JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

5 June 2012

Case F‑71/10

Nicola Cantisani

v

European Commission

(Civil service — Members of the contract staff — Conference interpreter — Articles 12a and 24 of the Staff Regulations — Psychological harassment — Conflict of interest — Claim for compensation)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Cantisani seeks annulment of the Commission’s decision rejecting his request for assistance in respect of the psychological harassment which he claims to have suffered between 1999 and 2007, when he performed the duties of a conference interpreter. The applicant also seeks an order that the Commission pay him damages.

Held: The action is dismissed. The applicant is to bear his own costs and to pay those of the Commission.

Summary

1.      Officials — Obligation of administration to provide assistance — Implementation in relation to psychological harassment — Submission of a request for assistance — Duty to act within a reasonable time — Point from which time limit starts to run

(Staff Regulations, Arts 12a, 24 and 90(1))

2.      Officials — Obligation of administration to provide assistance — Field of application — Scope — Administration’s duty to examine complaints of harassment — Requirements of solicitude and rapidity

(Staff Regulations, Arts 12a, 24 and 90(1))

3.      Officials — Psychological harassment — Definition — Conduct intended to discredit the person concerned or to impair his working conditions — Requirement that conduct must be repetitive — Requirement that conduct must be intentional — Scope — No requirement that harasser should have malicious intent

(Staff Regulations, Art. 12a(3))

4.      Officials — Actions — Actions for damages — Action invoking the duty of the administration to make good damage caused to an official by a third party — Admissibility — Condition — Exhaustion of domestic legal remedies — Exception — Absence of effective remedies

(Staff Regulations, Art. 24, first and second paras, and Art. 91)

1.      Articles 12a and 24 of the Staff Regulations do not expressly lay down any time-limit for submitting a request for assistance in respect of psychological harassment. However, in accordance with the principles of legal certainty and legitimate expectations, an official or other staff member wishing to submit such a request must do so within a reasonable period, and a period of five years must be regarded as reasonable for legitimately complaining of psychological harassment to the administration and requesting its assistance.

Moreover, the point at which the time-limit starts to run for submitting a request for assistance in respect of psychological harassment corresponds to the final act of the alleged psychological harasser or, in any event, the point from which the alleged harasser is no longer in a position to repeat his conduct against his victim.

(see paras 67-68)

See:

8 February 2011, F‑95/09 Skareby v Commission, paras 41 to 44, 49 and 53

2.      Under Article 24 of the Staff Regulations, the EU institutions are required to protect their staff against any harassment or degrading treatment whatsoever on the part of their hierarchical superiors. Furthermore, under the obligation to render assistance, 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 establishing the facts and taking the appropriate action in full knowledge of the facts. To that end, it is sufficient that the official or other staff member who is seeking the protection of his institution provide at least some evidence of the reality of attacks of which he claims to have been the victim. When such evidence is provided, the institution concerned is under an obligation to take the necessary measures, in particular to carry out an investigation, with the cooperation of the complainant, in order to establish the facts which gave rise to the complaint.

(see para. 78)

See:

26 January 1989, 224/87 Koutchoumoff v Commission, paras 15 and 16

21 April 1993, T‑5/92 Tallarico v Parliament, para. 31; 5 December 2000, T‑136/98 Campogrande v Commission, para. 42

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. By virtue of the fact that the adjective ‘intentional’ applies to the first condition, and not to the second, it is possible to draw a twofold conclusion. Firstly, 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. Second, 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.

Finally, as the conduct in question must, under Article 12a(3) of the Staff Regulations, be improper, it follows that the classification of harassment is subject to the condition of its being objectively sufficiently real, in the sense that an impartial and reasonable observer, of normal sensitivity and in the same situation, would consider it to be excessive and open to criticism.

(see paras 89-90)

See:

9 December 2008, F‑52/05 Q v Commission, para. 135; 16 May 2012, F‑42/10 Skareby v Commission, para. 135

12 July 2011, T‑80/09 P Commission v Q

4.      The purpose of the second paragraph of Article 24 of the Staff Regulations is to provide compensation for damage caused to an official or member of staff by the actions of a third party or another official referred to in the first paragraph of the same article, provided that he has been unable to obtain compensation from the person who caused that damage. The admissibility of an action for compensation brought by an official or member of staff under the second paragraph of Article 24 of the Staff Regulations is thus subject to the exhaustion of domestic legal remedies in so far as these provide effective protection for the individuals concerned and can result in reparation of the damage alleged.

(see para. 130)

See:

5 October 2006, C‑365/05 P Schmidt-Brown v Commission, para. 78

9 March 2005, T‑254/02 L v Commission, para. 148

Commission v Q, para. 67