one of your acquaintances should be the subject of an internal audit by the Court of Justice. Clarifications are currently being sought as to why the audit was not carried out in good time, and to establish who is responsible for that negligent act.

Threatening me does not change the facts and [the newly-appointed director responsible for the unit] has already decided to devote as much time as necessary to a meeting concerning your improper conduct in the performance of your duties, because the former director … ignored this problem for a very long time and it seems that this is now going to change.]

39

The two e-mails sent on 9 and 10 December by the applicant to all the members of the unit to which she was assigned led, first, to the adoption by the Registrar of the Court of Justice, acting as appointing authority (“the appointing authority”), of the decision of 18 December 2008, by which he transferred the applicant with her post, the applicant being, on the basis of Article 7(1) of the Staff Regulations [of Officials of the European Communities], transferred to work at the Library Directorate with effect from 1 January 2009 … In the memorandum of notification of the decision, the Director-General for Personnel and Finance of the Court of Justice states that that decision “is motivated by the need to ensure the proper functioning of [your] unit …, which has been compromised following e-mails in which serious accusations were made against your hierarchical superiors, which you sent to all your colleagues in the unit on 9 and 10 December 2008”.

40

On 2 April 2009, the applicant submitted a complaint, under Article 90(2) of the Staff Regulations [of Officials of the European Communities], by which she sought annulment of the decision of 18 December 2008 and compensation for non-material damage, assessed at EUR 30 000.

42

By decision of 30 June 2009, notified on 13 July 2009, the Complaints Committee rejected the complaint of 2 April 2009.

43

The second consequence of the e-mails of 9 and 10 December 2008 was that a note was sent, on 19 December 2008, to the Registrar of the Court of Justice, in his capacity as the appointing authority, by DG Translation, in which the latter asked for disciplinary proceedings to be instituted against the applicant (“the note for the file”) …

44

By memorandum of 12 January 2009, the Registrar of the Court of Justice sent to the applicant the note for the file, to which was attached a translation into French of the two e-mails of 9 and 10 December 2008, and invited her to a hearing pursuant to Article 3 of Annex IX to the Staff Regulations [of Officials of the European Communities]. That hearing took place on 28 January 2009, in the presence of the Director of the Directorate for Human Resources and Personnel Administration of the DG Personnel and Finance of the Court of Justice, who was instructed to draw up the minutes. At that hearing, the applicant requested and was granted leave to submit any written observations additional to the initial observations which she might find necessary to submit following the drafting of the minutes.

45

On 3 February 2009 the applicant received the draft minutes of the hearing of 28 January 2009 and, on 9 February 2009, she sent her initial observations on that draft to the appointing authority.

46

On 27 February 2009, the applicant sent additional observations, in which she argued that the procedure initiated against her was unlawful.

47

On 12 March 2009, the applicant received, for signature, the final version of the minutes of the hearing. She returned the document unsigned, arguing that it did not reflect all the observations she had made.

48

By memorandum of 1 April 2009, the Registrar of the Court of Justice informed the applicant that, given that it was wrong to send the e-mails of 9 and 10 December 2008, he had decided to institute the disciplinary proceedings laid down in Article 11 of Annex IX to the Staff Regulations [of Officials of the European Communities], “in order to impose the penalty of a written warning or a reprimand without consulting the Disciplinary Board”. Furthermore, he stated that before taking a view on how to classify the conduct of the applicant and on any penalty to be imposed, a second hearing would be organised under Article 11 of the Staff Regulations.

49

The applicant was heard for a second time by the Registrar of the Court of Justice on 8 May 2009 …

54

[O]n 10 July 2009, the Registrar of the Court of Justice, in his capacity as the appointing authority, took the decision to impose on the applicant the penalty of a written warning, on the ground that “sending, to all the members of [her unit], the e-mails of 9 and 10 December 2008 reflected adversely on her position, contrary to Article 12 of the Staff Regulations [of Officials of the European Communities]” (“the penalty of 10 July 2009”).

59

By letter of 10 November 2009, the applicant lodged a complaint, under Article 90(2) of the Staff Regulations [of Officials of the European Communities], against the penalty of 10 July 2009 …

61

By letter of 22 January 2010 … the applicant was invited to a hearing before the Complaints Committee, set for 9 February 2010.

65

By letter of 19 February 2010 sent to the [Complaints Committee], the applicant [stated] that, in her view, the Complaints Committee was not competent to decide on her complaint.

66

By decision of 10 March 2010, notified on 15 March 2010, the Complaints Committee rejected the complaint against the penalty of 10 July 2009.’

—

set aside the judgment under appeal;

—

grant the forms of order she sought at first instance in Cases F‑88/09 and F‑48/10;

—

order the Court of Justice to pay the costs incurred at first instance and in the context of the present appeal.

—

dismiss the appeal;

—

order the appellant to pay the costs.

1.

Sets aside the judgment of the European Union Civil Service Tribunal (Third Chamber) in Z v Court of Justice (F‑88/09 and F‑48/10, ECR-SC, EU:F:2012:171), in so far as it rejected as ineffective the plea in law, raised in Case F‑48/10, alleging lack of competence on the part of the Complaints Committee and illegality of Article 4 of the decision of the Court of Justice of the European Union of 4 May 2004 concerning the exercise of the powers conferred by the Staff Regulations of Officials of the European Union on the appointing authority and by the Conditions of Employment of Other Servants of the European Union on the authority empowered to conclude contracts of employment;

2.

Dismisses the appeal as to the remainder;

3.

Dismisses the action in Case F‑48/10 in so far as it was based on the plea in law alleging lack of competence on the part of the Complaints Committee and illegality of Article 4 of the decision of the Court of Justice of 4 May 2004 concerning the exercise of the powers conferred by the Staff Regulations of Officials of the European Union on the appointing authority and by the Conditions of Employment of Other Servants of the European Union on the authority empowered to conclude contracts of employment;

4.

As regards the costs incurred in the present appeal proceedings, declares that Z is to bear three quarters of her own costs and orders her to pay three quarters of the costs incurred by the Court of Justice, and declares that the Court of Justice is to bear one quarter of its own costs and orders it to pay one quarter of the costs incurred by Z.