HB v EIB (Judgment) [2021] EUECJ T-757/19 (15 December 2021)

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European Investment Bank (EIB), represented by G. Faedo and K. Carr, acting as Agents, and by B. Wägenbaur, lawyer,

APPLICATION under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union seeking, first, annulment of the decisions of the EIB of 20 June and 10 October 2019 rejecting, respectively, a complaint of harassment and intimidation, and a request for conciliation, and, second, compensation for the harm allegedly suffered by the applicant as a result of those decisions,

composed of H. Kanninen, President, N. Półtorak (Rapporteur) and M. Stancu, Judges,

having regard to the written part of the procedure and further to the hearing on 5 July 2021,

1 The applicant, HB, entered the service of the European Investment Bank (EIB) on 1 February 2011 as an administrative assistant assigned to the department dealing with the Jaspers initiative (‘the department in question’).

2 Under the terms of the contract which she signed on 21 December 2010, the applicant was initially engaged for a period of three years. On 24 July 2013, the applicant’s fixed-term contract was extended by an addendum for a further period of three years, from 1 February 2014 to 31 January 2017.

3 On taking up her post, the applicant was placed under the line management of W, the Head of Division, and then under the line management of X, the director of the department in question. On occasion, the applicant’s duties also included replacing the assistant of Y, the Director of Advisory Services.

4 On 16 November 2015, at the initiative of X, who was due to retire on 28 February 2016, the applicant met Z, named as X’s successor as director of the department in question.

5 On 22 November 2015, the applicant sent an email to X and Z, complaining that Z had informed her that he did not wish to work with her when he took up his new functions as director of the department in question.

6 In the spring of 2016, the applicant asked Z whether it would be possible to be transferred to the new office which the EIB was opening in Budapest (Hungary). She also informed Y that she was interested in being transferred to that new office.

7 On 29 September 2016, the applicant’s contract was reclassified as a permanent contract, as of 1 February 2017. The contract stated that without prejudice to any other grounds for termination, it would expire automatically at the end of the period of notice given by the EIB upon termination or alteration of the EIB’s mandate under the Jaspers initiative.

8 Between January and April 2017, the applicant was placed on medical leave owing to extreme tiredness.

9 During her medical leave, the applicant applied for the position of Y’s assistant, which had become vacant. The applicant was informed upon her return from medical leave that her application for that position had been rejected.

10 Following conversations with the applicant on 3 and 5 May 2017, Y, by email of 5 May 2017, told the applicant that he and Z had taken note of the fact that she wished to move from her current post and that, in that context, they would seek to assist her to find an appropriate outcome.

11 On 5 May 2017, Y and Z also approached Dr A, the EIB’s Occupational Health Physician, and informed her of their concerns about the applicant. By email of 8 May 2017, Dr A informed Y and Z that she had seen the applicant for a consultation in which she had not detected a pathological situation. Dr A added that taking account of reports prepared by the applicant’s own doctors, the applicant was perfectly fine and was thus fit for work.

12 On 19 and 20 June 2017, the applicant took part in the Jaspers initiative annual stakeholders meeting, which was held in Bratislava (Slovakia). On that occasion, the applicant sent a series of text messages to Y, who was also present in Bratislava. In particular, the applicant sent the following text message to Y on 20 June 2017: ‘[confidential] (1).’

13 On 26 June 2017, the applicant was called by an EIB staff member to a meeting with Y, which was also attended by the Head of the Employee Relations and Wellbeing Division of the Personnel Directorate. Following that meeting, Y sent an email to the applicant, asking her, in essence, to confirm in writing that she acknowledged that the content of the text message sent on 20 June 2017 was inappropriate, that she apologised for sending that text message and that she confirmed that she would refrain in the future from sending such messages. The applicant complied with that request by email of 27 June 2017.

14 On 28 July 2017, the applicant accepted an offer by the EIB of 20 July 2017 of a permanent transfer to the Jaspers initiative’s regional office in Vienna (Austria), with effect from 1 November 2017.

15 By email of 13 September 2017, the applicant informed Z that for various personal reasons she wished ultimately to decline that transfer to Vienna.

16 Z replied to the applicant by an email of 14 September 2017 and informed her that he took note of her decision and would inform the relevant parties. Z also told the applicant that the reason why he had offered her a post in Vienna was simply to help her to get out of the situation she was in.

18 On 29 November 2017, the applicant met Dr B, the EIB’s new Occupational Health Physician, who referred her to Dr C for a psychiatric evaluation.

19 In his psychiatric report dated 30 November 2017, Dr C stated that the applicant was fit for work and that there was no psychiatric pathology. He also noted the existence of a confrontational and stressful work situation and recommended a change of post.

20 On 8 January 2018, Z held an appraisal interview with the applicant relating to her performance in 2017.

21 On 29 January 2018, the applicant sent an email to Y asking him to send her the text message that she had sent him on 20 June 2017 (see paragraph 12 above) and the report which he had written after that message. In an email of 30 January 2018, Y replied that he was puzzled by her request since he considered that the matter was closed after receiving her message of 27 June 2017 (see paragraph 13 above).

22 On 30 January 2018, the EIB offered the applicant a transfer to another division of the department in question, with effect from 1 February 2018. By an email of 21 February 2018, the applicant, in essence, agreed to that transfer, making a number of observations at the same time.

23 The applicant was then placed on a new period of medical leave of two months and returned to work in April 2018.

24 On 2 April 2018, the applicant received her 2017 performance appraisal report. By email of 9 May 2018, the applicant requested an interview with a view to securing a review of her 2017 performance appraisal report.

25 A first interview for the purpose of reviewing the applicant’s 2017 performance appraisal report was held on 30 May 2018. During that interview, the applicant also mentioned the possibility of making use of one of the procedures provided for under the Dignity at Work Policy.

26 In that context, a second interview took place on 19 June 2018. During that interview, the EIB, inter alia, offered the applicant a new post in another of the EIB’s directorates, outside the department in question. By email of 20 June 2018, the EIB asked the applicant to respond to that offer by 27 June 2018.

27 By email of 22 June 2018, the applicant submitted a complaint under the EIB’s internal rules (‘the complaint’) against, in essence, the behaviour of Z and Y and that of the EIB’s administration towards her as constituting psychological harassment within the meaning of Articles 3.6 and 3.6.1 of the EIB’s Staff Code of Conduct and a breach of the internal rules relating to respect for personal dignity. The applicant did not respond to the EIB’s offer of a new post.

28 On 9 July 2018, the applicant sent a memorandum to the EIB, accompanied by supporting documents, as provided for in the ‘Dignity at Work Policy’, setting out her complaint in detail with a view to initiating the formal investigation procedure (‘the investigation procedure’).

29 The applicant was subsequently placed on medical leave from 17 December 2018 until 31 December 2019.

30 In her complaint, the applicant stated that her working conditions had deteriorated significantly from November 2015, following her first meeting with Z (see paragraph 4 above), during which he had clearly stated that he did not wish to work with her when he took up his duties as director in charge of the department in question.

31 In essence, the applicant submitted that in the spring of 2016, suffering from a feeling of distress and uncertainty and a loss of confidence in herself, she had asked Z about the possibility of being transferred to the new office that the EIB was opening in Budapest, which she saw as a ‘ray of light’. Referring to an alleged lack of interest on the part of Z for that transfer request, the applicant had finally turned to Y. The applicant asserted that Y had listened to her and had tried to advise her on the way forward.

32 The applicant also maintained in her complaint that owing to the situation she had begun to suffer from extreme tiredness and to experience certain health problems during 2016, justifying her being placed on medical leave on several occasions from the autumn of 2016.

33 The applicant stated that she had seen another ‘ray of light’ when she had learnt at the start of 2017 that the position of Y’s assistant, which she had occasionally occupied when acting from time to time as a replacement, had become vacant. The applicant therefore applied for that position. After returning from a period of medical leave, the applicant had learnt in April 2017 that her application for that position had not been successful.

34 The applicant in her complaint also connected her return from that medical leave with a further deterioration in her working relations with her line manager Z. She described that situation by referring to ‘psychological warfare’ against her.

35 The applicant stated that she had repeatedly met Y at the beginning of May 2017 and that he had been helpful in relation to a possible transfer to Budapest, which she continued to hope for. In the weeks which followed those meetings, the applicant had again attempted to ask for help from Y on several occasions but he had become more distant.

36 The applicant stated that she had tried to speak with Y on 19 June 2017 at the Jaspers initiative annual stakeholder meeting in Bratislava and that, faced with the fact that he had not listened to her, she had sent him a text message on 20 June 2017 to express her disappointment concerning his behaviour towards her.

37 The applicant submitted that Y had informed her two days later that he had prepared a report owing to the inappropriateness of the text message that she had sent him on 20 June 2017. She complained of having had to submit a public apology on that matter during a meeting on 26 June 2017 and of having had to repeat that apology in writing by sending an email.

38 The applicant stated that, following that episode, Z had told her that Y no longer wanted to see her and that Z had also strongly encouraged her to accept an offer of a transfer to Vienna, which she did in July 2017, even though, for reasons connected with her personal history, she had not wished to do so at all. She submitted that, in order not to suffer the ‘torture’ which a posting to Vienna would cause her, she had finally informed Z, by email of 13 September 2017, that she did not wish to proceed with that transfer.

39 The applicant also claimed that on her return from medical leave at the end of November 2017 she had discovered that the office which she previously occupied had been allocated to another member of staff of the EIB so that she had been forced to use a ‘bureau de passage’ (transit office).

40 Furthermore, given the circumstances, the applicant took issue with the fact that she had to attend a performance appraisal interview with Z at the start of January 2018. She claimed that during that interview she had had to endure very harsh and offensive statements, which Z had expressed in a hostile, frightening and humiliating manner.

41 Lastly, the applicant complained that she had never received any reply to the observations she had made on 21 February 2018 in response to the transfer offer that had been made to her on 31 January 2018. She added that, on her return from medical leave in April 2018, she had begun to seek an informal solution in order to clear her honour, restore her reputation and be transferred to a suitable post, but that, to her great regret, that had not been possible.

– first, to order the opening of an administrative enquiry so that her reputation could be rehabilitated;

– second, to compensate her for the damage connected with all her material and non-material losses, and with the humiliation and injustice which she had had to suffer;

– third, to transfer her to a suitable post, at least equivalent to that which she had been deprived of and falling outside Z’s authority, in a fair, just and considerate working environment, respecting her health and dignity.

43 On 1 October 2018, the Investigation Panel, already in possession of the applicant’s memorandum of 9 July 2018, received a document setting out Z’s position. On 7 October 2018, Y also sent his observations to the Investigation Panel.

44 On 19 November 2018, the Investigation Panel heard the applicant, Z and two witnesses, one chosen by Z and the other at the panel’s initiative, as the applicant had not selected a witness. Neither the applicant nor Z was accompanied or represented, although they had been made aware of that possibility.

45 On 10 December 2018, the Investigation Panel heard Y, who had been on medical leave when the first hearing had taken place, and heard the applicant for a second time.

46 After hearing Y, the Investigation Panel considered that there could be ‘momentum’ to discuss a possible amicable solution. However, that attempt proved unsuccessful.

47 Since the Investigation Panel had been unable to hear the witness nominated by Y, that witness produced a written statement by email.

48 The Investigation Panel also requested information by email from various persons, including the former Head of the Employee Relations and Wellbeing Division and the former Occupational Health Physician.

49 By email of 29 March 2019, the EIB sent the applicant the Investigation Panel’s draft report and asked her to submit her observations.

50 The applicant sent the EIB an email on 3 May 2019 containing her observations on the Investigation Panel’s draft report.

51 On 11 June 2019, the Investigation Panel adopted its report (‘the report’), in which it considered the applicant’s complaint against Z and Y to be manifestly unfounded.

52 In particular, the Investigation Panel examined each of the allegations raised by the applicant in her complaint but did not consider that they could fall within the concept of ‘psychological harassment’.

53 By decision of 20 June 2019 (‘the contested decision’), the President of the EIB informed the applicant that the investigation procedure was closed; he also sent her the Investigation Panel’s report and informed her that the panel had concluded that there had been no harassment of the applicant by Z or Y and that her complaint had therefore been rejected.

54 By letter of 16 September 2019, the applicant’s legal counsel submitted a request for conciliation, under Article 41 of the EIB Staff Regulations, in the version applicable to the dispute resulting from the decision of the EIB’s Board of Directors of 4 June 2013, which entered into force on 1 July 2013, in which the applicant, in essence, requested that the Conciliation Board review the case.

55 By decision of 10 October 2019, the President of the EIB refused the applicant’s request for conciliation (‘the decision refusing the request for conciliation’), on the ground that decisions made following the recommendations of an Investigation Panel in the context of the procedures relating to the Dignity at Work Policy could not be the subject of a conciliation procedure. In that regard, the President of the EIB observed, inter alia, that the aim of a conciliation procedure was to reach an amicable solution, which was not appropriate in relation to harassment.

56 By separate document lodged at the Court Registry on 8 November 2019, the applicant submitted an application for legal aid. That application was registered under the reference T‑757/19 AJ. By order of 24 April 2020, the President of the General Court dismissed that application.

57 By application lodged at the Court Registry on 6 May 2020, the applicant brought the present action.

58 After receiving an application from the applicant on the basis of Article 66 of its Rules of Procedure, the General Court has omitted that party’s name from the public version of the present judgment.

59 By separate document lodged at the Court Registry on 26 November 2020, the applicant submitted a second application for legal aid. That application was registered under the reference T‑757/19 AJ II.

60 By decision of 5 January 2021 of the Court (First Chamber), the Judge-Rapporteur was instructed to examine the possibilities of an amicable settlement of the dispute, in accordance with Article 50a of the Statute of the Court of Justice of the European Union and Article 125a of the Rules of Procedure. A letter to that end was sent to the parties.

61 In their observations on the possibilities of resolving the dispute by means of an amicable settlement lodged on 28 and 31 January 2021 respectively, the EIB and the applicant submitted, in essence, that the conditions for the success of such a procedure were not met. On 2 February 2021, the Court took note of the fact that the attempt at an amicable settlement had failed.

62 By order of 8 March 2021, the President of the First Chamber of the Court granted the applicant legal aid.

63 The parties presented oral argument and replied to the questions put to them by the Court at the hearing on 5 July 2021.

– annul the contested decision and also, so far as necessary, the decision refusing the request for conciliation;

– order the EIB to pay compensation to her, respectively, of EUR 100 000 and EUR 50 000, together with interest, for the non-material damage which she has suffered;

66 In support of her claim for annulment, the applicant puts forward three pleas in law, alleging, respectively:

– (i) breach of the right to have one’s affairs handled impartially, fairly and carefully and a failure to state reasons;

– (ii) errors of assessment in the characterisation of the facts, leading to a breach of the Code of Conduct and the Dignity at Work Policy;

– (iii) breach of the right to be heard and the principle of the confidentiality of the investigation procedure.

67 As regards the merits of the pleas for annulment, it should be noted that the applicant has argued, in particular in connection with the first plea, that the contested decision is vitiated by a failure to state reasons.

68 In that regard, it must be borne in mind that, according to settled case-law, the requirement that a decision adversely affecting a person should state the reasons on which it is based is intended to provide the person concerned with details sufficient to allow him or her to ascertain whether the decision is well founded or whether it is vitiated by an error which will allow its legality to be contested and to enable the Courts of the European Union to review the legality of the contested decision (see judgment of 4 May 2005, Schmit v Commission, T‑144/03, EU:T:2005:158, paragraph 115 and the case-law cited).

69 Furthermore, although the statement of reasons must indicate clearly and unequivocally the reasoning of the institution, it must be assessed on the basis of the circumstances of the case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not, moreover, necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. In particular, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables that person to understand the scope of the measure concerning him or her (see judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 118 and the case-law cited).

70 It follows that a statement of reasons does not need to be exhaustive, but, on the contrary, must be considered sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision (see judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 119 and the case-law cited).

71 Lastly, the duty to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure. Claims and arguments intended to deny that a measure is well founded are thus irrelevant in the context of a plea alleging the lack or inadequacy of a statement of reasons (see judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 120 and the case-law cited).

72 In the present case, it is apparent from the wording of the contested decision that the EIB instructed the Investigation Panel to conduct an administrative enquiry in order to examine whether the applicant had been subjected to psychological harassment, which also included an examination of the applicant’s allegations in that regard. In addition, the President of the EIB stated in that decision that it was apparent from the Investigation Panel’s report that there was no harassment by Z or Y against the applicant. Accordingly, the President of the EIB clearly stated in the contested decision that that decision was based on the Investigation Panel’s report, which was annexed to that decision.

73 Consequently, it must be held that the contested decision and the Investigation Panel’s report together provide the applicant with sufficient details relating to the grounds of the decision and enable the Court to review the legality of that decision.

74 The Court considers it appropriate to examine the arguments raised in the third plea first of all.

The third plea: breach of the right to be heard and of the principle of confidentiality

76 By the first part, the applicant submits that although she was sent the Investigation Panel’s draft report before it was finalised, she was not provided with any summary of the statements of the persons alleged to have harassed her or of the witnesses who were heard. She also submits that she was likewise not heard by the President of the EIB before the contested decision was adopted. According to the applicant, those circumstances amount to a breach of the right to be heard laid down in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

77 Moreover, the applicant adds that she was not given access to the documents referred to in the investigation report which allegedly showed attempts made by Z to protect her reputation and to accommodate her mobility requests. The applicant observes that it was partly on the basis of those documents, to which she did not have access, that the Investigation Panel established that she had erroneously believed that Z was harassing her.

78 In response, the EIB contends, first, that the applicant was given the opportunity to comment effectively on the contents of the draft investigation report before the President of the EIB adopted the contested decision, and that she had done so; second, while acknowledging that the Investigation Panel did not provide the applicant with a separate summary of the record of the interviews with the persons alleged to have harassed her and with the witnesses, the EIB maintains that, in any event, the outcome of the investigation would not have been different if the applicant had had the possibility to comment on the statements made by the two persons concerned and the two witnesses.

79 Article 41(2) of the Charter provides that the right to good administration includes the right of every person to be heard before any individual measure which would affect him or her adversely is taken, the right of every person to have access to his or her file while respecting the legitimate interests of confidentiality and of professional and business secrecy, and the obligation of the administration to give reasons for its decisions.

80 Accordingly, the right of the person concerned to be heard before the adoption of any individual decision affecting him or her adversely is expressly enshrined in the abovementioned provisions of the Charter, which has, since 1 December 2009, the date of entry into force of the Treaty of Lisbon, the same legal value as the Treaties (judgment of 10 January 2019, RY v Commission, T‑160/17, EU:T:2019:1, paragraph 34).

81 More specifically, the right to be heard guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely (see judgment of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraph 58 and the case-law cited).

82 In addition, where a decision can be adopted only if the right to be heard has been respected, the person concerned must be given the opportunity to make known his or her views on the proposed measure effectively, in the context of an oral or written exchange initiated by the administration, proof of which must be adduced by the latter (see, to that effect, judgment of 10 January 2019, RY v Commission, T‑160/17, EU:T:2019:1, paragraph 45 and the case-law cited).

83 It is also apparent from the case-law, which is applicable mutatis mutandis to conflicts between the EIB and members of its staff, that, in a dispute concerning harassment involving EU officials, the person who lodged a complaint of harassment with the Director-General for Personnel is entitled, in order to be able effectively to submit his or her observations to the institution concerned before it took a decision, to receive a summary, at the very least, of the statements made by the person accused of harassment and the various witnesses heard during the investigation procedure and that such a summary must be disclosed while respecting, if necessary, the principle of confidentiality. The Court of Justice noted that that was the case as the statements had been used in the report which had been submitted to the authority that had taken the decision not to pursue the complaint and included recommendations on the basis of which that authority had made its decision (see judgment of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraph 60 and the case-law cited).

84 In the present case, it is apparent from the file and, in particular, from the draft investigation report sent to the applicant on 29 March 2019 (see paragraph 49 above) and from the Investigation Panel’s report, that, in order to rule on the applicant’s complaint, that panel had not only the witness statements of Z and Y at its disposal, as provided in the written documents they had submitted (see paragraph 43 above) and as expressed at their respective hearings (see paragraphs 44 and 45 above), but also other witness statements obtained during the hearings (see paragraph 44 above) or directly in writing (see paragraph 47 above). In addition, the Investigation Panel also requested information by email from other persons (see paragraph 48 above). All of those statements and information provided the Investigation Panel with an overall, detailed view of the truth of the facts and how those facts were perceived by the various participants in the case.

85 It is also clear from the report that the Investigation Panel possessed documents which showed attempts made by Z to protect the applicant’s reputation and to accommodate her mobility requests, documents which, it has been made clear, the applicant did not know of, even though those documents appear to have played a decisive role in the Investigation Panel’s assessment and, therefore, in the contested decision, by which the President of the EIB rejected the applicant’s complaint.

86 Since all the witness statements and information referred to in paragraph 84 above and the documents referred to in paragraph 85 above were taken into account by the President of the EIB for the purpose of adopting the contested decision, it was important that the applicant be able to comment on them.

87 However, it is apparent from the case-law that those documents should have been disclosed to the applicant while respecting legitimate expectations as regards confidentiality, which must therefore be balanced against the right to be heard (see, to that effect, judgment of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraph 63 and the case-law cited).

88 In that regard, it has already been held that in order to ensure that witness statements remain confidential and that the objectives of such confidentiality are respected, while ensuring that the applicant is properly heard before a decision adversely affecting him or her is adopted, certain techniques may be used, such as anonymisation, or even disclosure of the substance of the witness statements in the form of a summary, or the redaction of some of the content of those statements (see judgment of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraph 66 and the case-law cited).

89 While it is true that the Investigation Panel’s report referred to extracts of the witness statements and information mentioned in paragraph 84 above, it must nevertheless be noted, as the EIB expressly acknowledges in the present action (see paragraph 78 above), that the applicant did not receive, at the very least, an anonymised summary of the statements of the various witnesses and was not heard on those statements, with the result that she was not put in a position to be able effectively to submit observations on their content before the President of the EIB adopted the contested decision, which adversely affects her. The same observation must be made as regards the documents referred to in paragraph 85 above.

90 That failure as regards disclosure constitutes an irregularity that inevitably affected both the opinion of the investigation Panel and the contested decision (see, by analogy, judgment of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraph 73). Indeed, if the applicant had been given the opportunity to be properly heard, she might have persuaded the President of the EIB that a different assessment of the facts and the various contextual factors that were decisive in that decision was possible and that a different weight should be applied to them.

91 It cannot therefore be ruled out that the decision taken by the President of the EIB on the complaint lodged by the applicant might have been different.

92 It follows that, in the present case, the failure to disclose at the very least a summary and not just selected extracts of the witness statements and information referred to in paragraph 84 above and of the documents referred to in paragraph 85 above, is contrary to the requirements of Article 41 of the Charter.

93 It follows from the foregoing that the first part of the third plea in law must be upheld and the contested decision annulled, without there being any need to analyse the second part of the present plea or the first and second pleas in law.

94 As a result of the annulment of the contested decision, there is likewise no need to rule on the claim for annulment of the decision rejecting the request for conciliation since the applicant seeks that annulment only ‘so far as necessary’ and since the decision rejecting the request for conciliation is relevant only in relation to the contested decision for which conciliation was sought.

95 The applicant makes two claims for compensation, which are to be examined in turn.

96 The EIB contends that the claims for compensation should be rejected, disputing any fault on its part.

Compensation for non-material harm that can be separated from the unlawfulness affecting the contested decision

97 The applicant claims that she has suffered non-material harm that can be separated from the unlawfulness which affects the contested decision and which, in any event, could not be compensated for in full solely by the annulment of that decision.

98 That non-material damage, which she estimates ex æquo et bono at EUR 100 000, stems in essence, in the first place, from the fact that the EIB did not adopt any provisional measure to protect her by transferring her away from Z, although several doctors had recommended that step, and, in the second place, from the bias and errors of assessment of the Investigation Panel that have affected her trust in the EIB and reinforced a feeling of injustice on her part.

99 In that regard, it should be borne in mind that, according to settled case-law, whether the EIB incurs non-contractual liability is subject to a number of conditions being met, namely the conduct complained of must be unlawful, actual harm must have been suffered and there must be a causal link between the alleged conduct and the damage purportedly suffered (see judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 165 and the case-law cited).

100 Furthermore, according to settled case-law also applicable mutatis mutandis to disputes between the EIB and its members of staff, disputes between the European Union and its staff, irrespective of the employment regime applied to its staff, are subject to particular rules that form a special category compared with those deriving from the general principles governing the non-contractual liability of the Union in the context of Article 268 TFEU and the second paragraph of Article 340 TFEU. Unlike any other individual acting under those provisions, an official or other member of staff of the European Union is connected to the institution or agency to which he or she belongs by a legal employment relationship involving a balance of specific reciprocal rights and obligations, which is reflected in the institution’s duty to have regard for the welfare of the person concerned. That balance is essentially intended to preserve the relationship of trust which must exist between the institutions and their members of staff in order to guarantee to the public that tasks in the public interest entrusted to the institutions are performed effectively. It follows that where it acts as an employer, the Union’s liability is greater, in the form of the obligation to compensate damage caused to its members of staff as a result of any unlawful act committed by it as employer, and is not confined, as in the case of actions brought under Article 268 TFEU and the second paragraph of Article 340 TFEU, to sufficiently serious breaches of a rule of law intended to confer rights on individuals (see judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 166 and the case-law cited).

101 In so far as one of the three conditions set out in paragraph 99 above is not satisfied, the action must be dismissed in its entirety without it being necessary to examine the other conditions for non-contractual liability (see judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 167 and the case-law cited).

102 In the present case, as regards the absence of any provisional measure to move the applicant during the investigation procedure, it must be borne in mind that the opinions of medical experts are not, in any event, such as to establish, in themselves, the existence in law of harassment or of the institution’s negligence in the light of its duty to provide assistance. In particular, it is apparent from the case-law that while the medical officers of the institution may reveal that officials or other members of staff have psychological problems, they cannot establish that those problems result from psychological harassment, since, to make such a finding of harassment, the authors of the medical certificate would necessarily have to rely exclusively on the description that the persons concerned have made of their working conditions in the institution in question and would not be able to test that version of events against the version advanced by the person whose conduct was complained of by those officials or other members of staff (see judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 72 and the case-law cited).

103 Furthermore, unlike the internal rules of other institutions, there is no express obligation on the EIB under the Code of Conduct or the Dignity at Work Policy to adopt provisional distancing measures. Nevertheless, Article 3.6 of the Code of Conduct provides that, ‘the [EIB] is obliged to show those in question concern and offer its support’. Accordingly, it may be inferred from that duty of concern that the EIB may in some circumstances be required to adopt certain provisional measures.

104 It is apparent from the documents before the Court that efforts were made by the EIB to enable the applicant to find a post outside the department in question and that, in particular, the EIB proposed to the applicant on 20 July 2017 that she be permanently transferred to the regional office of the Jaspers initiative in Vienna (see paragraph 14 above). The EIB also offered the applicant another post in a different EIB directorate at the interview of 19 June 2018 (see paragraph 26 above). Accordingly, it has to be noted that the EIB, in the space of less than a year, made two offers of transfer outside the department in question to the applicant.

105 In those circumstances, the applicant is not justified in arguing that the EIB did not respond to her situation with all due concern in that it did not try and enable her to find a post outside the department in question.

106 The applicant’s claim for compensation in respect of the EIB’s alleged failure to adopt provisional distancing measures must therefore be rejected.

107 As regards the damage resulting from the Investigation Panel’s bias and errors of assessment, it is apparent from the applicant’s pleadings that her claim for compensation must be interpreted as seeking to remedy the harmful consequences stemming from the contents of the investigation report, the unlawful nature of which is established, inter alia, by the evidence presented in support of her application for annulment of the contested decision.

108 In that regard, it must be borne in mind that, according to settled case-law, the annulment of an unlawful measure may constitute, in itself, appropriate and, in principle, sufficient compensation for any non-material damage which that measure may have caused (see judgment of 7 February 1990, Culin v Commission, C‑343/87, EU:C:1990:49, paragraph 26 and the case-law cited). However, that would not be the case where the applicant shows that he or she has sustained non-material harm that can be separated from the illegality on which the annulment is based and that cannot be compensated in full by that annulment (see judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 180 and the case-law cited).

109 In the present case, the non-material harm which the applicant claims is due, in essence, to the feeling of injustice and the torment caused by the fact that she had to undergo a pre-contentious procedure and then a contentious procedure in order to ensure recognition of her rights. According to the applicant, the rejection of her complaint placed her in a situation of anxiety, uncertainty and dismay which, in her view, constitutes non-material harm that cannot be compensated in full solely by the annulment of the contested decision.

110 However, suffice it to note, in order to reject that claim, that the application does not provide the slightest evidence as to the extent of the non-material harm allegedly suffered by the applicant.

111 In any event, the Court considers that the annulment of the contested decision constitutes in itself appropriate compensation for the non-material harm allegedly suffered by the applicant.

112 In those circumstances, the applicant’s first claim for compensation must be rejected.

Compensation for the damage resulting from the loss of an opportunity to settle the dispute amicably

113 The applicant maintains that she should be compensated for the loss of a chance to settle the dispute amicably and to avoid having to bring an action before the Court, since her request for conciliation of 16 September 2019 was rejected on unlawful grounds. She estimates that damage ex aequo et bono at EUR 50 000. In particular, the applicant claims that the EIB erred in rejecting her request for conciliation on the ground that decisions made following the recommendations of the Investigation Panel in the context of the procedures relating to the Dignity at Work Policy could not be subject to a conciliation procedure (see paragraph 55 above).

114 According to the case-law, in order to determine the amount of compensation to be paid in respect of loss of opportunity, it is necessary, having identified the nature of the opportunity of which the official has been deprived, to determine the date from which he or she would have been given that opportunity, and then quantify that opportunity and, lastly, explain the financial consequences for the official of that loss of opportunity (see, by analogy, judgment of 13 March 2013, AK v Commission, F‑91/10, EU:F:2013:34, paragraph 91 and the case-law cited).

115 In addition, according to case-law, where possible, the opportunity of which an official has been deprived must be calculated objectively, in the form of a mathematical coefficient resulting from an accurate analysis. However, where that opportunity cannot be quantified in this way, it is accepted that the damage suffered may be assessed ex æquo et bono (see, by analogy, judgment of 13 March 2013, AK v Commission, F‑91/10, EU:F:2013:34, paragraph 92 and the case-law cited).

116 In the present case, the documents before the Court show that by decision of 10 October 2019 the President of the EIB rejected the applicant’s request for conciliation on incorrect grounds. Indeed, by claiming that decisions adopted following the recommendations of the Investigation Panel in the context of the procedures relating to the Dignity at Work Policy could not be subject to a conciliation procedure (see paragraph 55 above), even though only disciplinary proceedings were expressly excluded from the scope of the disputes which may be subject to such a procedure, the President of the EIB disregarded the provisions of Article 41 of the EIB Staff Regulations, in the version in force at the time, by introducing a restriction which those regulations did not provide for. In that regard, the EIB confirmed moreover, at the hearing, that certain decisions adopted in the context of the procedures relating to the Dignity at Work Policy had been subject to a conciliation procedure.

117 It follows that the first condition for the EIB to incur liability, namely the unlawfulness of the conduct complained of, is satisfied.

118 Accordingly, the applicant lost the opportunity to settle the dispute amicably since her request for conciliation was rejected on unlawful grounds, causing her damage.

119 In the present case, however, it is impossible for the Court to determine a mathematical coefficient reflecting the loss of opportunity suffered, first, because that opportunity has no connection with the applicant’s salary and, second, because the applicant has failed to submit to the Court detailed evidence on which to determine that coefficient, with the applicant, in particular, stating merely that she had lost an opportunity to have her situation reviewed.

120 Therefore, making use of the Court’s power to assess the damage suffered ex æquo et bono, it is appropriate to award the applicant a fixed sum in compensation for the loss of opportunity that she suffered as a result of the failure on the part of the EIB to initiate a conciliation procedure, when such a procedure should have been initiated pursuant to Article 41 of the EIB Staff Regulations, in the version in force at the material time.

121 In assessing the amount of that compensation, it is necessary to take into account the fact that the mere existence of a chance, even if only slight, for the applicant to have the claims set out in her complaint upheld following a conciliation procedure is sufficient to establish the existence of damage for which appropriate compensation can be awarded.

122 In the light of the foregoing, the Court makes an ex æquo et bono assessment of the compensation to be awarded to the applicant in respect of the damage resulting from the loss of an opportunity to have her complaint reviewed owing to the failure on the part of the EIB to initiate a conciliation procedure at the fixed sum of EUR 1 000.

123 Having regard to all the foregoing considerations, the Court must annul the contested decision, order the EIB to pay the applicant the sum of EUR 1 000 in respect of the loss of opportunity to settle the dispute amicably, and dismiss the action as to the remainder.

124 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

125 Since the EIB has been largely unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the applicant.

1. Annuls the decision of 20 June 2019 of the President of the European Investment Bank (EIB);

2. Orders the EIB to pay HB the sum of EUR 1 000 in respect of the loss of opportunity to settle the dispute amicably;

The third plea: breach of the right to be heard and of the principle of confidentiality

Compensation for non-material harm that can be separated from the unlawfulness affecting the contested decision

Compensation for the damage resulting from the loss of an opportunity to settle the dispute amicably

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> HB v EIB (Judgment) [2021] EUECJ T-757/19 (15 December 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/T75719.html Cite as: [2021] EUECJ T-757/19, ECLI:EU:T:2021:890, EU:T:2021:890

Court of Justice of the European Communities (including Court of First Instance Decisions)