JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

12 July 2011

Case T-80/09 P

European Commission

v

Q

(Appeal – Civil service – Officials – Cross-appeal – Psychological harassment – Article 12a of the Staff Regulations – Communication on the policy of psychological harassment at the Commission – Duty on the part of the administration to provide assistance – Article 24 of the Staff Regulations – Scope – Request for assistance – Temporary measures of removal from post – Duty to have regard for the welfare of officials – Liability – Claim for compensation – Unlimited jurisdiction – Conditions for implementation – Career development report – Action for annulment – Interest in bringing proceedings)

Appeal:      brought against the judgment of the European Union Civil Service Tribunal (First Chamber) in Case F-52/05 Q v Commission [2008] ECR-SC I-A-1-409 and II-A-1-2235, and seeking to have that judgment set aside.

Held:      The judgment of the European Civil Service Tribunal (First Chamber) in Case F-52/05 Q v Commission [2008] ECR-SC I-A-1-409 and II-A-1-2235 is set aside in that, at paragraph 2 of the operative part, it orders the Commission to pay to Q damages of EUR 500 and also the sum of EUR 15 000, in so far as that sum is intended to make good the non-pecuniary damage sustained by Q owing to an alleged delay in initiating the administrative investigation, and as, for the purposes of dismissing the remainder of the application at first instance, at paragraph 3 of the operative part, it adjudicates, at paragraphs 147 to 189 of the grounds of the judgment, on ‘the complaint of psychological harassment raised by [Q]’ and states, at paragraph 230 of the grounds of the judgment, that there is no longer any need to rule on the claim for annulment of the 2003 career development reports concerning Q, drawn up for the periods 1 January to 31 October and 1 November to 31 December 2003 respectively. The main appeal and the cross-appeal are dismissed for the remainder. The case is referred back to the Civil Service Tribunal for a decision on the claim for annulment of the abovementioned career development reports and also on the sum payable to Q by the Commission in respect only of the non-pecuniary damage resulting from the Commission’s refusal to adopt a temporary measure removing her from her post. Costs are reserved.

Summary

1.      Appeals – Pleas in law – Admissibility – Points of law – Review as to whether the non-contractual liability of the European Union arises

(Article 225a EC; Statute of the Court of Justice, Annex I, Art. 11(1))

2.      Officials – Actions – Procedural context – Article 236 EC and Articles 90 and 91 of the Staff Regulations

(Art. 236 EC; Staff Regulations, Arts 90 and 91)

3.      Officials – Staff Regulations – Purpose – Establishment of reciprocal rights and obligations between the institutions and their officials

(Staff Regulations)

4.      Officials – Non-contractual liability of the institutions – Conditions – Unlawfulness – Meaning – Distinction between the regime of liability of the European Union vis-à-vis its officials and the general regime of liability of the European Union and its Member States in the event of an infringement of EU law

(Art. 288, second para., EC)

5.      Officials – Actions – Unlimited jurisdiction – Scope – Limits

(Staff Regulations, Arts 24, 90(2) and 91(1))

6.      Officials – Obligation on the part of the administration to provide assistance – Conditions – Scope

(Staff Regulations, Art. 24, first para.)

7.      Officials – Actions – Action for damages – Action in relation to the administration’s obligation to compensate for damage caused to an official by a third party – Admissibility – Condition – Obligation to bring proceedings before the national courts first

(Staff Regulations, Arts 12a(3), 24, second para., and 91)

8.      Officials – Obligation on the part of the administration to provide assistance – Scope – Judicial review – Limits

(Staff Regulations, Art. 24, first para.)

9.      Officials – Organisation of departments – Assignment of staff – Reassignment – Administration's discretion – Limits – Interests of the service – Respect for the principle of assignment to an equivalent post

(Staff Regulations, Arts 7(1) and 24(1))

10.    Officials – Obligation on the part of the administration to provide assistance – Scope

(Staff Regulations, Art. 24, first para.)

11.    Procedure – Absolute bar to proceeding – To be considered of the Court's own motion – Respect for the adversarial principle

(Rules of Procedure of the General Court, Art. 113; Staff Regulations, Arts 90 and 91)

12.    Officials – Actions – Act adversely affecting an official – Meaning – Decisions adopted on the basis of an investigation report following a procedure conducted under Article 86 of the Staff Regulations – Preparatory act – Not included

(Staff Regulations, Arts 24, 86(3); Annex IX, Art. 3)

13.    Officials – Actions – Jurisdiction of the Civil Service Tribunal – Examination of the conditions of admissibility

14.    Officials – Actions – Interest in bringing proceedings – Assessment at the time when the action was initiated – Subsequent disappearance of the interest in bringing proceedings – No need to adjudicate

(Staff Regulations, Arts 90 and 91)

15.    Officials – Actions – Interest in bringing proceedings – Action for annulment of a career development report – Official retired on the ground of permanent total invalidity during the contentious proceedings – Continuing interest in bringing proceedings – Limits

(Staff Regulations, Arts 53, 78, 90 and 91; Annex VIII, Arts 13 to 16)

16.    Court of Justice – Judgments – Interpretation of legal rules

1.      It is clear from Article 225a EC and Article 11(1) of Annex I to the Statute of the Court of Justice that an appeal may be based only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts.

In an appeal before the General Court a claim alleging breach of the condition of the existence of unlawful conduct, which has to be met in order for the non-contractual liability of the European Union to arise, is therefore admissible.

(see paras 24, 25, 27, 28)

See: C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paras 43 and 44; T-107/07 P Rossi Ferreras v Commission [2008] ECR-SC I-B-1-5 and II-B-1-31, para. 29 and the case-law cited; T-57/99 Nardone v Commission [2008] ECR-SC I-A-2-83 and II-A-2-505, paras 162 to 164

2.      Where it originates in the employment relationship between the person concerned and the institution, a dispute between an official and an institution to which he belongs or belonged seeking compensation for harm falls within the scope of Article 236 EC and Articles 90 and 91 of the Staff Regulations, and, particularly as regards its admissibility, falls outside the scope of Article 235 EC, the second paragraph of Article 288 EC and Article 46 of the Statute of the Court of Justice.

(see para. 40)

See: T-114/08 P Marcuccio v Commission [2009] ECR-SC I-B-1-53 and II-B-1-313, para. 12 and the case-law cited

3.      The Staff Regulations are an autonomous instrument, whose sole purpose is to regulate the legal relationships between the institutions and their officials, by establishing reciprocal rights and obligations between them. The Staff Regulations have thus struck a balance, in the relationships between the institutions and their officials, of reciprocal rights and obligations which neither institutions nor officials can undermine. That balance of reciprocal rights and obligations is essentially intended to maintain the relationship of trust that must exist between the institutions and their officials, in order that European citizens may be assured that the tasks of general interest assigned to the institutions are properly discharged.

(see para. 41)

See: 167/86 Rousseau v Court of Auditors [1988] ECR 2705, para. 7; C-274/99 P Connolly v Commission [2001] ECR I-1611, paras 44 to 47; T-13/95 Kyrpitis v ECS [1996] ECR-SC I-A-167 and II-503, paragraph 52; T-342/04 Adam v Commission [2006] ECR-SC I-A-2-23 and II-A-2-107, para. 34

4.      In disputes arising in the context of the relationships between the institutions and their officials, a right to compensation is recognised if three conditions are satisfied, namely the unlawfulness of the conduct of the institutions, the reality of the harm and the existence of a causal link between the conduct and the alleged harm.

As regards the condition relating to the unlawfulness of the conduct, the requirement that a sufficiently serious breach of a rule of law intended to confer rights on individuals be established does not apply. That requirement concerns only the non-contractual liability of the Community, under the second paragraph of Article 288 EC, and the liability of the Member States for infringement of Community law. In disputes arising in the context of the relationships between the institutions and their officials, on the other hand, the mere finding of unlawfulness is sufficient for the first of those three conditions to be considered to be satisfied.

Indeed, the difference between, on the one hand, the conditions to be met for Community liability to arise for the harm caused to its officials and former officials owing to a breach of the provisions of the Staff Regulations and, on the other, the conditions governing Community liability towards third parties owing to a breach of other provisions of Community law is justified, in the light of the balance of rights and obligations which the Staff Regulations have specifically created in the relationships between the institutions and their officials, in order that European citizens may be assured that the tasks of general interest entrusted to the institutions are properly discharged.

(see paras 42-45)

See: T-82/91 Latham v Commission [1994] ECR-SC I-A-15 and II-61, para. 72; T-172/00 Pierard v Commission [2001] ECR-SC I-A-91 and II-429, para. 34; T-249/04 Combescot v Commission [2007] ECR-SC I-A-2-181 and II-A-2-1219, para. 49

5.      The first sentence of Article 91(1) of the Staff Regulations governs the second sentence, so that that provision confers unlimited jurisdiction on the European Union Courts only where there is a dispute concerning the legality of an act adversely affecting an official within the meaning of Article 90(2) of the Staff Regulations.

Consequently, in an action brought by a person covered by the Staff Regulations concerning the legality of an act adversely affecting him, the Civil Service Tribunal can, even of its own motion, in the exercise of its unlimited jurisdiction, award compensation to that person only if that compensation is designed to make good damage sustained by that person on account of the illegality of the act adversely affecting him and which forms the subject-matter of the action or, at least, damage resulting from an illegality which has a close link to that act.

In that regard, there cannot be a close link between, on the one hand, a request for assistance under Article 24 of the Staff Regulations complaining of psychological harassment on the part of the superiors of the person concerned and, on the other, an implied decision rejecting that request and the claim for compensation for the breach by the institution concerned of its duty to have regard to the welfare of its officials. Whereas the acts complained of in the request for assistance must be regarded as acts imputable to their authors, that is not the case of the implied decision of rejection, which is an act imputable to the institution concerned. The maladministration imputed to the institution existed before the implied decision of rejection and cannot therefore be regarded as having a close link to that decision.

In those circumstances, the Civil Service Tribunal cannot, without infringing Articles 90 and 91 of the Staff Regulations, adjudicate on whether certain acts complained of in the request for assistance could, taken together, be characterised as maladministration on the part of the institution having given rise to non-pecuniary harm sustained by the applicant and requiring compensation.

(see paras 58, 63, 71-73)

See: judgment of 14 December 2006 in C-12/05 P Meister v OHIM, not published in the ECR, paras 112 to 116; C-583/08 P Gogos v Commission [2010] ECR I-4469, paras 49 to 53; T-54/92 Schneider v Commission [1994] ECR-SC I-A-281 and II-887, paragraph 49 and the case-law cited; T-79/92 Ditterich v Commission [1994] ECR-SC I-A-289 and II-907, paragraph 37 and the case-law cited

6.      The duty to provide assistance laid down in the first paragraph of Article 24 of the Staff Regulations is concerned with the defence of officials by the institution against the acts of third parties and not against acts of the institution itself, the review of which is governed by other provisions of the Staff Regulations. Although the first paragraph of Article 24 of the Staff Regulations is primarily conceived in order to protect officials against attacks and ill-treatment emanating from third parties, it also imposes a duty of assistance on the administration where the author of the acts referred to by that provision is another official.

(see para. 66)

See: 18/78 V. v Commission [1979] ECR 2093, para. 15; 178/80 Bellardi-Ricci and Others v Commission [1981] ECR 3187, para. 23; 98/81 Munk v Commission [1982] ECR 1155, para. 21; T-254/02 L v Commission [2005] ECR-SC I-A-63 and II-277, para. 85 and the case-law cited

7.      The admissibility of an action for compensation brought by an official under the second paragraph of Article 24 of the Staff Regulations is conditional upon the exhaustion of domestic remedies, provided that they effectively ensure the protection of the persons concerned and can provide compensation for the alleged harm.

In that regard, the special regime of strict liability introduced by that provision is based on the administration’s duty to protect the health and safety of its officials and servants against attacks or ill-treatment emanating from third parties or other officials of which they may be victims in the performance of their duties, particularly in the form of psychological harassment, within the meaning of Article 12a(3) of the Staff Regulations.

(see paras 67, 68)

See: judgment of 5 October 2006 in C-365/05 P Schmidt-Brown v Commission, not published in the ECR, para. 78; T-59/92 Caronna v Commission [1993] ECR II-1129, paras 25 and 68; L v Commission, para. 148 and the case-law cited and paras 143 to 146 and 147 to 153

8.      By reason of the duty to provide assistance laid down in the first paragraph of Article 24 of the Staff Regulations, the administration must, when faced with an incident which is incompatible with the good order and tranquillity of the service, intervene with all the necessary vigour and respond with the rapidity and solicitude required by the circumstances of the case with a view to establishing the facts and, consequently, taking the appropriate action in full knowledge of the facts. To that end, it is sufficient that an official who is seeking the protection of his institution provide at least some evidence of the reality of the attacks of which he claims to have been the victim. When such evidence is provided, it is for the institution concerned to take the appropriate measures, in particular by carrying out an administrative investigation, in order to establish the facts giving rise to the complaint, in cooperation with the author of the complaint, failing which it cannot adopt a final position in particular as to whether no further action should be taken on the complaint or whether disciplinary proceedings must be opened and, where appropriate, whether disciplinary measures should be taken.

Furthermore, where the administration receives a request from an official for assistance, under the first paragraph of Article 24 of the Staff Regulations, it is also required, under its duty of protection under that article, to take the appropriate preventive measures, such as the reassignment or temporary transfer of the victim, designed to protect him against a repetition of the conduct complained of throughout the period required for the administrative investigation. In accordance with their objective of providing protection, such measures cannot depend on the existence of a vacant post within the departments.

Indeed, the administration has a wide discretion, subject to review by the European Union Courts, in the choice of measures, both temporary and definitive, that must be taken under Article 24 of the Staff Regulations. Review by the European Union Courts is confined to the question whether the institution concerned remained within reasonable limits and did not use its discretion in a way that is manifestly incorrect.

(see paras 84-86, 92)

See: 53/72 Guillot v Commission [1974] ECR 791, paras 3, 12 and 21; 224/87 Koutchoumoff v Commission [1989] ECR 99, paras 15 and 16; 55/88 Katsoufros v Court of Justice [1989] ECR 3579, para. 16; C-294/95 P Ojha v Commission [1996] ECR I-5863, paras 40 and 41 and the case-law cited; T-136/98 Campogrande v Commission [2000] ECR-SC I-A-267 and II-1225, para. 55; L v Commission, para. 84 and the case-law cited

9.      Decisions to reassign officials in the interest of the service, taken on the basis of Article 7(1) of the Staff Regulations, have as their purpose the proper functioning of the service, even where they are justified by internal relationship difficulties, and therefore come within the broad discretion which the institutions have to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, provided that such assignment conforms with the principle of assignment to an equivalent post.

(see para. 92)

See: Ojha v Commission, paras 40 and 41 and the case-law cited

10.    The duty to provide assistance under the first paragraph of Article 24 of the Staff Regulations requires that the administration respond with the rapidity demanded by the circumstances of the case, in particular by conducting an administrative investigation, in order to establish the facts giving rise to the complaint, in cooperation with its author. However, that does not preclude that objective reasons, which may relate, inter alia, to the organisational needs of the investigation, may justify a delay in initiating the investigation.

(see para. 105)

See: Campogrande v Commission, paras 42, 53 and 56

11.    Pursuant to Article 113 of the Rules of Procedure, the Court may at any time of its own motion consider whether there exists any absolute bar to proceeding.

In that regard, as the conditions of admissibility of an action under Articles 90 and 91 of the Staff Regulations are a matter of public policy, it is for the Court, where appropriate, to examine them of its own motion, provided that it has first invited the parties to submit their observations.

(see paras 129, 130)

See: C-197/09 RX-II Review M v EMEA [2009] ECR I-12033, para. 57 and the case-law cited; T-498/07 P Krcova v Court of Justice [2009] ECR-SC I-B-1-35 and II-B-1-197, para. 52 and the case-law cited

12.    An investigation procedure carried out pursuant to Article 86(3) of the Staff Regulations for the purpose of determining an official’s request for assistance under Article 24 of the Staff Regulations ends with the final decision of the appointing authority, adopted on the basis of the investigation report, as is clear from Article 3 of Annex IX to the Staff Regulations. It is at the time that that decision is adopted that the official’s legal position is affected.

In that regard, in so far as it refers to the findings of the administrative investigation report, which was completed after the implied decision rejecting the request for assistance took effect and in which the claims of the official concerned were examined in detail, the final decision of the appointing authority must be regarded not as a decision that merely confirms the implied decision but as a decision that replaces the latter decision following a review of the situation by the administration.

(see paras 137, 138)

See: Guillot v Commission, paras 21, 22 and 36; 36/81, 37/81 and 218/81 Seton v Commission [1983] ECR 1789, paras 29 to 31; L v Commission, para. 123; T-154/05 Lo Giudice v Commission [2007] ECR-SC I-A-2-203 and II-A-2-1309, paras 47 and 48

13.    The European Union Courts cannot be criticised for making findings of fact when they examine of their own motion the conditions of admissibility of a claim for compensation submitted to them in such an action, since those conditions are to be found in the documents in the file submitted by the parties for the purpose of determining their claims.

(see para. 150)

14.    In order for a person to whom the Staff Regulations apply to be permitted, in an action pursuant to Articles 90 and 91 of the Staff Regulations, to request annulment of an act adversely affecting him, within the meaning of Article 90(2), he must at the time of bringing the action have a vested and present and sufficiently clear interest in obtaining the annulment of that act and such an interest presumes that the claim should be capable, by its result, of securing an advantage for him. As a condition of admissibility, the applicant’s interest in bringing proceedings must be evaluated at the time when the action is brought. However, in order for an official covered by the Staff Regulations to be able to continue an action for annulment of a decision of the appointing authority, he must retain a personal interest in the annulment of the contested decision. In that regard, in the absence of a present interest in continuing the proceedings, there is no longer any need to adjudicate on the action.

(see para. 156)

See: T-159/98 Torre and Others v Commission [2001] ECR-SC I-A-83 and II-395, paras 30 and 31 and the case-law cited; T-147/04 Ross v Commission [2005] ECR-SC I-A-171 and II-771, para. 25 and the case-law cited; T-35/05, T-61/05, T-107/05, T-108/05 and T-139/05 Agne-Dapper and Others v Commission [2006] ECR-SC I-A-2-291 and II-A-2-1497, para. 35 and the case-law cited

15.    As regards the interest which an official or former official has in seeking annulment of a career development report concerning him, it must be observed that that report constitutes a value judgement made by his immediate superiors on the way in which the official has discharged the tasks entrusted to him and on his conduct in the service during the relevant period and that, independently of its utility in the future, it constitutes written and formal evidence of the quality of the official’s work. Such an appraisal does not merely describe the tasks performed during the relevant period, but also includes an assessment of the personal qualities shown by the individual assessed in the conduct of his professional life. Therefore, every official has a right to have his work recognised by means of an appraisal carried out in a just and equitable manner. Consequently, in accordance with the right to effective judicial protection, an official must in any event be acknowledged as having the right to challenge a career development report concerning him by reason of its content or because it has not been drawn up in accordance with the rules laid down in the Staff Regulations.

Furthermore, an official recognised by the Invalidity Committee as suffering from permanent invalidity regarded as total and automatically retired, pursuant to Articles 53 and 78 of the Staff Regulations, retains an interest since he can be reinstated in a post within an institution, in his career development report being drawn up fairly, objectively and in accordance with normal reporting standards. In that regard, the general provision of Article 53 of the Staff Regulations must be read in conjunction with the specific provisions of Articles 13 to 15 of Annex VIII to those regulations. In the event of reinstatement, that report would be useful for the official’s development within his department or the European Union institutions.

That must always be true except in certain particular cases where an examination of the actual situation of an official declared to be in a state of invalidity shows that he is no longer capable of one day resuming his duties within an institution, having regard to, for instance, findings of the Invalidity Committee responsible for examining his degree of invalidity, from which it is clear that the illness which led to the invalidity is permanent and that no medical review will therefore be necessary, or in the light of statements by the official concerned, from which it is clear that he will not, in any event, be returning to work within an institution.

(see paras 157-159)

See: Ross v Commission, paras 9 and 32; C-198/07 P Gordon v Commission [2008] ECR I-10701, paras 43 and 51; Combescot v Commission, paras 27 and 29

16.    The interpretation which the Court of Justice gives to a rule of European Union law clarifies and defines, where that is necessary, the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force. It follows that the rule, as thus interpreted, may and must be applied even to legal relationships which arose and were established before the Court of Justice delivered its judgment, provided that the conditions enabling an action relating to the application of that rule to be brought before the relevant courts are satisfied. In the light of those principles, it is only in exceptional circumstances that the effects of the interpretation given by the Court would be limited.

(see para. 164)

See: 61/79 Denkavit italiana [1980] ECR 1205, paras 16 and 17; C-367/93 to C-377/93 Roders and Others [1995] ECR I-2229, paras 42 and 43