JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

2 June 2016

Moises Bermejo Garde

v

European Economic and Social Committee (EESC)

‛Civil service — Referral back to the Tribunal after setting aside — Article 12a of the Staff Regulations — Official the victim of harassment — Article 22a of the Staff Regulations — Whistleblowing official — Request for assistance — Rejection — Right to protection — Conditions — Rejection — Consequences — Claim for compensation’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which Mr Moises Bermejo Garde sought, essentially, annulment of the decisions by which the President of the European Economic and Social Committee (EESC) had, first, rejected a request for assistance made on the basis of psychological harassment and refused to refer the matter to the European Anti-Fraud Office (OLAF) and, secondly, relieved him of his former duties and ordered his reassignment, as well as an order for the EESC to pay him damages.

Held:

The decisions of the President of the European Economic and Social Committee of 24 March 2010 relieving Mr Moises Bermejo Garde of his previous duties as Head of Unit of the Legal Service, and of 13 April 2010 in relation to his reassignment, are annulled. The European Economic and Social Committee is ordered to pay Mr Bermejo Garde the sum of EUR 25000. The European Economic and Social Committee shall pay its own costs and is ordered to pay the costs incurred by Mr Bermejo Garde in Cases F‑41/10, T‑530/12 P and F‑41/10 RENV.

Summary

1. Officials — Psychological harassment — Reporting of matters under Article 12a and under Article 22a of the Staff Regulations — Conditions — Official acting honestly — Factors to be taken into consideration — Compliance with the requirements laid down by those provisions — Compliance with other obligations under the Staff Regulations

   (Staff Regulations of Officials, Arts 11, 12a and 22a)

2. Officials — Psychological harassment — Meaning — Conduct seeking to discredit the person concerned or impair his working conditions — Requirement that the conduct be intentional — Person committing harassment acting under the influence of a member of the institution — No effect

   (Staff Regulations of Officials, Arts 12a and 22a)

3. Officials — Psychological harassment — Article 12a of the Staff Regulations — Victim of harassment — Special protection

4. Officials — Whistleblowing official — Article 22a of the Staff Regulations — Reporting matters under Article 22a of the Staff Regulations — Assessment of facts — Factors to be taken into consideration

1.  It is not disputed that, both in the case of an official who considers himself to have been the victim of harassment within the meaning of Article 12a of the Staff Regulations and in that of an official who, pursuant to Article 22a of the Staff Regulations, alerts his superiors within the institution, or the European Anti-Fraud Office, to harassment or other facts giving rise to a presumption of the existence of possible illegal activity detrimental to the interests of the Union, within the meaning of those two provisions, the facts reported must in any case be communicated to the relevant institution in a manner which is compatible with the general obligations laid down in Articles 11 and 12 of the Staff Regulations.

   Officials acting pursuant to those articles are equally subject to the obligations of objectivity and impartiality which are imposed on them, together with the obligation to preserve the dignity of their position, the duty of loyalty and the obligation to act with due regard for the reputation of those concerned and the presumption of their innocence.

   Accordingly, when an official communicates information under Articles 12a and 22a of the Staff Regulations, he is not exempt from his other obligations and duties. On the contrary, he must act judiciously to avoid causing undue harm to his colleagues or to the proper functioning of his department. The communication of improbable information or unfounded facts is likely to have just such harmful effects.

   (see paras 55, 56)

2.  An argument which amounts practically to asserting that there is no psychological harassment where the person accused of harassment is acting, in relation to the official concerned, under the influence of a member of the institution and thus as an agent of that person cannot be accepted.

   That argument is, first, based on a misconception as to the very meaning of harassment. In order for there to be psychological harassment within the meaning of Article 12a(3) of the Staff Regulations, it suffices that the acts of the accused, provided that they were intentional, ‘objectively’ discredited the victim of those acts and impaired his working conditions.

   Secondly, that argument would permanently authorise the Secretary-General of an institution, in other words its highest administrative authority, not to follow the rules which are laid down by the Staff Regulations and by which he is bound, in relation for example to impartiality in the recruitment of staff or acts liable to reflect adversely on an official’s position, or indeed the obligation laid down by Article 22a(1) of the Staff Regulations, the last subparagraph of which provides that ‘this paragraph shall also apply in the event of serious failure to comply... on the part of a Member of an institution’ — merely on the basis that he claimed to have acted under the undue influence of a member of his institution.

   Thirdly, that argument would run contrary to the wording of Article 12a(2) of the Staff Regulations, which does not provide any precise detail as to the source of the psychological harassment at issue, such that, under that article, the institution concerned, where the matter has been duly submitted to it, is equally required to take action where the person accused ‘of [psychological] harassment is a Member of that institution’ and thus to undertake, in this regard, the specific responsibilities incumbent on it.

   (see paras 69-72)

   See:

   Judgment of 12 December 2013 in CH v Parliament, F‑129/12, EU:F:2013:203, para. 51

3.  It is appropriate to hold that any complaint of psychological or sexual harassment against a superior will, in most cases, involve a breakdown in the relation of administrative trust between the officials concerned. However, it is precisely in order to combat such instances of harassment effectively that Article 12a of the Staff Regulations confers ‘special protection’ on an official who has been the victim of such harassment, by providing that such an official, where he has made a complaint under that article and in accordance with the general obligations laid down in Articles 11 and 12 of the Staff Regulations, is not, in principle, to suffer any prejudicial effects on the part of the institution, especially where the relationship of administrative trust between that official and the person accused of harassment (who may, in particular, be the direct superior of the victim) no longer subsists.

   (see para. 76)

4.  It should be noted that Article 22a of the Staff Regulations does not require the whistleblowing official to establish a ‘presumption of serious illegality or serious failure to comply with obligations’, which in any event would be a legal exercise of some complexity and thus not a realistic task for every EU official or other member of staff. That article is limited to providing that any official who becomes aware of facts ‘which give rise to a presumption’ of the existence of conduct ‘which may constitute a serious failure to comply with the obligations’ laid down by the Staff Regulations is to inform his superiors ‘without delay’. It is then the superiors of that official who must, under Art 22a(2) of the Staff Regulations, ‘without delay’, transmit to the European Anti-Fraud Office ‘any evidence’ they believe they have in relation to the irregularities brought to their attention.

   The assessment made by the official as to whether the infringements are prima facie serious, being significantly detrimental to the interests of the Union, must be made, in the first instance, in relation ‘to the discharge of [the] professional duties’ performed by that official.

   (see paras 83, 84)