JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

5 December 1998

Case T-136/98

Anna Maria Campogrande

v

Commission of the European Communities

‛Officials — Duty to render assistance — Sexual harassment’

Full text in French   II-1225

Application for:

annulment of the implied decision of the Commission rejecting the applicant's request for assistance of 27 June 1997 and, secondly, a claim for damages to make good the harm suffered.

Held:

the implied decision of the Commission rejecting the applicant's request for assistance of 27 June 1997 is annulled. The remainder of the application is dismissed. The Commission shall pay the costs.

Summary

1. Officials — Administration's duty to render assistance — Scope — Duty of the administration to examine complaints of sexual harassment and to inform the complainant of the action taken in respect of the complaint — Requirement of solicitude, speed and diligence

   (Staff Regulations, Arts 24 and 90; Council Resolution 90/C 157/02; Commission Recommendation 92/131)

2. Officials — Administration's duty to render assistance — Duty of the administration to investigate complaints of sexual harassment and to inform the complainant of action taken on the complaint — Sexual harassment — Definition

   (Commission Recommendation 92/131, Annex, point 2)

1.  Although Article 24 of the Staff Regulations is devised primarily to protect Community officials against attacks by third parties, the duty to provide assistance laid down in that provision also exists in a case in which the person responsible for the acts referred to by that provision is another official of the Communities. 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 ascertaining the facts and taking the appropriate action in full knowledge of the facts.

   To that end, it is sufficient that the official who is seeking the protection of his institution provide at least some evidence of the reality of attacks of which he claims he was the victim. When such evidence is provided, the institution concerned is under an obligation to take the necessary measures, in particular to undertake an inquiry, with the cooperation of the complainant, to determine the facts which gave rise to the complaint.

   By virtue of the declaration of principle, which confirmed the essential content of Council Resolution 90/C 157/02 concerning the protection of the dignity of women and men at work and of Commission Recommendation 92/131 on the protection of the dignity of women and men at work, the obligation to provide assistance includes, in particular, the duty of the administration to examine seriously, expeditiously and in total confidentiality, a complaint of sexual harassment and to inform the complainant of the action taken in respect of the complaint.

   Faced with a request for assistance under Article 24 of the Staff Regulations, the conduct of an administration cannot be described as diligent - in particular having regard to the duty, assumed by the Commission in its declaration of principle of 29 February 1996, to examine speedily complaints of sexual harassment and to inform the complainant of the action taken in respect of the complaint - where, without any valid justification to support it, an official is required to submit a complaint under Article 90(2) in order to learn what action was taken on his request for assistance and, subsequently, to bring an appeal in order to learn the outcome of the inquiry opened on the basis of that complaint.

   In matters of sexual harassment, uncertainty regarding the action which the administration intends to take in respect of a complaint is always to the detriment of the dignity of both the complainant and the person complained of, and is always to be avoided, even where the conduct complained of has ceased long before and there is no longer any question of protecting the victim from its being repeated.

   (see paras 41-43, 54, 55)

   See: 18/78 V v Commission [1979] ECR 2093, para. 15; 224/87 Koutchoumoff v Commission [1989] ECR 99, paras 15 and 16; T-5/92 Tallarico v Parliament [1993] ECR II-477, paras 30 and 31

2.  According to paragraph 2 of the code of practice intended to combat sexual harassment annexed to the Commission's recommendation 92/131, in order for conduct of a sexual nature to be described as harassment, it is not necessary that it be considered serious by the person suffering it. Likewise, there is nothing in the code of practice to suggest that the opening of an inquiry to establish the facts giving rise to a complaint of sexual harassment and, where appropriate, the imposition of a sanction on the person found guilty are not necessary if the complainant proves not to have suffered material damage as a result of acts of sexual harassment or if the person accused of it did not intend to humiliate his victim. On the contrary, it is clear from the wording of paragraph 2 of the code of practice that neither the motives nor the intention of the person responsible for the conduct in question and the actual consequences of such conduct are relevant.

   Furthermore, it is not necessary, in order to open an administrative inquiry, that the complainant prove to have clearly indicated to the person who, in their view, harassed them that the conduct in question was unwanted where the conduct, if proven, is not such as a reasonable person of the same sex as the complainant would consider to be merely the manifestation of sexual interest.

   (see paras 46-48)