Contents
Judgment of the General Court (First Chamber, Extended Composition)29 June 2018note(Civil service — Contract staff — Article 24 of the Staff Regulations — Request for assistance — Article 12a of the Staff Regulations — Psychological harassment — Advisory Committee on Harassment and its Prevention at the Workplace — Decision rejecting the request for assistance — Right to be heard — Audi alteram partem rule — Refusal to communicate the opinion of the Advisory Committee and the records of witness hearings — Length of the administrative procedure — Reasonable time)In Case T‑218/17,HF, a former member of the contract staff for auxiliary tasks of the European Parliament, represented by A. Tymen, lawyer,vEuropean Parliament, represented by E. Taneva and M. Ecker, acting as Agents,THE GENERAL COURT (First Chamber, Extended Composition),composed of I. Pelikánová, President, V. Valančius, P. Nihoul, J. Svenningsen (Rapporteur) and U. Öberg, Judges,Registrar: M. Marescaux, Administrator,having regard to the written part of the procedure and further to the hearing on 23 February 2018,gives the following
Judgment
Background to the dispute
1The applicant, HF, was employed by the European Parliament’s authority empowered to conclude contracts of employment (‘the AECE’) through successive contracts from 6 January to 14 February 2003, 15 February to 31 March 2003, 1 April to 30 June 2003 and 1 to 31 July 2003, as a member of the staff for auxiliary tasks, an employment category provided for in the Conditions of Employment of Other Servants of the European Union, in the version thereof prior to 1 May 2004. The applicant was assigned to the Audiovisual Division, which has since become a unit (‘the Audiovisual Unit’) of the Media Directorate of the Directorate-General (DG) for Information and Public Relations, which has since become DG Communication. In that role she performed the tasks of assistant in category B, group V, class 3.
2The applicant was subsequently employed from 1 August 2003 to 31 March 2005, by a company established in France and providing services to the Parliament, as a production administrator in order to meet increased demand for services relating to production in the Audiovisual Unit.
3The applicant was again employed by the AECE, this time as a member of the contract staff assigned to the Audiovisual Unit from 1 April 2005 to 31 January 2006. She was then assigned to the same unit as a member of the temporary staff from 1 February 2006 to 31 January 2012.
4From 1 February 2012 to 31 May 2015, the applicant remained employed as a member of contract staff for auxiliary tasks assigned to the Audiovisual Unit through successive fixed-term contracts.
5The applicant was placed on sick leave as from 26 September 2014 and has not resumed employment with the Parliament since that time.
6By letter of 11 December 2014, addressed to the Secretary-General of the Parliament (‘the Secretary-General’), with the Chairman of the Advisory Committee on Harassment and its Prevention at the Workplace (‘the Advisory Committee’), the President of the Parliament and the Director-General of DG Personnel of the General Secretariat of the Parliament (the Director-General for Personnel’) in copy, the applicant, pursuant to Article 90(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), submitted a request for assistance within the meaning of Article 24 of the Staff Regulations (‘the request for assistance’), those articles being applicable by analogy to members of the contract staff under Articles 92 and 117 respectively of the Conditions of Employment of Other Servants of the European Union.
7In support of the request for assistance, the applicant claimed that she had been the victim of psychological harassment by the head of the Audiovisual Unit, which harassment took the form of behaviour and spoken and written language by the Head of Unit, in particular during unit meetings. She requested that urgent measures be adopted in order to protect her immediately from her alleged harasser and that an administrative inquiry be opened by the AECE in order to establish the reality of the facts.
8By letter of 13 January 2015, the Head of the Human Resources Unit (‘the Human Resources Unit’) of the Resources Directorate of DG Personnel, Mr R.N., who was also the Chairman of the Advisory Committee, acknowledged receipt of the applicant’s request for assistance and informed her that the request would be forwarded to the Director-General for Personnel, who would rule on it in his capacity as AECE within 4 months, upon the expiry of which, if applicable, an implied decision refusing that request could be deemed to have been taken and subsequently be the subject of a complaint pursuant to Article 90(2) of the Staff Regulations.
9By letter of 23 January 2015, the applicant’s legal advisor informed the Director-General for Personnel inter alia that the Head of the Audiovisual Unit had been informed that the request for assistance had been made and an administrative inquiry opened by the AECE. That information was contained in the records of a meeting of the Audiovisual Unit, contributing to the dissemination of certain confidential information not only to the applicant’s colleagues, but also to certain persons external to the institution. During that meeting, the Head of Unit also announced that the applicant would not be returning to the Audiovisual Unit and that, consequently, a restructuring of the Newsdesk Hotline sector of the Audiovisual Unit (‘the Newsdesk Hotline’), which she coordinated, would have to be undertaken.
10By email of 26 January 2015, an official of the Contract Staff and Accredited Parliamentary Assistants Recruitment Unit of the Directorate for Human Resources Development of DG Personnel sent the applicant a ‘memorandum confirming [her] reassignment as from 21 [January] 2015’. That memorandum, also dated 26 January 2015, stated that the applicant would be assigned, with retroactive effect to 21 January 2015, to the European Union Visitors Programme Unit (‘the Visitors Programme Unit’) of the Directorate for Relations with the Citizens of DG Communication and that, apart from the change in assignment, her contract of employment was otherwise unaffected.
11By letter of 4 February 2015 (‘the decision of 4 February 2015’), the Director-General for Personnel replied to the letter from the applicant’s legal advisor of 23 January 2015 by stating that a measure keeping the applicant away from the Head of the Audiovisual Unit had been adopted, consisting in her being reassigned to the Visitors Programme Unit. With respect to the information revealed by the Head of Unit during the meeting of the Audiovisual Unit, the applicant was told that that information ‘[had] to be understood in the context of the distancing measure adopted in respect of [her] and not as intimidation intended for the other members of her unit [and] even less as a new sign of harassment directed at [her]’. The Director-General for Personnel further informed the applicant that, following an in-depth examination of her file and in response to her request that an administrative inquiry be opened, it had been decided to forward that file to the Advisory Committee, whose Chairman would keep her informed of any subsequent developments. The Director-General for Personnel considered that, in so doing, he had addressed the request for assistance which, within the scope of his duties, brought about the ‘closure of [the applicant’s] file’.
12By letter of 12 February 2015, the applicant’s legal advisor requested the Director-General for Personnel to specify the scope of the measure announced by him in his decision of 4 February 2015 and, in particular, to state whether the distancing measure adopted in respect of the applicant was temporary in nature. He further pointed out that, under the Internal Rules for the Advisory Committee on Harassment and its Prevention at the Workplace (‘the Internal Rules on Harassment’), in particular Articles 14 and 15 thereof, it was not for the Advisory Committee to rule on a request for assistance. It was required merely to provide a confidential report to the Secretary-General who, in any event, was responsible for taking measures pursuant to Article 16 of those internal rules. The applicant thus took the view that the Director-General for Personnel — and not the Advisory Committee — remained the person responsible for ruling on her request for assistance in his capacity as AECE.
13By letter of 4 March 2015, the Director-General for Personnel reiterated his view that, by his decision to forward the request for assistance to the Advisory Committee, he had ‘closed the file as regard[ed] the scope of his duties’ and that, even if the Parliament had entrusted him with the AECE’s powers to rule on requests for assistance submitted pursuant to Article 24 of the Staff Regulations, the fact remained that he could not disregard the Internal Rules on Harassment, which entrusted the Secretary-General alone with the task of acting when confronted with a situation of harassment over a protracted period. He further stated that the distancing measure adopted in respect of the applicant removing her from the Audiovisual Unit and placing her with the Visitors Programme Unit had also been put in place both at her request, as put forward in the request for assistance, and ‘in the interest of the service in order to address increasing needs within the [Visitors Programme Unit]’ and that the reassignment would continue until the end of her contract.
14By email of 17 March 2015, the applicant was summoned by the Advisory Committee to present her case on 25 March 2015.
15By letter dated 24 April 2015, the applicant lodged a complaint pursuant to Article 90(2) of the Staff Regulations against: first, the reassignment decision in so far as, by that decision, the AECE reassigned her permanently and not temporarily to the Visitors Programme Unit; secondly, the decision of 4 February 2015, by which the Director-General for Personnel ruled on the request for assistance by considering the case to be closed ‘within the scope of his duties’; and, thirdly, a decision allegedly taken on 11 April 2015, by which the AECE impliedly refused the request for assistance.
16By decision of 28 May 2015, taken in response to the applicant’s request to renew her contract made on 22 May 2015, the AECE decided not to renew the contract, since there was no need for additional staff in the Visitors Programme Unit to which she had been assigned (‘the decision not to renew the contract’).
17By letter of 20 August 2015, the Secretary-General, in his capacity as AECE, decided to uphold in part the applicant’s complaint of 24 April 2015 (‘the decision of 20 August 2015’). Regarding the reassignment of the applicant to the Visitors Programme Unit, the Secretary-General noted that that reassignment was necessarily temporary in nature and had to be maintained for the duration of the administrative inquiry, which was still ongoing, whilst essentially rejecting the arguments put forward by the applicant challenging the merits or the detailed rules for the distancing measure.
18However, in the decision of 20 August 2015, the Secretary-General decided to amend the decision of 4 February 2015 in that, in that decision, the Director-General for Personnel had considered, incorrectly, that the AECE had closed the file relating to the request for assistance. In that regard, he stated that the request for assistance would give rise subsequently to a definitive decision of the Director-General for Personnel and that, consequently, contrary to the applicant’s assertion, no implied decision refusing the request for assistance had been taken, with the result that her claim was inadmissible on this point.
19By application lodged at the Registry of the European Union Civil Service Tribunal on 17 November 2015, the applicant brought an action under Article 270 TFEU, initially registered as Case F‑142/15, for annulment inter alia of the, in her view implied, decision reached on 11 April 2015, by which the AECE rejected the request for assistance and for annulment of the decision of 20 August 2015 rejecting the complaint of 24 April 2015.
20By letter of 8 December 2015, the Director-General for Personnel informed the applicant of his intention to consider her request for assistance unfounded further to, inter alia, the Advisory Committee’s hearing the submissions of the Head of Unit and of 14 other officials and servants of the Audiovisual Unit. In accordance with Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, he invited the applicant to submit her observations on his intention to declare the request for assistance unfounded, at her convenience and orally or in writing. The applicant was given until 20 December 2015 to inform the Director-General for Personnel of her intentions in that regard.
21By letter of 17 December 2015, the applicant’s legal advisor informed the Director-General for Personnel that the applicant would lodge her observations in writing. However, relying in that regard on the judgment of 23 September 2015, Cerafogli v ECB (T‑114/13 P, EU:T:2015:678), he requested to be provided with what he called ‘the inquiry report’ drawn up by the Advisory Committee, which request he reiterated by letter of 5 February 2016.
22By letter of 9 February 2016, the Director-General for Personnel gave the applicant until 1 April 2016 to lodge her written observations on his intention to refuse the request for assistance. He further stated that the Advisory Committee had merely provided him with an opinion finding that the applicant had not been the victim of any psychological harassment. It was not unusual that the Advisory Committee had not provided him with any report such as referred to in Article 14 of the Internal Rules on Harassment as such reports were drawn up by the Advisory Committee only when it found that there was psychological harassment.
23By application lodged at the Registry of the Civil Service Tribunal on 14 March 2016, the applicant brought an action, initially registered as Case F‑14/16, inter alia for annulment of the decision not to renew her contract.
24On 1 April 2016, the applicant lodged her written observations with regard to the letters from the Director-General for Personnel of 8 December 2015 and 9 February 2016. In those observations, whilst reiterating the fact that the Head of the Audiovisual Unit’s behaviour towards her constituted psychological harassment within the meaning of Article 12a of the Staff Regulations, the applicant challenged in particular the statement by the Director-General for Personnel that the Advisory Committee did not draw up a report within the meaning of Article 14 of the Internal Rules on Harassment but merely issued an opinion. In that regard, she maintains that the refusal by the Director-General for Personnel to send her the findings of the Advisory Committee in full infringed her rights of defence and rendered the observations she submitted ineffective.
25By decision of 3 June 2016, the Director-General for Personnel, acting in his capacity as AECE, refused the request for assistance (‘the contested decision’). In that decision, he stated inter alia that the applicant had been provided with a complete and detailed set of reasons for why, on 8 December 2015, he intended to refuse the request for assistance, whilst pointing out that he alone was responsible for handling the request for assistance and that the Advisory Committee had no decision-making power in that regard. In his view, the applicant had no subjective right to be provided with an inquiry report, opinion or other records of witness hearings conducted by the Advisory Committee.
26As to the procedural irregularities alleged by the applicant, the Director-General for Personnel considered inter alia that, in putting the Chairman of the Advisory Committee in copy when submitting the request for assistance, the applicant had not formally lodged a complaint with the Advisory Committee for the purposes of the Internal Rules on Harassment.
27As to the substance, the Director-General for Personnel upheld his analysis as set out in the letter of 8 December 2015 and accordingly decided not to endorse the position that the situation as described by the applicant came within the definition of psychological harassment within the meaning of Article 12a of the Staff Regulations.
28Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), Cases F‑142/15 and F‑14/16 were transferred to the General Court in the state in which they stood on 31 August 2016. They were registered, respectively, as Cases T‑570/16 and T‑584/16, then assigned to the First Chamber of the General Court.
29On 6 September 2016, the applicant lodged a complaint against the contested decision under Article 90(2) of the Staff Regulations. In support of that complaint, she pleaded infringement of the rights of the defence, of Article 41 of the Charter of Fundamental Rights, of the right to be heard and of the audi alteram partem rule and also irregularities in the procedure followed by the Advisory Committee, manifest errors of assessment, infringement of Articles 12a and 24 of the Staff Regulations and infringement of the obligation to provide assistance and of the duty of care.
30By decision of 4 January 2017, the Secretary-General, in his capacity as AECE, rejected that complaint (‘the decision rejecting the complaint’).
31With regard to the applicant’s complaint concerning the AECE’s failure to provide the report drawn up by the Advisory Committee and the records of witness hearings, the Secretary-General considered inter alia that, in the light of the case-law contained in the judgments of 11 July 2013, Tzirani v Commission (F‑46/11, EU:F:2013:115), and of 23 September 2015, Cerafogli v ECB (T‑114/13 P, EU:T:2015:678), there was no obligation on the AECE to send those documents to the applicant, inter alia because, within the Parliament, the Advisory Committee was required to work with the utmost confidentiality and its proceedings were secret. Accordingly, in order to ensure freedom of speech for all those involved, including witnesses, it was impossible for the AECE to send those documents to the applicant.
32The Secretary-General further made clear that the members of the Advisory Committee did not sit on the committee by reason of their functions in the Parliament’s administration and there was no hierarchical subordinate relationship between those members and the witnesses who had been heard by the Advisory Committee. In the case of the two witnesses whom the applicant would have liked to be heard, the Secretary-General stated that they had refused to provide testimony. As regards the hearing of the two doctors, requested by the applicant, he pointed out that they had never witnessed what took place between the applicant and the alleged harasser and that, therefore, their testimony was not relevant.
33Lastly, as regards the existence in the present case of psychological harassment within the meaning of Article 12a(3) of the Staff Regulations, the Secretary‑General conceded that the evidence put forward by the applicant might demonstrate acts that were intentional and repetitive within the meaning of that provision. However, he considered as follows:‘It must not be forgotten that the alleged harasser [is the applicant’s] hierarchical superior. It is in the nature of the functions of a head of unit that he must remind his staff that they should follow his instructions, contribute to good collaboration between colleagues, share work-related information appropriately and provide explanations when they have been absent from meetings. Thus, considered overall, the facts relied upon by [the applicant] do not appear to constitute improper conduct by a head of unit in relation to a subordinate. The facts rather suggest that this head of unit considered that his leadership was being questioned, which gave rise to tension at a time when action was needed in order to improve the operation of the service. The alleged belittling of [the applicant] in front of her colleagues without her having the opportunity to defend herself occurred indeed at meetings held in order to discuss problems within the service. The words attributed to the alleged harasser, although of course regrettable, must therefore be seen against that background of tension and problems …’
Procedure and forms of order sought
34By application lodged at the Registry of the Court on 12 April 2017, the applicant brought the present action.
35By judgments of 24 April 2017, HF v Parliament (T‑584/16, EU:T:2017:282), and HF v Parliament (T‑570/16, EU:T:2017:283), the Court dismissed the actions previously brought by the applicant.
36By letter from the Registry of 1 September 2017, the Parliament was requested, as a measure of organisation of procedure, to produce before the Court the report or, as appropriate, the findings that the Advisory Committee had forwarded to the AECE, without prejudice to the provisions of Article 92(3) and Article 103 of the Rules of Procedure of the General Court.
37By letter of 12 September 2017, the Parliament explained that the deliberations of the Advisory Committee were secret and that the names of the witnesses heard by the committee were to be kept confidential. In those circumstances, it asked for the opinion of the Advisory Committee to be treated as confidential within the meaning of Article 103 of the Rules of Procedure.
38By order of 21 September 2017, the Court directed the Parliament, under Article 92(3) of the Rules of Procedure, to produce the report or the opinion which the Advisory Committee had forwarded to the AECE in the present case and which the Parliament had refused to produce in response to the measure of organisation of procedure adopted by the Court, making clear that that document would not be communicated to the applicant at that stage of the procedure.
39By letter from the Registry of 22 September 2017, the Parliament was also requested, as a measure of organisation of procedure, to tell the Court whether records of the witness hearings had been drawn up in the present case by the Advisory Committee or by another Parliamentary body. If that were so, the Parliament was requested to produce them before the Court, without prejudice to the provisions of Article 92(3) and Article 103 of the Rules of Procedure.
40On 25 September 2017, the Parliament produced the findings of the Advisory Committee dated 12 October 2015, which took the form of an opinion (‘the Advisory Committee’s opinion’). By letter of the same day, it asked, for the same reasons as those it had given with regard to that opinion, that the records of the witness hearings conducted by the Advisory Committee should be treated as confidential within the meaning of Article 103 of the Rules of Procedure.
41By order of 2 October 2017, the Court directed the Parliament, under Article 92(3) of the Rules of Procedure, to produce the records of the witness hearings conducted by the Advisory Committee, which the Parliament had refused to produce in response to the measure of organisation of procedure adopted by the Court, making clear that that document would not be communicated to the applicant at that stage of the procedure.
42Following a double exchange of pleadings, the written procedure was closed on 10 October 2017.
43On 12 October 2017, the Parliament produced the records of the witness hearings conducted by the Advisory Committee which, in its view, must remain confidential vis-à-vis the applicant.
44By order of 30 November 2017, the Court directed the Parliament to produce a non-confidential version of the opinion of the Advisory Committee, omitting the names of the 14 persons who had been heard, together with a non-confidential version of the records of the witness hearings conducted by that committee, omitting only data that would make it possible to establish beyond reasonable doubt the identity of the various witnesses. On the same date, the Court, as a measure of organisation of procedure, also put questions for written answers to the parties, who complied with that request within the period prescribed.
45On 12 and 15 December 2018, respectively, the applicant and the Parliament replied to the questions put by the Court as a measure of organisation of procedure.
46Following production by the Parliament of a non-confidential version of the opinion of the Advisory Committee and of the records of the hearings of the 14 witnesses, including the Head of the Audiovisual Unit, and of the applicant, they were notified to the applicant who, on 15 January 2018, submitted her observations in that regard and also on the Parliament’s written replies to the questions from the Court.
47The parties presented oral argument at the hearing on 23 February 2018. Due to the absence of a clear and unequivocal answer by the Parliament to one of the questions from the Court, the latter gave the Parliament the opportunity to reply in writing. Following the reply which the Parliament gave on 7 March 2018 and the applicant’s lodging of her observations on that reply on 26 March 2018, the Court closed the oral stage of the procedure.
48The applicant claims that the Court should:– annul the contested decision and, so far as necessary, the decision rejecting the complaint;– order the Parliament to pay damages, set ex aequo et bono at the amount of EUR 90000, in compensation for the non-material damage she considers she suffered due to the unlawful conduct of the AECE in its handling of the request for assistance;– order the Parliament to pay the costs.
49The Parliament contends that the Court should:– dismiss the action as unfounded;– order the applicant to pay the costs.
Law
Subject matter of the action
50According to settled case-law, claims for annulment formally directed against the decision rejecting a complaint have the effect of bringing before the Court the act against which the complaint was submitted where they lack, as such, any independent content (see, to that effect, judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 6 April 2006, Camós Grau v Commission, T‑309/03, EU:T:2006:110, paragraph 43).
51In the present case, since the decision rejecting the complaint merely confirms the contested decision, it must be held that the claim for annulment of the decision rejecting the complaint lacks any independent content and that there is therefore no need to rule specifically on it, even though, in the examination of the lawfulness of the contested decision it will be necessary to take into consideration, first, the reasoning contained in the decision rejecting the complaint, since that reasoning is deemed to coincide with that of the contested decision (see, to that effect, judgment of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraphs 58 and 59 and the case-law cited) and, secondly, the reasoning contained in the letter of 8 December 2015, by which the applicant was given a preliminary hearing by the AECE, since, in the contested decision, it is stated that that decision is supplemented by a reference to that letter so far as concerns the reasons why the AECE does not consider that the applicant was a victim of psychological harassment.
The claim for annulment
52In support of her claim for annulment, the applicant formally raises three pleas in law:– first, infringement of the rights of the defence, of Article 41 of the Charter of Fundamental Rights, of the right to be heard and of the audi alteram partem rule;– secondly, procedural errors, in that the procedure followed by the Advisory Committee was irregular and biased;– thirdly, manifest errors of assessment, infringement of the obligation to provide assistance and the duty of care, and infringement of Articles 12a and 24 of the Staff Regulations.
First plea: infringement of the rights of the defence, of Article 41 of the Charter of Fundamental Rights, of the right to be heard and of the audi alteram partem rule
53In support of her first plea, the applicant points out that, under Article 15 of the Internal Rules on Harassment, where the Advisory Committee is instructed to carry out an investigation, which was so in the present case, it must forward its findings to the AECE.
54The applicant states that, in his decision of 9 February 2016, the Director-General for Personnel gave as his reason for not sending her the report of the Advisory Committee which she had requested the fact that no report had been drawn up in the present case and that the Committee had only sent him an opinion. Before she received the Advisory Committee’s opinion in the context of the court procedure, the applicant challenged the fact that in the present case the Advisory Committee had not drawn up a report or prepared any substantive findings in accordance with the Internal Rules on Harassment. It was very unlikely that the letter of 8 December 2015, which was only two pages long, reflected in full the content of the Advisory Committee’s findings, when those findings were supposed to be the result of an inquiry lasting 15 months and of the hearings of the Head of the Audiovisual Unit and 13 other witnesses. The actual content of that letter, moreover, did not enable her to understand all the reasons taken into account by the AECE in the contested decision, or to challenge the statements that may have been made by some of the witnesses or their possible distortion by the AECE.
55In any event, the applicant challenges the Secretary-General’s position expressed in the decision rejecting the complaint that, being the complainant, her rights of defence were less significant. In that regard, she considers that in any event the audi alteram partem rule and the principle of the rights of the defence required the AECE to communicate to her not only the findings of the Advisory Committee but also the records of the witness hearings, documents which she eventually obtained in the course of the proceedings, inter alia because, both in the contested decision and in the decision rejecting the complaint, the AECE had not justified its refusal to communicate those documents by the need to keep confidential the identity of the persons against whom proceedings had been brought and of the persons who had been witnesses, within the meaning of the case-law arising from the judgment of 11 July 2013, Tzirani v Commission (F‑46/11, EU:F:2013:115).
56According to the applicant, the reference to the secret and confidential nature of the proceedings of the Advisory Committee, as provided for in the Internal Rules on Harassment, is ineffective. What is more, the AECE could have considered preparing a non-confidential version of the report or of the findings of the Advisory Committee and of the records of the witness hearings, which is what the Parliament eventually did do in response to a measure of inquiry from the Court.
57Since she did not have such documents available to her when drafting her observations on 1 April 2016, the applicant considers that she was not in possession of the reasons and all the considerations taken into account by the AECE when it adopted the contested decision. Accordingly, in the present case the AECE also infringed her right to be heard, as provided for in Article 41 of the Charter of Fundamental Rights.
58The applicant further states that at the pre-litigation stage the AECE did not rely on the protection of witness confidentiality, provided for in Article 41(2)(a) of the Charter of Fundamental Rights, in order to justify refusing access to the findings of the Advisory Committee and the records of the witness hearings. Consequently, in the light of the case-law arising from the judgment of 12 December 2013, Simpson v Council (F‑142/11, EU:F:2013:201, paragraph 28), the Parliament cannot rely on that aspect at the litigation stage to argue that the AECE’s decision refusing access to those documents was well-founded, since such an argument is out of time and, hence, inadmissible.
59The Parliament contends that the first plea should be rejected as unfounded, pointing out that in any event the case-law relied on by the applicant did not require the AECE to give her access to the proceedings of the Advisory Committee. It states further that, in the present case the AECE chose to guarantee the confidentiality of the testimonies, not only vis-à-vis the alleged harasser, but also vis-à-vis the complainant, in order to guarantee freedom of speech for the witnesses. In that regard, it refers to paragraph 41 of the judgment of 11 July 2013 Tzirani v Commission (F‑46/11, EU:F:2013:115), in which the Civil Service Tribunal held that ‘in the context of a complaint of psychological harassment it [was] appropriate, except in special circumstances, to guarantee the confidentiality of witness statements collected, including during the contentious proceedings, since the prospect of a possible removal of that confidentiality at the stage of contentious proceedings [might] impede the holding of neutral and objective inquiries with the unreserved cooperation of the members of staff called as witnesses’.
–Preliminary considerations regarding the handling of a request for assistance provided for in the Staff Regulations
60As a preliminary point, where a request for assistance within the meaning of Article 24 of the Staff Regulations is made to the AECE or, as the case may be, the authority vested with the appointing powers of an institution (‘the appointing authority’) pursuant to Article 90(1) of the Staff Regulations, that authority must, by virtue of the duty to provide assistance and when it is 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 so as to ascertain the facts and, having done so, to take the appropriate action in full knowledge of the matter. To that end, it is sufficient that the official or other staff member who is seeking the protection of his institution provide prima facie evidence that the attacks of which he claims to have been the victim actually took place. When such evidence is provided, the institution concerned is then under an obligation to take the necessary measures, in particular to conduct an administrative inquiry, with the cooperation of the party who made the request for assistance, to determine the facts which gave rise to that request (judgments of 26 January 1989, Koutchoumoff v Commission, 224/87, EU:C:1989:38, paragraphs 15 and 16; of 12 July 2011, Commission v Q, T‑80/09 P, EU:T:2011:347, paragraph 84; and of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraph 46).
61In cases of allegations of harassment, the duty to provide assistance includes, in particular, the duty of the administration to examine seriously, expeditiously and in total confidentiality, the request for assistance in which the harassment is alleged and to inform the complainant of the action to be taken in respect of that complaint (judgments of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraph 47; of 27 November 2008, Klug v EMEA, F‑35/07, EU:F:2008:150, paragraph 74; and of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 88).
62With regard to the measures to be taken in a situation which, as in the present case, is covered by Article 24 of the Staff Regulations, the administration enjoys a broad discretion — subject to review by the EU judicature — regarding the choice of measures and methods for implementing Article 24 of the Staff Regulations (judgments of 15 September 1998, Haas and Others v Commission, T‑3/96, EU:T:1998:202, paragraph 54; of 25 October 2007, Lo Giudice v Commission, T‑154/05, EU:T:2007:322, paragraph 137; and of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraph 48).
63Where, after a request for assistance has been made, of the type at issue in the present case, the administration may decide to conduct an administrative inquiry, entrusting it, as in the present case, to an advisory committee (see, to that effect, judgment of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 99), the very point of that administrative inquiry is to confirm or negate the existence of psychological harassment within the meaning of Article 12a of the Staff Regulations. Accordingly, the AECE must not prejudge the outcome of the inquiry and must not adopt a position — not even impliedly — on the reality of the alleged harassment before having received the results of the administrative inquiry. In other words, it is inherent in the fact that an administrative inquiry has been opened that the administration must not adopt a position prematurely, essentially on the basis of the unilateral description of the facts provided in the request for assistance, as it must, on the contrary, reserve its position until that inquiry has been completed, which must be conducted by weighing up the assertions of the official or other staff member making the request for assistance against the version of the facts provided by the alleged harasser, and also against that provided by any persons who may have been witnesses to acts purported to constitute infringement by the alleged harasser of Article 12a of the Staff Regulations (see, to that effect, judgment of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraph 59 and the case-law cited).
64In that regard, first, the finding by the administration that there has been psychological harassment upon completion of an administrative inquiry, which may have been conducted with the assistance of a separate department of the AECE such as the Advisory Committee, is in itself likely to have a beneficial effect in the therapeutic process of recovery of an official or other member of staff who has been harassed and may, in addition, not only justify disciplinary action against the harasser but may also be used by the victim for the purposes of a national court action, in respect of which the AECE’s duty to provide assistance under Article 24 of the Staff Regulations will apply and will not expire at the end of the period of employment of the staff member concerned. On the other side of the equation, the conduct of an administrative inquiry through to completion may make it possible to disprove the allegations made by the purported victim, thereby making it possible to repair the damage which such an accusation, should it prove to be unfounded, may have caused to the person named as the alleged harasser by an inquiry procedure (see, to that effect, judgment of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraph 61 and the case-law cited).
65As regards that aspect, it should be noted first of all that the Staff Regulations do not lay down a special procedure which the administration is required to follow when handling a request for assistance within the meaning of Article 24 of the Staff Regulations, submitted under Article 90(1) of the Staff Regulations, concerning an allegation by an official or other staff member that another official or staff member has behaved towards the former in a way that infringed Article 12a of the Staff Regulations.
66Next, it should be noted that an administrative inquiry procedure initiated following the submission, by an official or other staff member, of a request for assistance within the meaning of Article 24 of the Staff Regulations in respect of conduct by a third party, an official or other staff member, allegedly constituting psychological harassment within the meaning of Article 12a of the Staff Regulations, although initiated at the former’s request, cannot be regarded as being an inquiry procedure opened against the latter official or other staff member (see, to that effect, judgment of 16 May 2012, Skareby v Commission, F‑42/10, EU:F:2012:64, paragraph 46). According to settled case-law, the role of the party who made the request for assistance alleging harassment consists essentially in cooperating in the proper conduct of the administrative inquiry in order to establish the facts (judgments of 26 January 1989, Koutchoumoff v Commission, 224/87, EU:C:1989:38, paragraphs 15 and 16; of 25 October 2007, Lo Giudice v Commission, T‑154/05, EU:T:2007:322, paragraph 136; and of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 87).
67Although respect for the rights of the defence, as referred to in Article 48 of the Charter of Fundamental Rights, entitled ‘Presumption of innocence and right of defence’, requires that the addressees of decisions which significantly affect their interests should be placed in a position in which they may effectively make known their views with regard to the evidence on which those decisions may be based (judgment of 14 June 2016, Marchiani v Parliament, C‑566/14 P, EU:C:2016:437, paragraph 51) and includes observance of the audi alteram partem rule, which goes further than observance of the right to be heard and which is also moreover guaranteed as a component of Article 41 of that Charter, entitled ‘Right to good administration’. However, observance of the rights of the defence, within the meaning of Article 48 of the Charter of Fundamental Rights, may only be relied upon in a procedure initiated ‘against’ a person which is liable to culminate in a measure adversely affecting that person in which the administration holds evidence against that person (see, to that effect, judgment of 16 May 2012, Skareby v Commission, F‑42/10, EU:F:2012:64, paragraph 46).
68It follows that, in the context of the procedure followed by the appointing authority or the AECE to give a ruling on a request for assistance based on infringement of Article 12a of the Staff Regulations, the party who made that request cannot call for observance of the rights of the defence referred to in Article 48 of the Charter of Fundamental Rights as such nor, in that context, in the form of an infringement of the audi alteram partem rule.
69The same holds true for the alleged harasser. The latter may be personally implicated in the request for assistance that has led to the opening of the administrative inquiry and may, at that stage already, need to defend himself against accusations made against him, justifying him being heard, possibly on several occasions, in the context of the inquiry (see, to that effect, judgment of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 147). However, it would be only at a later stage in the procedure, if disciplinary proceedings were to be brought against him — in this instance by referring the matter to the Disciplinary Board — that he would enjoy the rights of the defence within the meaning of Article 48 of the Charter of Fundamental Rights and, in particular, the audi alteram partem rule, bearing in mind the fact that the Staff Regulations provide only for a right to be heard with regard to the principle of the opening of disciplinary proceedings and that the proceedings do not become inter partes proceedings until after the matter has been referred to the Disciplinary Board (see, to that effect, judgment of 19 March 1998, Tzoanos v Commission, T‑74/96, EU:T:1998:58, paragraph 340).
70That being said, the party who made a request for assistance, as the presumed victim, must be granted procedural rights separate from the rights of defence referred to in Article 48 of the Charter of Fundamental Rights, which are not as extensive as those rights (judgments of 16 May 2012, Skareby v Commission, F‑42/10, EU:F:2012:64, paragraph 48, and of 16 December 2015, De Loecker v EEAS, F‑34/15, EU:F:2015:153, paragraph 43) and which are, ultimately, covered by the right to good administration, as now provided for by Article 41 of the Charter of Fundamental Rights.
71It should be noted that the aim of an administrative inquiry opened by the administration, in response to a request for assistance within the meaning of Article 24 of the Staff Regulations, is to provide clarification of the facts at issue, through the inquiry’s findings, so that the administration may adopt a definitive position in that regard, so that it may either decide that no action is to be taken on the request for assistance or, where the facts alleged are proven and come within Article 12a of the Staff Regulations, initiate disciplinary proceedings so that, if appropriate, disciplinary sanctions may be imposed on the alleged harasser (see judgment of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraph 57 and the case-law cited).
72Thus, first, where, in the context of the measures it decides to adopt in response to the request for assistance, the administration decides to initiate disciplinary proceedings under Article 86 of the Staff Regulations, on grounds of infringement by the person implicated in that request, of the prohibition contained in Article 12a of the Staff Regulations, the proceedings thus brought are brought against that official or other staff member, the alleged harasser, so the latter therefore has all the procedural safeguards enforcing the rights of the defence within the meaning of Article 48 of the Charter of Fundamental Rights and, in particular, the audi alteram partem rule. Those safeguards are the ones provided for in Annex IX to the Staff Regulations.
73Secondly, where, in response to the request for assistance, the administration decides that the evidence relied on in support of the request for assistance is unfounded and that therefore the conduct alleged does not constitute psychological harassment within the meaning of Article 12a of the Staff Regulations, such a decision adversely affects the party who made the request for assistance (see, to that effect, judgments of 12 September 2007, Combescot v Commission, T‑249/04, EU:T:2007:261, paragraph 32, and of 11 May 2010, Nanopoulos v Commission, F‑30/08, EU:F:2010:43, paragraph 93), and affects him or her adversely within the meaning of Article 41(2)(a) of the Charter of Fundamental Rights.
74Thus, in order for the right to good administration to be observed, the party who made the request for assistance must necessarily, in accordance with Article 41(2)(a) of the Charter of Fundamental Rights, be properly heard before the decision rejecting the request for assistance is adopted by the appointing authority or the AECE. This means that the person concerned should be given the opportunity to express his views in advance with regard to the grounds which the appointing authority or the AECE intends to rely on in support of rejection of the request.
75In the present case, it is not disputed that the applicant was heard by the AECE, in this instance on the basis of the letter of 8 December 2015 from the Director‑General for Personnel, in which he set out in detail the reasons why, in his capacity as AECE, he did not propose to acknowledge the facts relied on by the applicant as constituting psychological harassment within the meaning of Article 12a of the Staff Regulations. However, the applicant considers that in the context of the written observations she submitted on 1 April 2016 she was not given a proper hearing because, when she submitted those observations she was not in possession of the opinion of the Advisory Committee or the records of the witness hearings.
76It is therefore necessary to determine whether, in the present case, the applicant’s right to be heard required that she should also have had in her possession the opinion of the Advisory Committee and the records of the witness hearings conducted by that committee in order to make her observations on the grounds relied on by the AECE, in the letter of 8 December 2015, when rejecting the request for assistance.
–The obligation on the AECE to send the Advisory Committee’s opinion to the applicant before adopting the contested decision
77In a case involving the staff rules applicable at the European Central Bank (ECB), and not the Staff Regulations, the Court held that, where the administration decided to open an administrative inquiry and the latter resulted in the drafting of a report, a member of staff of that institution who had made — within the wording of the staff rules of that institution — a ‘complaint’ in order to report conduct allegedly falling within the concept of psychological harassment, as that term was defined in the rules applicable to the staff of the ECB, should, like the person against whom the allegations were made, be given an opportunity to make his or her views known on the draft inquiry report, as provided for in those rules, before the ECB administration gave a ruling on the complaint or at least on the evidence that was taken into account by that administration when adopting its decision (see, to that effect, judgment of 23 September 2015, Cerafogli v ECB, T‑114/13 P, EU:T:2015:678, paragraph 41).
78Within the ambit of the Staff Regulations, the appointing authority or, as the case may be, the AECE is required to handle not a complaint but a request for assistance made under Article 24 and Article 90(1) of the Staff Regulations. In that regard, contrary to what is the case under the system applying at the ECB, the Staff Regulations do not provide a specific procedure governing the way in which the appointing authority or the AECE should handle a request for assistance within the meaning of Article 24 of the Staff Regulations, involving an infringement of Article 12a of the Staff Regulations, nor any requirement, as such, to send the opinion of an advisory committee, or the records of statements by witnesses heard by that committee, to the party who made the request for assistance or the person implicated in that request as being the alleged harasser.
79That being so, the Court has held that, provided the interests of persons against whom proceedings have been brought and of persons who have been witnesses in the investigation are protected, no provision of the Staff Regulations prevents a final investigation report being sent to a third party who has a legitimate interest in knowing details of it, as is the case of a person who submits a request for assistance under Article 24 of the Staff Regulations, alleging infringement of Article 12a of the Staff Regulations. It has therefore been stated in that context that, as part of their autonomy in implementing those provisions of the Staff Regulations, some institutions have sometimes adopted that solution, by sending the person making the request for assistance the final investigation report, either before the action is brought, by annexing it to the final decision taken on the request for assistance or, as in the present case, pursuant to a measure of organisation of procedure decided on by the EU Court called upon to rule at first instance (see, to that effect, judgment of 11 July 2013, Tzirani v Commission, F‑46/11, EU:F:2013:115, paragraph 133).
80The Court considers however that, where the AECE decides, as in the present case, to call for the opinion of an advisory committee, to which it entrusts the conduct of an administrative inquiry and, in the decision on the request for assistance, it takes into account the opinion thus issued by that advisory committee, that opinion, which is advisory and can be drafted in a non‑confidential form respecting the anonymity granted to witnesses, must, in accordance with the right to be heard of the party who made the request for assistance, in principle be brought to the latter’s attention, even if the Internal Rules on Harassment do not provide for such transmission.
81It was therefore in breach of the right to be heard, as referred to in Article 41 of the Charter of Fundamental Rights, that, in the decision of 9 February 2016, in the contested decision and in the decision rejecting the complaint, the AECE refused to send to the applicant the opinion of the Advisory Committee and therefore heard her in the present case only on the basis of the letter of 8 December 2015 setting out the grounds on which the Director-General for Personnel proposed to refuse the request for assistance.
–The obligation on the AECE to send the records of the witness hearings to the applicant before adopting the contested decision
82As regards the records of the witness hearings conducted by the Advisory Committee, the AECE refused to send them to the applicant in order to ensure the confidentiality of the proceedings of the Advisory Committee needed in order to ensure the freedom of expression of the witnesses; the latter had each been reminded of that freedom before their interviews with the Advisory Committee. Contrary to what the applicant contends, that ground concerning protection of the confidentiality of witnesses was contained in the decision rejecting the complaint and may therefore, in view of the changing nature of the pre-litigation stage, be reiterated and clarified by the Parliament at the litigation stage.
83In that regard, the Court considers that, in principle, in order to ensure effective application of the prohibition on any form of psychological or sexual harassment at the workplace, it is permissible for the administration to provide for the possibility of assuring witnesses who agree to provide their accounts of the facts at issue in an alleged case of harassment that their testimony will remain confidential vis-à-vis both the alleged harasser and the alleged victim, at least in the context of the procedure followed for handling a request for assistance within the meaning of Article 24 of the Staff Regulations.
84First, given that, in the context of handling a request for assistance, one of the objectives assigned to the administration is to restore tranquillity to the service, awareness of the content of the testimonies, on the part of both the alleged harasser and the alleged victim, might jeopardise that objective by reviving any interpersonal animosity within the service and deterring any persons who might provide relevant testimony in the future from doing so.
85Secondly, where an institution receives information provided on a voluntary basis, but accompanied by a request for confidentiality in order to protect the informant’s anonymity, an institution which accepts such information is bound to comply with such a condition (see, to that effect and by analogy, judgment of 7 November 1985, Adams v Commission, 145/83, EU:C:1985:448, paragraph 34). The same may apply where officials or other staff members agree to provide their testimonies in order to enable the administration to shed light on facts covered in a request for assistance, but demand in return that their anonymity should be ensured vis-à-vis the alleged harasser and/or the alleged victim, bearing in mind that, although their participation is desirable, under the Staff Regulations they are not necessarily required to collaborate in the inquiry by providing their testimonies.
86That being so, where the administration decides to initiate disciplinary proceedings against the alleged harasser, the latter’s rights of defence are expressly governed by Annex IX to the Staff Regulations and it is for the appointing authority or the AECE to send to the person concerned any document it wishes to submit for assessment by the Disciplinary Board, and whether or not witnesses of the alleged facts are to be heard again is a matter for the board to decide.
87In the light of the above considerations, it must be held that the AECE did not infringe the right to be heard, as referred to in Article 41 of the Charter of Fundamental Rights, when, in the present case, it refused to send the records of the witness hearings to the applicant at the pre-litigation stage.
–The consequences of infringement of the right to be heard as a result of failure to send the opinion of the Advisory Committee at the pre-litigation stage
88As regards the consequences of the failure to make the opinion of the Advisory Committee available to the applicant at the pre-litigation stage, it should be noted that, according to case-law, even where there has been infringement of the right to be heard, it is also necessary, for the plea to be successful, that had it not been for that irregularity, the outcome would have been different (see, to that effect, order of 14 April 2016, Dalli v Commission, C‑394/15 P, not published, EU:C:2016:262, paragraph 41; judgments of 6 February 2007, Wunenburger v Commission, T‑246/04 and T‑71/05, EU:T:2007:34, paragraph 149; and of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 157).
89In the present case, the applicant maintained, in her observations of 15 January 2018, that the Advisory Committee’s opinion was brief and that, although it was intended to reflect properly the work of the committee, it had to be agreed that it was inadequate as regards the complaint she had lodged. In view, however, of the Advisory Committee’s broad discretion in the organisation of its proceedings, the Court does not consider that the brief nature of that committee’s opinion precluded it from fulfilling it advisory objective. Furthermore, for the purposes of ruling on the request for assistance, which set out the alleged facts in detail, the AECE had available to it not only that, albeit brief, advisory opinion but also the records of the witness hearings, which provided it with an overall, detailed view of the reality of those facts and of their perception by the various members of staff of the unit concerned.
90When questioned again on that aspect at the hearing, the applicant was not in a position to explain what other argument, in addition to those she had already put forward at the pre-litigation stage, she would actually have been able to put forward, had she been in possession of the Advisory Committee’s opinion, that would have had an impact on the contested decision, the grounds of which had been expressly set out for her in the letter of 8 December 2015. The arguments she put forward, including at the hearing, seek to demonstrate the structure — which she describes as clannish — of the Audiovisual Unit and the lack of foundation for the head of unit’s criticisms of the quality of her work, inter alia her alleged withholding of information and her lack of team spirit. Thus, those arguments concern the content of the testimonies contained in the records of the witness hearings, and not the opinion of the Advisory Committee, of which she became aware moreover during the litigation stage. It is only this last document which the AECE should have given to the applicant in order for her to be given a proper hearing prior to rejection of the request for assistance.
91In those circumstances, the first plea must be dismissed.
Second plea: procedural errors, in that the procedure followed by the Advisory Committee was irregular and biased
92In support of her second plea, the applicant maintains in essence that, since 13 out of the 14 witnesses heard by the Advisory Committee were officials or other staff members subordinate to the alleged harasser, they could not provide objective testimonies. That was exacerbated by the fact that the Chairman of the Advisory Committee was none other than the Head of the Human Resources Unit, so his presence on the Advisory Committee was not likely to reassure the witnesses heard that the content of their testimonies would not have any consequences for their careers.
93The applicant also criticises the AECE for the fact that, although she had asked for them to be heard, the Advisory Committee did not hear one of the institution’s medical advisers or the Parliament’s psychologist. In her view, those persons might have provided a ‘more unbiased testimony’ since there was no subordinate relationship between them and the alleged harasser. In particular, they could have confirmed, first, that the applicant had already complained, within the institution, that she was a victim of psychological harassment before ever consulting her own doctor and, secondly, that she had symptoms characteristic of experiencing psychological harassment. She concludes from this that in the present case the Advisory Committee conducted its inquiry in a biased manner.
94Lastly, the applicant considers that the AECE did not provide evidence that the Advisory Committee had actually contacted the two witnesses she had called and who, according to the AECE, allegedly refused to testify to the committee. In any event, she challenges the comment attributed to one of the two witnesses, Z, who allegedly said that she had not been in day-to-day contact with the applicant. In fact, Z had an office next to her and was in contact with her on numerous occasions, as is shown by the email exchanges which the applicant attached to the reply.
95The Parliament contends that the second plea should be rejected as unfounded.
96In that regard, it states that members of the Advisory Committee do not sit on it in their capacity as an official or other member of staff of the Parliament, but in their personal capacity. Contrary moreover to what the applicant suggests, the Chairman of the Advisory Committee is by no means in charge of all his staff covered by the Staff Regulations and has no hierarchical relationship with the persons who testified in the present case. The Parliament also challenges the applicant’s statement that the fact that 13 out of the 14 witnesses were hierarchically subordinate to the alleged harasser meant that they could not testify freely. According to the Parliament, first, those persons were naturally best placed to provide proper testimony in respect of the facts at issue. Secondly, it is precisely in order to ensure that witnesses could speak freely that provision was made that neither the alleged harasser nor the alleged victim would have access to the content of their testimonies. Lastly, as regards the two witnesses called by the applicant, the Parliament provides an email, sent on 4 September 2015 by one of its officials, a member of the Advisory Committee’s secretariat, to the Chairman of the Advisory Committee, in which that official reports on the contacts he made with the two persons called as witnesses by the applicant and the reasons those two persons put forward for refusing to testify.
97As regards the fact that the Advisory Committee did not hear all the persons whom the applicant wished to see testify, the Court notes that the entity responsible for an administrative investigation, which is required to investigate the files that are submitted to it in a proportionate manner, has broad discretion with regard to the conduct of the investigation and in particular with regard to assessing the quality and usefulness of the cooperation provided by the witnesses (judgment of 11 July 2013, Tzirani v Commission, F‑46/11, EU:F:2013:115, paragraph 124 and the case-law cited).
98In the present case, first, contrary to what the applicant maintains, it is clear from the email supplied by the Parliament that one of the two members of the Advisory Committee secretariat contacted those two persons whom she wanted to testify to the committee, but both those persons refused, for various reasons, to provide their testimonies.
99In that regard, it should be noted that, even though it is desirable for them to assist in an inquiry, officials and other staff of an institution, whether active or retired, are not necessarily required under the Staff Regulations to testify before a body such as the Advisory Committee.
100Accordingly, since the persons approached, including Z, were able to refuse to testify without having to provide a valid reason for so doing, it is pointless for the applicant to try to contradict the statement, reported by one of the two members of the Advisory Committee secretariat, that Z, by that time retired, said that she had not been directly involved in the facts to which the inquiry related, that she had little contact with the applicant, that she had not attended the meetings of the Audiovisual Unit at issue in the present case and that she had learnt only indirectly, through one of her colleagues, of the existence of a conflict between the applicant and the Head of the Audiovisual Unit.
101Secondly and in any event, the Advisory Committee was not required to call all the witnesses proposed by the applicant in the context of the inquiry (see, to that effect, judgment of 13 December 2012, Donati v ECB, F‑63/09, EU:F:2012:193, paragraph 187).
102As regards the Advisory Committee’s alleged lack of impartiality, it should be noted that, under the Secretary-General’s decision D(2014) 3983 of 4 February 2014, the Advisory Committee is chaired by Mr R.N. and is made up of two members from the administration, together with one alternate member, two members from the Parliament’s Staff Committee, together with one alternate member, and a medical adviser from the institution, together with one alternate medical adviser.
103Even if complete parity is not provided for between the members appointed by the administration and those appointed by the staff representatives, since Mr R.N., who is moreover also the Head of the Human Resources Unit of the Directorate for Resources of DG Personnel, belongs to the administration, the Court is of the opinion, first, that the presence of a medical adviser from the institution on the Advisory Committee, secondly, the fact that Article 7 of the Internal Rules on Harassment provides that the Advisory Committee ‘shall work with complete autonomy, independence and confidentiality’, and, thirdly, the collegial nature of the deliberations constitute sufficient guarantees as to the impartiality and objectivity of the opinion which the Advisory Committee compiles and adopts for the benefit of the AECE (see, to that effect and by analogy, judgments of 30 May 2002, Onidi v Commission, T‑197/00, EU:T:2002:135, paragraph 132, and of 17 March 2015, AX v ECB, F‑73/13, EU:F:2015:9, paragraph 150).
104In that regard, the fact that the Chairman of the Advisory Committee is moreover the Head of the Human Resources Unit of the Directorate for Resources of DG Personnel, does not, contrary to what the applicant conjectures, mean that he exercises, or is able to exercise, power over members of the staff and, therefore, over the deliberations of the Advisory Committee (see, to that effect, judgment of 17 March 2015, AX v ECB, F‑73/13, EU:F:2015:9, paragraph 151), and over the content of the testimonies given by 13 of the 14 witnesses. In any event, it has not been proved that the Chairman of the Advisory Committee, even though he is the Head of the Human Resources Unit of the Directorate for Resources of DG Personnel, would necessarily act against the applicant (see, by analogy, judgment of 17 March 2015, AX v ECB, F‑73/13, EU:F:2015:9, paragraph 152). Furthermore, it should be added that, contrary to what the applicant appears to suggest, the Internal Rules on Harassment do not provide that he must necessarily be present in order to conduct all the witness hearings in a given case.
105With regard moreover to the applicant’s argument challenging the veracity of the testimonies provided by the witnesses who were interviewed, on the grounds that they were all under the hierarchical authority of the Head of the Audiovisual Unit, first, the Court notes that the applicant fails to prove that those witnesses could reasonably have feared that they would be subject to retribution or that they came under pressure (see, to that effect, judgment of 13 December 2012, Donati v ECB, F‑63/09, EU:F:2012:193, paragraph 183). Secondly, if that line of argument were to be followed it would mean that every time a member of management staff of an institution was implicated in a request for assistance, the administration would be precluded from relying on the testimonies of members of the administrative unit who worked under the responsibility of that member of management staff. That would prevent the administration from establishing the facts behind the request for assistance, since often it is precisely those members of the administrative unit in question who are witnesses at first hand of the events alleged in a request for assistance.
106As for the hearing of the two medical advisers, which was requested by the applicant, although they saw her when she consulted them at the offices of the Parliament’s medical service, it should be borne in mind that the opinions of medical experts are not 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 (judgments of 6 February 2015, BQ v Court of Auditors, T‑7/14 P, EU:T:2015:79, paragraph 49; of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 127; and of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 92). In particular, the medical certificates submitted by the applicant, and any testimony given by the two medical advisers concerned, although they could have revealed that the applicant had psychological problems, could not have established that those problems resulted from psychological harassment, since, to make such a finding of harassment, the authors of the certificates would necessarily have had to rely exclusively on the description that the applicant made of her working conditions in the Parliament (see, to that effect, judgments of 2 December 2008, K v Parliament, F‑15/07, EU:F:2008:158, paragraph 41, and of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 127).
107Lastly, as regards the applicant’s criticism of the brief, or in any event non‑exhaustive, nature of the summary of the hearings as it appears in the records of the hearings, the Court considers that, as regards her own testimony, the applicant has failed to show which of her answers to the questions put to her by the Advisory Committee were not set out or were not adequately set out in the record of her own testimony. The same applies with regard to the hearings of the other witnesses, in respect of which the Court considers that the records provided by the Parliament were sufficient as regards their purpose of providing information, in this instance for the Advisory Committee to draft its opinion.
108It is clear from all the above considerations that the second plea must be rejected as unfounded.
Third plea: manifest errors of assessment, infringement of the obligation to provide assistance and the duty of care, and infringement of Articles 12a and 24 of the Staff Regulations
109In support of her third plea, the applicant claims that, in the contested decision as upheld by the decision rejecting the complaint, the AECE committed a ‘manifest error of assessment’ by refusing to classify the events which she described in the request for assistance as constituting psychological harassment. That constitutes an infringement of Article 12a of the Staff Regulations, and thus was in breach of Article 24 of the Staff Regulations, which imposes a duty on the AECE to provide assistance, that that request was rejected. In doing so, the AECE also failed in its duty of care.
110Referring to the list, drawn up by the AECE in an internal communication dated 11 May 2016, of types of conduct that might be classified as psychological harassment, the applicant considers that, contrary to what the AECE stated in the contested decision, citing the context of the unit’s organisational difficulties, she was subjected by her head of unit to constant criticism, lack of consideration, failure to take into account opinions she expressed, excessive supervision of her work, insults or hurtful comments, an attitude of ignoring her, permanent hostility and behaviour designed to humiliate or ridicule her because of her work. In that regard, she considers that, contrary to what the Parliament implies in its defence, the classification of acts as psychological harassment, within the meaning of Article 12a of the Staff Regulations, does not require them to have been deliberately intended to impair the victim’s working conditions.
111The conduct which the applicant complains about is apparent from the description of the facts at issue which she gave in the request for assistance. In that regard, she considers that, contrary to what the AECE and subsequently the Parliament contend, the aggressive, mocking and sarcastic behaviour of the Head of the Audiovisual Unit towards her could not possibly be justified by the unit’s operating difficulties which the head of unit was supposed to deal with, and in any event the latter could not be allowed, in his capacity as head of unit, to behave in such a manner, in breach of Article 12a of the Staff Regulations, in order to deal with them.
112The Parliament contends that the third plea should be rejected as unfounded. It states that the criticisms addressed to the applicant by the Head of the Audiovisual Unit were directly linked to the need to improve the operation of the unit and that the applicant herself acknowledged that those criticisms had been made at meetings about problems within the service, following the increase in the burden of work and the restructuring of the operational services. Although it recognises that some of the head of unit’s comments were on occasions exaggerated or regrettable, such as those quoted by the applicant in her application, the Parliament maintains that they were not based on unfair accusations with no bearing on objective facts attributable to the applicant and that they must be seen in the context of the tension, existing at that time, due to the problems within the unit and the increase in the burden of work.
113The Parliament considers, with regard to the Head of the Audiovisual Unit’s mentioning of the end of the applicant’s contract, that the applicant did not provide any evidence to prove that such comments had been made from any other perspective than one connected with assessment of the interests of the service, bearing in mind the fact that it was part of the applicant’s head of unit’s job to assess her performance.
114According to the Parliament, although it was regrettable that the Head of the Audiovisual Unit disclosed the fact that the applicant had made the request for assistance, that did not in itself constitute psychological harassment.
115Lastly, the Parliament states, with regard to its duty of care, that it took the state of the applicant’s health into account by reassigning her to another service.
–The concept of psychological harassment as used in the Staff Regulations
116As a preliminary point, it should be noted that, before the entry into force of the Staff Regulations resulting from Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (OJ 2004 L 124, p. 1), the General Court, ex proprio motu, defined the concept of ‘psychological harassment’ as corresponding, regardless of the subjective perception which the alleged victim may have had of it, to a body of evidence proving that that person was subjected to conduct aimed, objectively, at discrediting him or at deliberately impairing his working conditions (see, to that effect, judgments of 23 February 2001, De Nicola v EIB, T‑7/98, T‑208/98 and T‑109/99, EU:T:2001:69, paragraph 286, and of 8 July 2004, Schochaert v Council, T‑136/03, EU:T:2004:229, paragraph 41). Thus, in order to establish the existence of psychological harassment, the conduct at issue should be objectively intentional in character (judgments of 4 May 2005, Schmit v Commission, T‑144/03, EU:T:2005:158, paragraph 65, and of 25 October 2007, Lo Giudice v Commission, T‑154/05, EU:T:2007:322, paragraph 83).
117Since the entry into force on 1 May 2004 of Article 12a(1) and (3) of the Staff Regulations, according to which ‘officials shall refrain from any form of psychological or sexual harassment’, psychological harassment is now interpreted to mean ‘any improper conduct that takes place over a period, is repetitive or systematic and involves physical behaviour, spoken or written language, gestures or other acts that are intentional and that may undermine the personality, dignity or physical or psychological integrity of any person’.
118In that regard, it should be noted that, in the wording of Article 12a(3) of the Staff Regulations the Union legislature did not reiterate the earlier case-law requirement, recalled in paragraph 116 above, that, in order to fall within the concept of psychological harassment, conduct must have been aimed, objectively, ‘at discrediting or at deliberately impairing [the] working conditions’ of the person towards whom such conduct had been shown.
119In those circumstances, it must be acknowledged that the concept of ‘psychological harassment’ is defined, in Article 12a(3) of the Staff Regulations, as ‘improper conduct’, first, in the form of physical behaviour, spoken or written language, gestures or other acts, which takes place ‘over a period’ and is ‘repetitive or systematic’, suggesting that psychological harassment must be understood as a process that occurs over time and presupposes the existence of repetitive or continual behaviour which is ‘intentional’, as opposed to ‘accidental’. Secondly, in order to fall under that definition, such physical behaviour, spoken or written language, gestures or other acts must have the effect of undermining the personality, dignity or physical or psychological integrity of a person (judgment of 13 December 2017, HQ v CPVO, T‑592/16, not published, EU:T:2017:897, paragraph 101; see, also, judgment of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 76 and the case-law cited).
120Accordingly, it is not necessary to establish that the physical behaviour, spoken or written language, gestures or other acts in question 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 without it being established that there has been any intention on the part of the harasser, by his conduct, to discredit the victim or deliberately impair the latter’s working conditions. It is sufficient that such conduct, provided that it was intentional, led objectively to such consequences (see judgments of 5 June 2012, Cantisani v Commission, F‑71/10, EU:F:2012:71, paragraph 89, and of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 77 and the case-law cited).
121Finally, as the conduct in question must, under Article 12a(3) of the Staff Regulations, be improper, it follows that the classification of such conduct as ‘harassment’ is subject to the condition of its being sufficient, when viewed objectively, to be considered real, in the sense that an impartial and reasonable observer, of normal sensitivity and in the same situation, would consider the behaviour or act in question to be excessive and open to criticism (judgments of 16 May 2012, Skareby v Commission, F‑42/10, EU:F:2012:64, paragraph 65, and of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 78).
122It is in the light of those considerations from case-law that the third plea must be examined, and in order to do so it is necessary to address in chronological order each of the events mentioned by the applicant in the light of Article 12a of the Staff Regulations before assessing them overall in order to determine whether, as the applicant contends, the AECE erred in its assessment of the facts and, hence, infringed both Article 12a and Article 24 of the Staff Regulations.
123In that regard, it should further be pointed out that the definition laid down in Article 12a of the Staff Regulations is an objective concept which, although based on a contextual classification of the actions and behaviour of third parties — in the present case officials and other members of staff — which is not always straightforward, does not, in any event, call for complex assessments to be carried out, such as those that may have to be conducted in respect of economic concepts (see, concerning trade protection measures, judgments of 7 May 1991, Nakajima v Council, C‑69/89, EU:C:1991:186, paragraph 86, and of 27 September 2007, Ikea Wholesale, C‑351/04, EU:C:2007:547, paragraph 40), scientific concepts (see, in respect of decisions of the European Chemicals Agency (ECHA), judgment of 7 March 2013, Rütgers Germany and Others v ECHA, T‑94/10, EU:T:2013:107, paragraphs 98 and 99), or technical concepts (see, in respect of decisions of the Community Plant Variety Office (CPVO), judgment of 15 April 2010, Schräder v CPVO, C‑38/09 P, EU:C:2010:196, paragraph 77), which warrant a margin of discretion being afforded to the administrative body in applying the concept in question. Therefore, where it is alleged that Article 12a of the Staff Regulations was misapplied, it is necessary to examine whether the AECE erred in its assessment of the facts in the light of the definition of psychological harassment laid down in that provision and not whether that error is manifest.
–The alleged conduct at issue
124The applicant explains that, although her service records had always been good and had satisfied three successive heads of unit, the last being the Head of the Audiovisual Unit, the latter’s conduct towards her had changed from the end of 2011 and, even more, during 2012. The conduct also extended beyond that period, in this instance, from December 2012 to September 2014. In fact, that head of unit engaged in improper conduct intended to belittle her systematically and consisting in criticism of her mainly in front of third parties, whether she was present or not, but also sometimes in writing. The main criticisms thus made of her directly related to her as a person, inter alia, her alleged personality problems and alleged arrogance. Her head of unit thus regularly reminded her that he was her hierarchical superior and that she should obey him, and he also repeatedly asked her to justify her actions, without drawing any conclusions from the justifications she provided in response. He also put her under pressure by threatening to end her employment relationship or, at least, by warning her not to ask for the renewal of her contract as a member of the contract staff for auxiliary tasks. In addressing her he used such terms as ‘Who do you think you are, Your Ladyship?’ and criticised her ‘personality problems’. In return, the applicant criticises her head of unit for his unjustified reactions.
125For example, as regards the Head of the Audiovisual Unit’s lack of coordination in implementing a specific procedure for handling requests from the media, which had first to pass through the Audiovisual Section coordinated by the applicant, the latter considers that it was legitimate that she should complain about it in an email of 25 October 2011.
126Similarly, as regards the email that the Head of the Audiovisual Unit sent her on 26 September 2011, putting two other staff members in the Newsdesk Hotline sector in copy, an email in which he stated that he had requested in vain on several occasions that that unit should assist a person in another sector with regard to a visit by a delegation from the Tunisian Republic, in her view her email of 26 September 2011 in reply constituted an appropriate and exhaustive response, showing the unfounded nature of that criticism, which was ultimately aimed at her personally.
127Furthermore, with regard to the email of 19 January 2012, by which the applicant had provided information to the Director for Media on the way in which transmission of a programme by a French television broadcaster would be organised, the applicant considers that the email in reply from the Head of the Audiovisual Unit, of 19 January 2012, in which he criticised her for giving the Director of the Directorate for Media information about the event ahead of time, when he himself was preparing a global reply detailing the contributions of all the players involved; the applicant considers that criticism unjustified and likewise the criticism that she had chosen ‘to go it alone’ ‘bombard[ing]’ the other services with information which he was meant to send and coordinate in his capacity as head of unit, and the criticism that she projected an unprofessional image which allegedly did not demonstrate teamwork and even detracted from promoting teamwork in the service.
128Following an email which she sent on 28 February 2012 to another sector asking to be alerted to any changes, additions or deletions of subjects on the channel EuropeBySatellite (‘EbS’), the applicant complains of the tone and content of the email sent to her in reply by her head of unit the same day, and also the second exchange of emails that followed, in which he pointed out to her that there were four people on the Newsdesk Hotline and that therefore one of those four people could have had the job of monitoring and detecting changes on EbS, and he concluded that she could not ‘always pass responsibility/‘the buck’ to others ([“]we are not being kept informed!![”])’, and asked the four people on the Newsdesk Hotline to be ‘interactive, both internally and externally, in seeking information’.
129The applicant also mentions an exchange of emails of 19 March 2012 concerning a meeting regarding coverage of the event ‘Rabat [(Morocco)] — Euromed’, convened by a person from another sector, which finally only one of the four people working on the Newsdesk Hotline attended. She complains, in that regard, about the criticism expressed by the Head of the Audiovisual Unit of the three people who missed it, including the applicant, in an email in which he stated that it was pointless to call coordination meetings that were attended by only three people, namely himself, the person who had called the meeting and the only person from the Newsdesk Hotline who had come to the meeting. According to the applicant, it was normal, at that type of meeting, for that service to be represented by only one person, so, contrary to what the head of unit had suggested in his critical email, the presence of the three other people, including herself, was not necessary.
130The applicant also complains about the tone and content of an exchange of emails of 8 May 2012. In that regard, in an initial email addressed to the Head of the Audiovisual Unit with eight people and a service in copy, the applicant had made the following request to one of those recipients in a post script:‘X, could you in future wait until we have finalised our research and consultations with the parties concerned before forwarding an email with missing or incomplete information with regard to my sector.’
131In an email in reply, addressed to the applicant, with the person she had referred to and another person in copy, the head of unit wrote as follows:‘You should stop trying to put everyone in their place … This matter …, has been managed, correctly and with professionalism, by [X] … I have not had time to respond to this earlier, but I intend to arrange a meeting with you on this subject as soon as possible. I did not approve of the emails exchanged on this matter. It is one thing to draw up a schedule and adopt a way of working, but quite another thing to be impolite to colleagues. The telephone avoids a lot of misunderstandings too. The time when one can act in this way is in my view long passed and I will react very strongly to such behaviour, which goes completely beyond the bounds of the basic rules for us to work together and calls for direct responsibility on the part of those of you who have not understood the messages which I have addressed to you all many times. The message is clear. We remain a team who must and will work together, come what may. I do not have to go along with a ‘sector’ which wants to act alone or to have the last word. That is and remains my exclusive domain.’
132The applicant then replied to the last email that she did not agree with the head of unit and she did consider, yet again, that it was the Newsdesk Hotline sector which ‘got on with the job’ whilst other sectors ‘malfunctioned, withheld information or spread confusion’. Also in that email, she stated that, in a number of cases, the members of the Newsdesk Hotline were faced with faits accomplis on the part of other sectors and they did not try to have the last word. She further stated that the other members of the Newsdesk Hotline were exhausted by all this.
133At a meeting of the unit held on 10 May 2012 to discuss problems that existed in the unit and provide solutions, the Head of the Audiovisual Unit, according to the applicant, verbally attacked her directly, criticising her openly and exclusively, accusing her of withholding information and failing to show team spirit and so ultimately, accusing her of being responsible for the problems. He also attacked her personally, questioning her about other subjects that had nothing to do with coordinating the three areas of the unit and without allowing her to reply. In an email headed ‘Confidential’, sent to the Head of the Audiovisual Unit on 12 May 2012, Y moreover stated that he had ‘gone home with his stomach in a knot and had a sleepless night’. That person reports that ‘that meeting was very difficult and strayed out of context, with comments that were out of place’ and he wondered ‘how [the applicant had] managed to hold back her emotions and keep calm’. The day after that meeting the applicant went on sick leave.
134The applicant also recalls an incident that arose during November 2012 concerning replacement, during the lunch break, of a colleague from the Audiovisual Unit accreditation service who, on her own, had to welcome journalists to the Parliament during a visit by 16 Heads of State or Government for an event entitled ‘Friends of Cohesion’. During the course of the day, the head of unit berated the applicant because members of the Newsdesk Hotline had not provided the backup he had asked for so that their colleague, Z, could take her lunch break. In that regard, the applicant states that she had had an exchange of emails with Z on 4 October 2012 in order to put backup in place so she could take a lunch break.
135However, in an email of 13 November 2012 addressed to the members of the unit, the head of unit stated that, even though Z had not complained, he and other colleagues had noticed that a schedule of replacements for the person concerned, which he had been asking for since September, had not been arranged, with the result that she was not able to take a break. He went on as follows:‘Lastly, I have just spoken to the person who has been coordinating the team up until now; she answered me in a challenging and very unpleasant tone when I reminded her that today, with the arrival of a large number of teams for [‘Friends of Cohesion’] and for the Commissioners’ hearings, it was necessary to give [Z] some help. The message does not seem to have been taken into account in your ‘priorities’ for the day … As we discussed yesterday [at the] planning meeting, I consider that welcoming the journalists on [their] arrival is top priority today, and clearly I wish to have a binding schedule from now on with a name for every day to provide a replacement for our colleague at least during the lunch break and at any other time when she, like you would, wishes to take a break. I hope this message is sufficiently clear to everyone … You are part of a team and if any of you do not fit in here you are at liberty to look for a job somewhere else that is better suited to what you want.’
136Subsequently, the Head of the Audiovisual Unit informed the applicant, at a meeting held on 4 December 2012 in the presence of an assistant, that he was the person in charge, whether the applicant liked it or not. In that context, as reported by the applicant, he made the following threatening comment:‘The team functions with or without you; every day I receive hundreds of [CVs] from people who are very capable of doing what you do. If you do not alter your approach I shall have to take a decision.’
137The applicant also maintains that, when she was not present, the head of unit criticised the work of the team which she coordinated, at two meetings in particular, a matter which the applicant raised with him in an email of 12 November 2013 in which she expressed her disappointment at such behaviour on the part of the head of unit. She further produced in that regard, inter alia, an exchange of emails, of 18 March 2014, between Y and the Head of the Audiovisual Unit in which Y told the latter that he considered that ‘the purpose of the meeting [held on 17 March 2014 was] to verbally assassinate and belittle certain persons, and a service that was not present’. Furthermore, first, she produced an email from a former secretary to the Head of the Audiovisual Unit who, in the context of her reassignment to another service, wrote as follows:‘My experience at Audiovisual?! It is like being addicted to heroin: you take the drug thinking … you will find paradise, but in fact you are going down deeper and deeper into hell. I have never been happier than when I left.’
138Secondly, the applicant mentions the resignation of an assistant to the Head of the Audiovisual Unit, tendered in a brief email of 27 January 2015, as being a sign of the discontent created by that head of unit’s behaviour.
139On 25 September 2014, at a meeting convened by the Head of the Audiovisual Unit, a difference of opinion arose between him and the applicant. In that context, when she asked him to open the history function on a computer in order to establish that, contrary to what he argued, the contributions of the members of the Newsdesk Hotline were positive, he rudely interrupted her and reminded her that he was the head and he was the one who decided whether a person should represent a sector at unit meetings. He also stated that the Newsdesk Hotline was useless.
140Following that incident, the applicant went to see the Parliament’s medical service and, with effect from 26 September 2014, she was placed on sick leave; since then, she has not returned to work. In that connection, she considers that, in breach of the duty of care, the medical certificates she provided were not properly taken into account by the AECE in its handling of her request for assistance.
–Individual assessment of the various types of conduct at issue
141As a preliminary point, the Court notes that, although it cannot be ruled out that the Head of the Audiovisual Unit may have adopted an inappropriate tone at unit meetings or in discussions with the applicant, accidental words or gestures, even if they appear to be inappropriate, are excluded from the scope of Article 12a(3) of the Staff Regulations (judgment of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 95).
142Furthermore, in view of the broad discretion enjoyed by the institutions in the organisation of their services, neither administrative decisions, even if they are difficult to accept, nor disagreements with the administration over questions relating to the organisation of services, can by themselves prove the existence of psychological harassment (see judgment of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 98 and the case-law cited).
143In the present case, although the facts indicate a conflictual relationship within a difficult administrative context, they do not show any evidence of acts of an unfair or excessive nature, and the words and behaviour that were documented show, at most, poor, indeed on occasions inept, handling of a conflict situation by the Head of the Audiovisual Unit.
144Although the tone adopted by the head of unit in some of those emails may sometimes appear a little familiar or unstructured from the point of view of language or style, but not excessively so, this must be viewed in the context of the service’s operating difficulties following on from its restructuring.
145In that regard, the Court notes that the majority of the emails produced by the applicant that had been sent to her by her head of unit concerned reprimands made by that head of unit, which, in principle, fell within his field of competence as a hierarchical superior.
146Thus, regarding the emails in which he reprimanded the applicant for conduct, an action or an omission which in his view did not meet the requirements of the service, such as the emails of 26 September 2011 and of 19 January, 28 February and 19 March 2012, it must be said that they do not necessarily appear to be excessive or open to criticism to an impartial and reasonable observer, of normal sensitivity and in the same situation. Hence, such reprimands, made in measured terms, could be objectively justified in the light of the applicant’s conduct criticised by the Head of the Audiovisual Unit.
147It should be noted that criticism by a hierarchical superior of work or a task carried out by a subordinate is not in itself inappropriate behaviour since, were that the case, the management of a service would be almost impossible (judgments of 11 July 2013, Tzirani v Commission, F‑46/11, EU:F:2013:115, paragraph 97, and of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 87). Likewise, negative comments addressed to a member of staff do not necessarily undermine his personality, dignity or integrity where they are formulated in measured terms and are not based on allegations that are unfair and lacking any connection with objective facts (judgment of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 87; see also, to that effect, judgment of 24 February 2010, Menghi v ENISA, F‑2/09, EU:F:2010:12, paragraph 110).
148As regards the email of 26 September 2011, irrespective of the explanations provided subsequently by the applicant, on which the Head of the Audiovisual Unit was not, contrary to what the applicant contends, necessarily obliged to adopt a position in writing or within a specified period, that head of unit is merely echoing a complaint by a colleague from another service concerning the lack of support from the applicant and other members of the Newsdesk Hotline. Such a reprimand, issued in measured terms, would not appear to an impartial and reasonable observer to be excessive or open to criticism.
149As regards the email of 19 January 2012, it appears that, since the applicant had taken the initiative to send information to the Director of the Media Directorate, the hierarchical superior of the Head of the Audiovisual Unit, without referring to the latter, it was not inappropriate for that head of unit to complain about this to the applicant and to remind her, in measured terms, of his demands that the members of the unit should act collectively and under his hierarchical authority, even though, it is true, at a formal level the email could have been more carefully worded. In that regard, the fact that in the past and subsequently the applicant had occasion, or was accustomed, to communicate directly with the Director in question is irrelevant, since it is undisputed that the head of unit was her direct hierarchical superior and, as such, could require her to act within a collective framework.
150As regards the exchange of emails of 28 February 2012, it should be noted that, in her email sent at 11.04, the applicant informed the Head of the Audiovisual Unit that it ‘[was] necessary for someone from EbS … to inform [the Newsdesk Hotline] of changes or queries in order to have credible information for [their] “clients”’. Thus, given that she asked for a person from the office in charge of EbS to inform the Newsdesk Hotline of those changes in real time, it was not inappropriate for the head of unit to tell her in reply that, from his point of view, as the hierarchical superior with responsibility for both the Newsdesk Hotline and EbS, one of the four persons working on the Newsdesk Hotline should undertake that task, which the applicant considered needed to be done and wanted someone else to take over.
151Furthermore, that email was not addressed solely to the applicant and, again, even though the tone of the email could have been less familiar, the criticisms thus made not only of the applicant but also of one of her colleagues from the Newsdesk Hotline, do not appear to be either unreasonable or excessive. Lastly, the Court notes that, in reply to the applicant’s email and to the one from the head of unit, someone from EbS, in an email written in Spanish, clearly questioned the truth of the applicant’s assertion that she had attempted to contact that service by telephone, and even accused the applicant of lying and casting the blame on the others.
152As regards the reprimand issued by the Head of the Audiovisual Unit, in an email of 19 March 2012, concerning the absence of the applicant and two of her colleagues from a meeting, it should be noted that an official or other staff member is obliged to make himself available to meet with his superior when that person summons him to a meeting (judgment of 10 July 2014, CW v Parliament, F‑48/13, EU:F:2014:186, paragraph 123). Accordingly, irrespective of the justifications for that absence subsequently provided by the applicant, the head of unit’s email of 19 March 2012 by no means appears inappropriate to an impartial and reasonable observer.
153As regards the exchange of emails of 8 May 2012, it should be noted that, in the email initially sent by the applicant to the Head of the Audiovisual Unit, to eight other persons and to a service, she directly challenged a colleague from another service, implying that he was putting out incomplete information concerning the Newsdesk Hotline. Such an allegation, made in the context of an email sent to multiple recipients, could be perceived by the person concerned as belittling the quality of his work, although, given her functions and her grade, the applicant was by no means in a position of hierarchical superiority entitling her to assess and give an opinion in this way on the quality of that person’s professional performance. Moreover, every official or other staff member must not only refrain from challenging without grounds the authority of his hierarchical superiors, but must also show measure and caution, in particular in selecting multiple recipients, when sending emails connection with such an approach or designed to question the quality of the work of one of their colleagues.
154In those circumstances, although a less familiar expression than ‘you should stop trying to put everyone in their place’ could have been used by the Head of the Audiovisual Unit, it was still appropriate and legitimate for him to explain to the applicant that she had gone beyond the limits of her area of competence, whilst reassuring the person in question as to the quality of his or her professional performance, the assessment of which was primarily a matter for that head of unit. Furthermore, whereas the applicant had made the criticism of X in the form of an instruction contained in an email sent to multiple recipients, the head of unit took care to send his reply only to the applicant, to X and to the person responsible for planning production resources.
155As regards the question of the replacement for Z during the reception of journalists at the Parliament, the firmness of the tone used in the email of 13 November 2012 reveals the existence of a conflict with the applicant on that question and, clearly, difficulties in communicating. However, that emailed reprimand, which was moreover sent to the whole team concerned, does not, as such, constitute a written comment undermining the personality, the dignity or the physical or mental integrity of the applicant or the other members of that team.
156As regards, lastly, the alleged repeated threats from the Head of the Audiovisual Unit regarding his intention not to renew the applicant’s contract unless she altered her behaviour, it is clear from the documents in the case that, although it is established that the head of unit expressed a similar view with regard to all the members of the Newsdesk Hotline, in this instance in the email of 13 November 2012 (see paragraph 135 above), the applicant has nonetheless failed to prove that the head of unit issued a threat specifically against her regarding the renewal of her contract of employment. In particular, although one witness did state that, in his case, the Head of the Audiovisual Unit had reminded him ‘that he was only a temporary staff’ and although another ‘thought that his [own] contract [was] continuing because he had not complained’, that does not concern the question of the applicant’s own contract.
157Further and in any event, first, so long as the applicant was in active employment, her contract was renewed and, in particular, it is clear from paragraph 94 of the judgment of 24 April 2017, HF v Parliament (T‑584/16, EU:T:2017:282), that the head of unit took the necessary steps to ensure that the contracts of persons such as the applicant would be renewed for an entire year and that he was trying, within his sphere of responsibility, to obtain so far as possible renewal of their employment contracts within his unit for longer than previously. Secondly, even though the tone of the email of 13 November 2012 addressed to all those working on the Newsdesk Hotline may be perceived as being familiar and it cannot be ruled out that, at the meeting referred to in that email, the head of unit implied that he would assess the appropriateness of renewing contracts of temporary staff in the light of their compliance with his instructions, it is not necessarily unreasonable for a hierarchical superior to express his dissatisfaction with the conduct and the quality of the professional performance of his subordinates.
–Overall assessment of the conduct at issue
158Taking into account the various facts at issue examined individually above and, even though they could not necessarily all be documented, all the other evidence or events described by the applicant in her pleadings, in particular the lively exchanges that took place at the meetings on 4 December 2012 and 25 September 2014, the Court considers that, even though the style and tone of some of the written comments of the Head of the Audiovisual Unit and his behaviour, at those meetings and also during direct bilateral discussions with the applicant, might be perceived, including from the viewpoint of the type of language used, as being particularly direct and forthright — and even with regard to some casual comments, as being sarcastic — the fact remains that, in the light of the context in which they were made, inter alia the existence of organisational difficulties, but also of the tone used by the applicant herself, in particular in some of her emails sent to her superiors or others of her colleagues, and as reported by some of the witnesses, an impartial and reasonable observer would not necessarily have perceived the conduct of the head of unit in question as being improper within the meaning of Article 12a(3) of the Staff Regulations.
159In that regard, so far as the possibility for the AECE to assess the alleged facts in the light of the service’s operational difficulties is concerned, it should be pointed out, as was held in the case-law referred to in paragraph 121 above, that assessment of the existence of psychological harassment involves examining whether the alleged facts are objectively sufficiently real, in the sense that an impartial and reasonable observer, of normal sensitivity and in the same situation, would consider them to be excessive and open to criticism. In the present case, the service’s operating difficulties form part of the context in which the alleged facts occurred, so they could be taken into account in order to recreate the conditions in which that observer should be placed in order to determine how he would have assessed the alleged facts if he had been a spectator of them.
160Furthermore, the Court notes in that regard that the reprimands from the Head of the Audiovisual Unit, issued in emails or at meetings, were not exclusively addressed to the applicant and that, in his capacity as her hierarchical superior, he was entitled to convey instructions, to reiterate them and to express, where appropriate, his dissatisfaction at the level and quality of the professional performance of members of the unit, including that of the applicant. Moreover, although the working atmosphere within the Audiovisual Unit was not necessarily of the best, as might be indicated by the departure of two of the people working with the Head of the Audiovisual Unit, that does not mean that the applicant was subjected to psychological harassment. Lastly, the documents provided by the applicant and the records of the witness hearings might indicate that she herself might have contributed to the tension referred to by the AECE in the contested decision, read in the light of the letter of 8 December 2015, for example through her emails of 25 September 2011 and of 28 February and 8 May 2012.
161As regards the records of the witness hearings, contrary to what the applicant contends, the way in which the witness statements were written up to serve the purposes of such a document, that is to say the drafting of the opinion of the Advisory Committee, does not establish that they were incomplete, or that they could not be used as adequate substantive evidence in the context of dealing with the present plea. In particular, she cannot accuse the Advisory Committee of raising vague or irrelevant questions when it had broad discretion with regard to the conduct of the inquiry entrusted to it by the AECE.
162As regards the content of the testimonies, clearly it confirms the existence of ‘clans’ of officials or other staff members within the Audiovisual Unit, one of which was visibly structured around the Newsdesk Hotline coordinated by the applicant, and of organisational difficulties between the various sectors of that unit, having implications for the comprehensibility of the roles of those sectors for the unit’s discussion partners, both inside and outside the Parliament, but also for interactions between those sectors, as illustrated by the references, in this case, to the difficulties in replacing someone during lunch breaks, the difficulties relating to the way in which certain information is transmitted or those concerning the appropriate decision-making process for the organisation of events.
163Some testimonies tend to substantiate the validity of some of the applicant’s assertions regarding the strong personality of the Head of the Audiovisual Unit, a certain amount of aggressiveness towards her on the part of the latter and the existence of relationship difficulties between the head of unit and others working in his unit, none of whom had, however, submitted a request for assistance under Article 24 of the Staff Regulations. On the other hand, a similar, even higher, number of testimonies refer to inappropriate behaviour on the part of the applicant, substantiating the validity of the head of unit’s criticisms of her, and also the existence of professional differences between the applicant and others working in the Audiovisual Unit, of her tendency to withhold information in order to make herself indispensable for the operation of the Newsdesk Hotline and the Audiovisual Unit, of the applicant’s lack of willingness to give help to other sectors of the Audiovisual Unit, even her aggressiveness and lying about some aspects of her professional performance. Some testimonies show, moreover, that the head of unit’s criticisms were not specifically directed against the applicant, but against the operation and performance of the Newsdesk Hotline sector, which she was, de facto, responsible for coordinating.
164In conclusion, the Court considers that, although the various documents in the present case, including the opinion of the Advisory Committee and the records of the witness hearings, shed light on some undeniable weaknesses in the management style of the Head of the Audiovisual Unit, inter alia inappropriate comments addressed to members of staff of that unit, including the applicant, regarding the fact that they were ‘at liberty to look for work elsewhere’, the AECE did not infringe Article 12a of the Staff Regulations or err in its assessment of the facts when it took the view in the contested decision, referring to the considerations set out in the letter of 8 December 2015, that the alleged facts, assessed overall, did not demonstrate the existence of improper conduct by the head of unit towards the applicant, in the sense that an objective observer, of normal sensitivity, would not have considered that the factual situation described was such that it would undermine the personality, dignity or physical or psychological integrity of the applicant.
165That conclusion is not altered by the fact that the Head of the Audiovisual Unit was informed that the applicant had submitted the request for assistance and he in turn had informed the members of his unit, at a unit meeting held on 13 January 2015. It is preferable in principle, in order to protect both the alleged victim and the professional integrity of the alleged harasser, that, initially, the AECE does not inform the latter, or other third parties, of the submission of a request for assistance and of the identity of the person making the request. However, since the Staff Regulations do not make any special provisions in that respect, the AECE may, in any event, where, as in the present case, the alleged victim has been the subject of a distancing measure, decide, in the context of handling a request for assistance, to inform the person implicated in that request of the existence of the request, as long as disclosure of that information does not undermine the effectiveness of the inquiry, which was not so in the present case. In addition, again in the present case, the members of the Audiovisual Unit needed to be informed, eventually, of the existence of the inquiry, since they were being asked to testify before the Advisory Committee.
166It follows that the applicant’s complaint, in which she claims, in the context of the present plea, that there was a ‘manifest error of assessment’ on the part of the AECE and infringement of Article 12a of the Staff Regulations, must be rejected.
–Further complaints
167As regards the complaint concerning infringement by the AECE of Article 24 of the Staff Regulations, the Court holds that, since that authority had, without erring in law in the application of the definition of ‘psychological harassment’ referred to in Article 12a of the Staff Regulations, established that the facts described in the request for assistance, which had been the subject of the administrative inquiry, should not ultimately be considered to constitute psychological harassment, that authority was not required to adopt additional measures of assistance. In the present case, the measures initially taken by the AECE, namely the distancing of the applicant and the opening of an administrative inquiry, were based on the finding that in the request for assistance the applicant had provided adequate prima facie evidence of the facts she alleged. However, since at the end of the administrative inquiry the AECE considered that the case before it was not one of psychological harassment within the meaning of Article 12a of the Staff Regulations, it was not required, inter alia in view of its broad discretion, to adopt other measures of assistance and could therefore refuse the request for assistance in the light of Article 24 the Staff Regulations.
168As regards the complaint concerning the AECE’s duty of care, contrary to what the applicant contends, although that authority was obliged to examine the request for assistance in a spirit of openness, the duty of care which it must observe did not require it to be more open-minded because the applicant had provided medical certificates establishing that she was unable to work due to ‘burn out’, or even that she had experienced psychological harassment. The AECE was still required to examine that request for assistance in the light of the definition contained in Article 12a(3) of the Staff Regulations. In that regard, it is settled case-law that the medical certificates submitted by the applicant, if they reveal that the applicant has psychological problems, do not establish, however, that those problems result from psychological harassment within the meaning of the Staff Regulations, since, to make such a finding of harassment, the doctors thus consulted necessarily rely exclusively on the description that the applicant made of her working conditions in the Parliament (see, to that effect, judgments of 2 December 2008, K v Parliament, F‑15/07, EU:F:2008:158, paragraph 41, and of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 127) and that, in any event, they were not required to apply the definition contained in Article 12a(3) of the Staff Regulations.
169Lastly, since in the present plea the applicant is seeking to question the lawfulness of the decision not to renew her contract, and not, as she states, of the dismissal decision, it must be held that that line of argument is manifestly inadmissible in the light of the force of res judicata pertaining to the judgment of 24 April 2017, HF v Parliament (T‑584/16, EU:T:2017:282).
170In the light of all the above considerations, the third plea must be rejected and, hence, the claim for annulment must be rejected in its entirety.
Claim for damages
171In support of her claim for damages, the applicant maintains that she suffered non‑material damage as a result of the unlawful conduct of the AECE in its handling of the request for assistance. She alleges she experienced uncertainty and anxiety and her health had declined particularly since September 2014. On those grounds she claims the award of EUR 70000 in compensation.
172Moreover, the applicant claims a further amount of EUR 20000 in compensation for non-material damage resulting from the irregularities that affected the inquiry procedure, in this instance regarding the proceedings of the Advisory Committee.
173The applicant considers that the AECE infringed the ‘reasonable time’ principle in its handling of the request for assistance and moreover that the Advisory Committee, although she had referred the matter to it in accordance with the flexible requirements laid down in the Internal Rules on Harassment, did not comply with those rules and, in particular, did not hear her within the 10‑day period laid down in those rules and did not make any serious attempt to contact her until 3 March 2015. She also complains about the timeframe of the witness hearings conducted by the Advisory Committee, noting inter alia that over 6 months passed between her hearing on 25 March 2015 and the hearings of the last witnesses, which took place on 6 October that year. To this is added the fact that originally the AECE wrongly considered, in the decision of 4 February 2015, that the file was closed. Lastly, according to the applicant, she also suffered non‑material damage due to the presence, at the hearings by the Advisory Committee, of persons who were not on that committee and to whom as a result confidential information about her was disclosed.
174The Parliament contends that the claim for damages should be rejected, pointing out that in the present case the AECE had promptly adopted assistance measures in this instance by deciding to reassign the applicant, who was on sick leave at the time, and to open the administrative inquiry. It considers moreover that the applicant did not submit to the Advisory Committee a complaint within the meaning of the Internal Rules on Harassment, since the Chairman of the Advisory Committee had been copied in on the request for assistance addressed to the AECE only in his capacity as Head of the Human Resources Unit of the Directorate for Resources of DG Personnel and not in his capacity as Chairman of the Advisory Committee. Lastly, the Parliament considers that the applicant has failed to state what confidential information was disclosed to third parties.
175In that regard, suffice it to note that claims for compensation for material or non‑material damage must be rejected where they are closely associated with claims for annulment which have themselves been dismissed as unfounded (judgment of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraph 69; see also, to that effect, judgments of 6 March 2001, Connolly v Commission, C‑274/99 P, EU:C:2001:127, paragraph 129, and of 14 September 2006, Commission v Fernández Gómez, C‑417/05 P, EU:C:2006:582, paragraph 51).
176Consequently, in respect of that part of it which is closely associated with the claim for annulment, the claim for damages must be rejected as unfounded.
177As regards that part of the claim for damages concerning non-material damage allegedly linked to unlawful conduct not associated with that which affected the contested decision, in this case problems within the Advisory Committee, the Court notes that the applicant was, in any event, entitled to submit a request for assistance under Article 24 of the Staff Regulations to the AECE, without being under an obligation to make a prior referral to the Advisory Committee (judgment of 16 May 2017, CW v Parliament, T‑742/16 RENV, not published, EU:T:2017:338, paragraph 54).
178Next, the fact remains that the applicant addressed the request for assistance to the Secretary-General and only in copy to the Chairman of the Advisory Committee, the President of the Parliament and the Director-General for Personnel. It follows that the applicant sent a copy of the request for assistance to the latter three only for information. Accordingly, the applicant cannot argue that she properly referred her case to the Advisory Committee. She cannot therefore complain that the Parliament did not ensure compliance — by that internal body which is separate from the AECE — of the Internal Rules on Harassment, in particular the obligation for the Advisory Committee, as laid down in Article 11 of those rules, to interview the alleged victim within 10 working days of his or her request.
179As for the length of time taken in handling the request for assistance, which was submitted on 11 December 2014, it was nearly 18 months, which is somewhat long. However, it must be stated that, initially, incorrect, even inconsistent, replies were given by the Director-General for Personnel in his letters of 4 February and 4 March 2015 as regards whether there had been an implied rejection of the request for assistance. That being said, according to the principle of good administration, the incorrect nature of the information supplied by the AECE was subsequently noted by the Secretary-General in the decision of 20 August 2015 in reply to the applicant’s complaint about that point. Furthermore, that aspect of the dispute has already justified the Parliament being ordered to pay half the costs incurred by the applicant in the case giving rise to the judgment of 24 April 2017, HF v Parliament (T‑570/16, EU:T:2017:283).
180As regards the inquiry carried out by the Advisory Committee, in reality it only took place between the date of the referral to the Advisory Committee by the Director-General for Personnel, which was 2 February 2015, and the date on which that committee delivered its advisory opinion, which was in this instance 12 October 2015, a period of more than 8 months. That period of more than 8 months, whilst demonstrating that the proceedings of the Advisory Committee took place relatively slowly, is not unreasonable however in the light of the number of witnesses that had to be heard, the type and number of the applicant’s allegations, the fact that, since the persons comprising that advisory body came from various services, the sessions of the Advisory Committee could not take place regularly and the fact that at those sessions the committee had to interview other witnesses called by the committee to testify in cases other than the applicant’s case.
181As regards the length of time that passed between the date on which the advisory opinion was sent to the Secretary-General and the date of the contested decision was taken, which was more than 7 months, that was due to the applicant exercising her right to be heard in respect of the grounds on which the AECE proposed to reject her complaint.
182The Court considers therefore that, taken overall, the length of time the AECE took in handling the request for assistance was not unreasonable in the present case.
183As regards the applicant’s allegation that confidential information about her was disclosed to persons who were not members of the Advisory Committee, regardless of the fact that it is not substantiated in any way, the Court would like to point out that it appears from the records of the hearings that all the persons present were full or alternate members of the Advisory Committee, which comprised a total of nine members and two secretaries. Consequently, the arguments in that regard must be rejected as unfounded.
184It is clear from the above that the claim for damages must be rejected.
185The action must therefore be dismissed in its entirety as being unfounded.
Costs
186Under 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. However, according to Article 135 of the Rules of Procedure, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his own costs, or even that he is not to be ordered to pay any costs. On the other hand, the Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if he has made the opposite party incur costs which the Court holds to be unreasonable or vexatious.
187In the present case, the Court notes that the AECE did not provide the applicant with the opinion of the Advisory Committee so that she could submit her observations on the reasons given in the letter of 8 December 2015 to support rejection of the request for assistance. Moreover, as regards the question whether the Director-General for Personnel and the Secretary-General were in possession of that opinion and the records of the witness hearings conducted by the Advisory Committee for the purposes of adopting the contested decision and the decision rejecting the complaint, respectively, the Parliament provided replies that were manifestly inconsistent, as the applicant rightly stated in her observations of 26 March 2018. Whilst, in its replies to a similar question from the Court in that regard, namely in its reply of 15 December 2017 and at the hearing, the Parliament stated that those two persons were only in possession of an oral report given by the Chairman of the Advisory Committee, the Secretary-General finally testified on 7 March 2018, in reply to an express request from the Court made at the end of the hearing and notwithstanding an incorrect date mentioned by the applicant, that he and the Director-General for Personnel had been in possession of the opinion of the Advisory Committee and of the records of the witness hearings.
188In those circumstances, the Court considers that the conduct of the Parliament justifies it bearing its own costs and, in addition, paying a quarter of the costs incurred by the applicant.
Operative part
On those grounds,THE GENERAL COURT (First Chamber, Extended Composition)hereby:
1.Dismisses the action;
2.Orders the European Parliament to bear its own costs and to pay a quarter of the costs incurred by HF;
3.Orders HF to bear three quarters of her own costs.
Delivered in open court in Luxembourg on 29 June 2018.
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