Contents
Judgment of the General Court (Ninth Chamber)17 July 2024note(Common foreign and security policy — EUCAP Sahel-Niger mission — Seconded national staff members — Psychological harassment — Rejection of a claim for compensation — Action for annulment — No interest in bringing proceedings — Inadmissibility — Non-contractual liability — Right to dignity — Articles 1 and 31 of the Charter of Fundamental Rights — Mediation procedure — Failure to send the mediator’s report — Failure to implement the mediator’s recommendations — Right to good administration — Article 41 of the Charter of Fundamental Rights — Duty to have regard for the welfare of officials — Non-material damage — Material damage — Causal link)In Case T‑371/22,Marco Montanari, residing in Reggio Emilia (Italy), represented by S. Rodrigues and A. Champetier, lawyers,vEUCAP Sahel Niger, represented by E. Raoult, lawyer,THE GENERAL COURT (Ninth Chamber),composed of L. Truchot (Rapporteur), President, H. Kanninen and T. Perišin, Judges,Registrar: L. Ramette, Administrator,having regard to the written part of the procedure, in particular:– the pleas of lack of jurisdiction and inadmissibility raised by the defendant by document lodged at the General Court Registry on 30 September 2022,– the applicant’s observations on the pleas lodged at the Court Registry on 4 November 2022,– the order of 16 December 2022 reserving the decision on the pleas for the final judgment,further to the hearing on 29 November 2023,gives the following
JudgmentOnly the paragraphs of the present judgment which the General Court considers it appropriate to publish are reproduced here.
1By his action, the applicant, Marco Montanari, seeks, on the one hand, on the basis of Article 263 TFEU, the annulment of the decision of the European Union Common Security and Defence Policy (CSDP) mission in Niger (EUCAP Sahel Niger; ‘the Mission’) of 28 April 2022 rejecting his claim for compensation of 4 February 2022 and, on the other hand, on the basis of Article 268 TFEU, compensation for the damage allegedly suffered as a result of psychological harassment and the infringement of the right to good administration and of the duty to have regard for the welfare of officials.
Background to the dispute
2The applicant was seconded by the Italian Government to the Mission as a political advisor from 14 April 2015.
3In September 2016, the applicant’s secondment to the Mission was extended until 14 April 2018.
4On 8 March 2017, the applicant requested the Deputy Head of Mission to bring disciplinary proceedings against the Head of the Press and Public Information Office (‘PPIO’) for alleged harassment of the applicant (‘the first complaint of 8 March 2017’).
5On the same day, the applicant requested the Deputy Head of Mission to bring disciplinary proceedings against the Head of Mission and the PPIO, and against the first signatory of the leave granted to the PPIO so that he could travel, by land, to Burkina Faso on 25 and 26 February 2017, on the ground that, on the one hand, such travel constituted, on the part of the PPIO, unfair behaviour towards the Mission’s authority, and, on the other hand, the granting of leave constituted, on the part of the Head of Mission, gross negligence in breach of the duty to have regard for the welfare of officials. In the alternative, in the event that the Deputy Head of Mission was the first signatory of that granting of leave, the applicant requested that he forward his request for disciplinary proceedings to the Civilian Planning and Conduct Capability (CPCC) Directorate of the European External Action Service (EEAS), stating that, in such a case, he also requested that disciplinary proceedings be brought against him for gross negligence (‘the second complaint of 8 March 2017’).
6On 24 March 2017, the Deputy Head of Mission informed the applicant that no further action would be taken regarding the first complaint of 8 March 2017.
7On 28 March 2017, the applicant informed the Director of the CPCC, in his capacity as Civilian Operations Commander (COC) of the Mission, that the first and second complaints of 8 March 2017 had been filed and asked him to deal with both complaints (‘the report of 28 March 2017’).
8On 15 May 2017, the Deputy COC informed the Head of Mission that the second complaint of 8 March 2017 would be dealt with as a management matter, without recourse to a formal disciplinary procedure.
9On 17 July 2017, the applicant requested the COC to open an investigation for harassment against the Head of Mission and his deputy (‘the report of 17 July 2017’). Later that same day, the Head of Mission sent the applicant a written warning on the ground that he had disrespected him at a meeting held on 10 April (‘the first written warning’).
10On 18 July 2017, the applicant forwarded the first written warning to the COC requesting that it be taken into account as part of the investigation into the report of 17 July 2017.
11On 20 July 2017, the applicant was informed that an officer of the CPCC (‘the mediator’) had been appointed to assess the situation in situ the following week.
12On 25 and 26 July 2017, the mediator held several meetings at the Mission, some of which were with the applicant.
13On 27 July 2017, the Mission’s Human Resources department (‘the HR department’) requested the applicant to complete his performance evaluation form by 4 August 2017 at the latest, with a view to renewing his secondment from 14 April 2018.
14On the same day, the head of the HR department sent the applicant an updated annual leave record, following a request that he account for days of unauthorised absence.
15On 28 July 2017, the applicant informed the COC of the exchanges with the HR department referred to in paragraphs 13 and 14 above in order to supplement the report of 17 July 2017.
16On 29 July 2017, the mediator delivered his report (‘the report of 29 July 2017’).
17On 23 August 2017, the applicant advised the HR department that he would not be seeking an extension of his secondment to the Mission from 14 April 2018.
18On 25 October 2017, the applicant sent the COC new evidence to supplement the report of 17 July 2017.
19On 22 November 2017, the Mission informed the Italian authorities that the applicant had been absent without leave between 17 and 20 November 2017 and that it intended to deduct four days from the payment of the applicant’s daily allowances.
20On 23 November 2017, the Head of Mission rejected the applicant’s request for regularisation of an unauthorised three-day absence and sent him a second written warning (‘the second written warning’). On the same day, the applicant requested the COC to open a new investigation on the ground that the facts referred to in paragraph 19 above amounted to harassment on the part of the Head of Mission and his deputy (‘the report of 23 November 2017’).
21On 28 November 2017, the applicant informed the COC that he had received a three-day payroll deduction and asked him to clarify his position on the reports of 17 July and 23 November 2017.
22On 4 December 2017, the applicant forwarded the content of the reports of 17 July and 23 November 2017 to the Deputy Secretary General of the EEAS in charge of the CPCC.
23On 17 January 2018, the applicant requested the Secretary General of the EEAS to inform him as soon as possible of the mediator’s findings and the action taken following the reports of 17 July and 23 November 2017.
24On 18 March 2018, the applicant resigned as political advisor to the Mission.
25On 10 April 2018, in response to the letter referred to in paragraph 23 above, the COC informed the applicant that the alleged breaches that the latter had reported were ‘management matters’ and that ‘the evidence in the file did not justify the opening of a disciplinary procedure’ (‘the decision of 10 April 2018’).
26On 31 July 2018, the applicant requested access, inter alia, to the report of 29 July 2017.
27By decision of 24 October 2018, the EEAS definitively rejected the request for access referred to in paragraph 26 above.
28By judgment of 12 December 2019, Montanari v EEAS (T‑692/18, not published, EU:T:2019:850), the General Court annulled the decision of 24 October 2018.
29On 13 December 2019 and on 13 March and 9 July 2020, the applicant questioned the EEAS on the action it intended to take on the judgment referred to in paragraph 28 above.
30By letter of 24 July 2020, the EEAS provided the applicant with the full report of 29 July 2017, with the exception of personal data relating to other data subjects.
31On 26 May 2021, the applicant applied to the EEAS for payment of the sum of EUR 971 395.92 as compensation for material, physical and non-material damage allegedly caused by the psychological harassment and breaches of the right to good administration and the duty to have regard for the welfare of officials which the applicant attributed to the Mission.
32On 24 September 2021, the EEAS rejected the claim for compensation referred to in paragraph 31 above on the grounds, inter alia, that the applicant had never been employed by the EEAS and that the Mission was an entirely separate entity from the EEAS, from both a legal and operational point of view.
33On 22 December 2021, the applicant lodged a complaint with the EEAS under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) with a view to challenging the decision rejecting the claim for compensation referred to in paragraph 31 above.
34By two separate letters of 4 February 2022, the applicant requested the Council of the European Union and the Mission to pay the sum of EUR 972 395.92 as compensation for material, physical and non-material damage resulting from psychological harassment and breaches of the right to good administration and the duty to have regard for the welfare of officials (as regards the request sent to the Mission, the ‘third claim for compensation’).
35On 25 March 2022, the Council rejected the claim that had been sent to it for compensation, referred to above in paragraph 34.
36On 28 April 2022, the Mission rejected the third claim for compensation.
37On 30 May 2022, the EEAS rejected the complaint referred to in paragraph 33 above.
Forms of order sought
38The applicant claims, in essence, that the Court should:– annul the decision of 28 April 2022 rejecting the third claim for compensation;– order the Mission to pay him the sum of EUR 982840;– order the Mission to pay the costs.
39The Mission claims, in essence, that the Court should:– dismiss the action as being brought before a court that has no jurisdiction;– in the alternative, dismiss the action as inadmissible;– in the further alternative, dismiss the action as unfounded;– order the applicant to pay the costs.
Law
The plea of lack of jurisdiction
40The Mission submits that the General Court does not have jurisdiction to hear the present action on the ground that the applicant performed the duties of political advisor within the Mission as an expert seconded by the Italian Ministry of Foreign Affairs, in accordance with Article 7(2) of Council Decision 2012/392/CFSP of 16 July 2012 on the European Union CSDP mission in Niger (EUCAP Sahel Niger) (OJ 2012 L 187, p. 48).
41Thus, the Mission considers that any complaint the applicant may have in relation to the performance of his duties must be directed against the Italian national authorities. In that regard, the Mission refers to a complaint that the applicant is reported to have lodged with an Italian court. It also cites the solution adopted by the General Court in the order of 23 April 2015, Chatzianagnostou v Council and Others (T‑383/13, not published, EU:T:2015:246), which has been confirmed by the Court of Justice.
42The applicant contests the plea of lack of jurisdiction raised by the Mission by clarifying, inter alia, that the complaint that he lodged with the employment chamber of the Tribunale di Roma (District Court, Rome, Italy) is unrelated to the third claim for compensation and the present action.
43In that regard, it should be recalled that the Mission was established by Decision 2012/392 to support the capacity-building of Nigerien security actors in the fight against terrorism and organised crime.
44In particular, Article 7(1) of Decision 2012/392 provides that the Mission’s staff consist primarily of staff seconded by Member States, Union institutions or the EEAS. Each Member State, Union institution and the EEAS bears the costs related to any of the staff seconded by it, including travel expenses to and from the place of deployment, salaries, medical coverage and allowances other than applicable daily allowances.
45Moreover, Article 7(2) of Decision 2012/392 provides that the Member State, Union institution or the EEAS respectively are responsible for answering any claims linked to the secondment from or concerning the member of staff seconded, and for bringing any action against that person.
46In the first place, however, it follows from the case-law relating to provisions governing the activity of other missions covered by the common foreign and security policy (CFSP) and drafted in terms similar, or even identical, to those of Decision 2012/392 that, since staff members seconded by the Member States and those seconded by the EU institutions are subject to the same rules so far as concerns the performance of their duties at theatre level, the EU judicature does have jurisdiction to review acts of staff management relating to staff members seconded by the Member States the purpose of which is to meet the needs of that mission at theatre level (see, to that effect, judgment of 19 July 2016, H v Council and Others, C‑455/14 P, EU:C:2016:569, paragraphs 50 and 55).
47Any other interpretation would, in particular, have the consequence that, where a single act of staff management relating to field operations concerns both staff members seconded by the Member States and staff members seconded by the EU institutions, the decision rendered with regard to the former would be liable to be irreconcilable with that rendered by the EU judicature with regard to the latter (see, to that effect, judgment of 19 July 2016, H v Council and Others, C‑455/14 P, EU:C:2016:569, paragraph 57).
48Consequently, the General Court and, in the event of an appeal, the Court of Justice, do have jurisdiction to review such acts. As regards the review of the legality of those acts, that jurisdiction stems from Article 263 TFEU, and as regards actions for non-contractual liability, that jurisdiction stems from Article 268 TFEU, read in conjunction with the second paragraph of Article 340 TFEU, taking into account Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) (judgment of 19 July 2016, H v Council and Others, C‑455/14 P, EU:C:2016:569, paragraph 58).
49In the second place, it should be noted that, by submitting the form of order referred to in paragraph 38 above to the General Court, the applicant raises the question of the legality of acts of staff management relating to operations at theatre level, and not questions relating to the secondment, within the meaning of Article 7(2) of Decision 2012/392.
50It is clear from the third claim for compensation and the form of order submitted by the applicant that the latter criticises the Head of Mission for having adopted decisions concerning him, while he was seconded to the Mission and serving in theatre, which could amount to psychological harassment contrary to the provisions of the Charter guaranteeing the right to health and the right to dignity of workers. In addition, he also accuses the Mission’s COC, and not the Italian authorities, of breaches of the right to good administration and the duty to have regard for the welfare of officials when dealing with the reports of psychological harassment he made during his period of assignment in the field.
51Furthermore, it is clear from the case-law that the General Court considered that it had jurisdiction to rule on similar disputes arising from a national staff member seconded to a CFSP mission and an international staff member of the Mission recruited on a contractual basis, without this being precluded, in the latter case, by a clause in one of the recruitment contracts conferring jurisdiction on the courts of a Member State (judgments of 12 April 2018, PY v EUCAP Sahel Niger, T‑763/16, EU:T:2018:181, and of 18 November 2020, H v Council, T‑271/10 RENV II, EU:T:2020:548).
52In the third place, the arguments put forward by the Mission are not such as to call into question the General Court’s jurisdiction to rule on the present dispute.
53First, the Mission cannot properly rely on the solution adopted by the General Court in the order of 23 April 2015, Chatzianagnostou v Council and Others (T‑383/13, not published, EU:T:2015:246), since that order, which did not give rise to an appeal, predates the delivery of the judgment of 19 July 2016, H v Council and Others, (C‑455/14 P, EU:C:2016:569), and the case-law referred to in paragraph 51 above. Thus, the solution adopted by the General Court in the abovementioned order cannot be regarded as reflecting the current state of the law.
54Second, it appears from the judgment of the Tribunale di Roma (District Court, Rome) of 19 October 2020 that the dispute brought by the applicant before that court concerned the calculation of the salaries and basic allowances paid to him by the Italian Government during his period of secondment to the Mission. Thus, that dispute, the subject matter of which was different from that of the present action, did not concern the legality of acts of management of the Mission or its liability when adopting such acts, and therefore has no bearing on the jurisdiction of the General Court to rule on the present action.
55Accordingly, the plea of lack of jurisdiction raised by the Mission is unfounded and must be dismissed.
The pleas of inadmissibility
56The Mission raises, in essence, five pleas of inadmissibility, alleging, first, that the acts which the Mission is alleged to have committed are not attributable to it; second, that the application is out of time; third, that a five-year or four-year limitation period applies; fourth, that the third claim for compensation is incomplete; and fifth, that no plea is relied on in support of the claims for annulment.
57In addition, since the General Court raised the question of the admissibility of the claim for annulment of its own motion, in the context of the measures of organisation of procedure, that question must be examined first.
Admissibility of the claim for annulment
58It is settled case-law that an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party that brought it. The interest in bringing proceedings is an essential and fundamental prerequisite for any legal proceedings. By contrast, there is no interest in bringing proceedings when the favourable outcome of an action could not, in any event, give the applicant satisfaction (see judgment of 6 July 2023, Julien v Council, C‑285/22 P, not published, EU:C:2023:551, paragraph 47 and the case-law cited).
59Furthermore, it is for the applicant to prove its interest in bringing proceedings. In particular, in order for an action seeking annulment of an act, submitted by a natural or legal person, to be admissible, the applicant must justify in a relevant manner its interest in the annulment of that act (see, to that effect, judgment of 20 December 2017, Binca Seafoods v Commission, C‑268/16 P, EU:C:2017:1001, paragraph 45 and the case-law cited).
60Thus, in the absence of such justification, this question relating to the admissibility of the action constitutes a public policy issue which must be raised by the General Court of its own motion (see judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 65 and the case-law cited).
61Moreover, according to equally settled case-law, an action for damages under the second paragraph of Article 340 TFEU was introduced as an autonomous form of action, with a particular purpose to fulfil within the system of actions and subject to conditions on its use dictated by its specific purpose (see, to that effect, judgment of 25 March 2021, Carvalho and Others v Parliament and Council, C‑565/19 P, not published, EU:C:2021:252, paragraph 101 and the case-law cited).
62Indeed, an action for damages differs from an action for annulment in that it seeks not the withdrawal, repeal or amendment of a measure adversely affecting a person, but compensation for damage caused by an EU institution, organ or body (see, to that effect, judgments of 24 October 1973, Merkur-Außenhandel v Commission, 43/72, EU:C:1973:108, paragraph 4, and of 1 February 2023, Klymenko v Council, T‑470/21, not published, EU:T:2023:26, paragraph 58 and the case-law cited).
63However, submissions seeking either annulment of the refusal of an institution, organ or body of the European Union to recognise a right to compensation which an applicant also claims under Articles 268 and 340 TFEU, or seeking that the General Court find the obligation of the institution, organ or body in question to accept the existence of such a right, seek a declaration that the institution, organ or body in question is liable to compensation and must be dismissed as inadmissible, since the applicant does not, in principle, demonstrate an interest in submitting such a claim in addition to its claim for compensation (see, to that effect and by analogy, judgment of 13 June 1972, Compagnie d’approvisionnement, de transport et de crédit and Grands Moulins de Paris v Commission, 9/71 and 11/71, EU:C:1972:52, paragraphs 9 to 11; see also, by analogy, judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 42 and the case-law cited).
64In the present case, it is common ground that the applicant seeks from the Court, in addition to compensation for the material and non-material damage he attributes to the Mission, the annulment of the decision rejecting his third claim for compensation, the aim of which was to obtain, on an amicable basis, compensation for that damage.
65However, in response to a measure of organisation of procedure by which the General Court invited the parties to take a position on the applicant’s interest in seeking the annulment of the decision of 28 April 2022 by which the Mission rejected his third claim for compensation, the applicant replied that, by his claim for annulment, he was not seeking a benefit other than that which he would obtain if his claim for damages was otherwise upheld.
66Thus, it must be noted that the applicant did not demonstrate an interest in seeking, in addition to his claim for damages, the annulment of the Mission’s decision rejecting his third claim for compensation. Accordingly, the claim for annulment must be rejected as inadmissible, without there being any need to examine either the fourth plea of inadmissibility or the fifth, which relate specifically to that claim.
The first plea of inadmissibility, alleging that the acts which the Mission is alleged to have committed are not attributable to it
67The Mission submits that it cannot be held responsible for dealing with the reports made by the applicant from 28 March 2017, since those reports were sent to another authority, namely the COC. In that regard, it relies on the provisions of Article 9(c) and Article 11 of the Code of Conduct and Discipline for EU Civilian CSDP Missions (‘the Code of Conduct’).
68Similarly, the Mission states that the applicant cannot blame it for having to bring legal proceedings against the EEAS to access the report of 29 July 2017, since the Mission is neither the author nor the recipient of that report and did not control access to it.
69The applicant contests the merits of the Mission’s allegations.
70In that regard, it is settled case-law that an action seeking reparation for damage caused by the conduct of an EU institution or body must be directed against that institution or body (see, to that effect, judgment of 23 March 2004, Ombudsman v Lamberts, C‑234/02 P, EU:C:2004:174, paragraph 67, and order of 15 November 2017, Pilla v Commission and EACEA, T‑784/16, not published, EU:T:2017:806, paragraph 70).
71Thus, the question of the identification of the institution or body responsible for representing the European Union in an action for non-contractual liability, based on Article 268 TFEU and the second paragraph of Article 340 TFEU, falls within the scope of the assessment of the admissibility of that action (see, to that effect, order of 2 February 2015, Gascogne Sack Deutschland and Gascogne v European Union, T‑577/14, not published, EU:T:2015:80, paragraph 22 and the case-law cited).
72However, in the first place, it is common ground that the breaches which the applicant claims amount to psychological harassment and which are the subject of the first plea in support of his claim for damages are associated, according to his written submissions, with certain decisions adopted by the Head of Mission and his deputy, and by the head of the HR department acting under their responsibility.
73Specifically, the applicant complains, first, of having been excluded by the Head of Mission from weekly political meetings between the Head of Mission and the Head of the European Union Delegation to Niger (‘the Delegation’); second, of having received from the Head of Mission a first written warning on 17 July 2017, less than an hour after the report of the same day; third, of having received from the HR department, on 27 July 2017 – in other words, the day after the mediator’s departure – a request that he complete the performance evaluation form with a view to extending his secondment in April 2018; and, fourth, of having received from the head of the HR department, on the same day, an updated annual leave record following a request from that department for him to account for days of unauthorised absence.
74However, Article 6(1) of Decision 2012/392, as it stood at the time, provided that the Head of Mission was responsible for the Mission at theatre level and exercised command and control of it. Article 6(1a) of that decision stated that the Head of Mission may delegate management tasks related to staff to staff members of the Mission under his overall responsibility. Lastly, Article 6(2) of that decision stated that the Head of Mission exercises command and control over personnel, teams and units from contributing States.
75Thus, the acts listed in paragraph 73 above, which the applicant alleges that the Mission carried out in the first plea relied on in support of the claim for damages, relate to the exercise, by the Head of Mission, of the powers he holds under Decision 2012/392, and therefore to the performance by the Mission of its mandate, for which the Mission must be held responsible under Article 13(4) of that decision.
76Furthermore, the Mission has not established, or even alleged, that the acts described in this first plea amount to serious misconduct by the Head of Mission, for which only the latter is responsible under Article 13(4) of Decision 2012/392.
77In those circumstances, the first plea of inadmissibility must be rejected as unfounded as regards the first plea in support of the claim for damages.
78In the second place, under the second plea relied on in support of the claim for damages, the applicant contends that several breaches which he alleges were committed not only by the Head of Mission, but also by the COC, amount to infringements of the right to good administration and the Mission’s duty to have regard for the welfare of officials.
79Specifically, the applicant complains, first, that the Head of Mission and the COC failed to deal with his complaints and reports within a reasonable time; second, that he was not informed of the findings and recommendation contained in the report of 29 July 2017; and third, that the COC failed to act on that recommendation.
80In that regard, it should be noted, first, that Article 4(1) of Decision 2012/392 provided that the Mission, as a crisis management operation, had a unified chain of command, and that Article 5(1) of that decision designated the Director of the EEAS CPCC as the Mission’s COC. Thus, Article 5(2) of that decision provided that the COC exercised command and control of the Mission at the strategic level, and Article 5(3) provided that it was to ensure, with regard to the conduct of operations, the proper and effective implementation of the Council’s decisions as well as the decisions of the Political and Security Committee (PSC), including by issuing instructions at the strategic level as required to the Head of Mission and providing him with advice and technical support.
81It follows from those provisions that they do not preclude the adoption by the COC of acts of staff management necessary for the execution of the Mission’s mandate at theatre level (see, to that effect and by analogy, judgment of 4 December 2019, H v Council, C‑413/18 P, not published, EU:C:2019:1044, paragraphs 69 to 71).
82Second, it follows from the provisions of the Code of Conduct, adopted by the Council Decision of 18 July 2016, that the COC is empowered to adopt acts of staff management necessary for the execution of the Mission’s mandate at theatre level.
83In that respect, it is clear from Article 6(3) of the Code of Conduct, which, under the terms of Article 1(1)(a) thereof, applies equally to all members of civilian CSDP missions of the European Union, including members seconded by Member States, that any report relating to a possible breach by the Head of Mission must be addressed to the COC.
84In addition, it also follows from Article 9 of the Code of Conduct that the authority responsible for acting on a possible breach by the Head of Mission is the COC exercising command and control of the Mission under the political control and strategic direction of the PSC and overall authority of the High Representative. Under Article 11 of that code, in such a case, the COC may close the file without further action, deal with it as a management issue without recourse to a formal disciplinary procedure, or commence a preliminary or disciplinary investigation.
85Lastly, Article 10 of the Code of Conduct sets out the conditions under which the COC may request his deputy to irrevocably take over the authority from the Head of Mission in a specific case.
86Thus, the breaches listed in paragraph 79 above, which the applicant attributes to the Mission under the second plea, relate to the exercise, by the COC, of its powers under Decision 2012/392 and the Code of Conduct, and therefore to the execution by the Mission of its mandate, for which the Mission must be held responsible in accordance with Article 13(4) of that decision.
87Consequently, the applicant correctly directs his action for compensation against the Mission on account of the breaches described in paragraph 79 above, which he attributes to the COC. It follows that the first plea of inadmissibility must also be dismissed as unfounded as regards the second plea and that, therefore, this plea of inadmissibility must be dismissed in its entirety.
The second plea of inadmissibility, alleging that the application was out of time
88The Mission submits that the decision of 10 April 2018 is an administrative decision which adversely affects a person within the meaning of Article 263 TFEU. As that decision was not contested by the applicant within the period of two months from its notification, or on the occasion of the notification, on 23 July 2020, of the report of 29 July 2017, the applicant is precluded from seeking to establish the liability of the Mission on the ground that that decision was unlawful.
89The Mission also argues that the applicant has not set out the reasons why he did not bring an action for annulment against the first and second written warnings.
90The applicant disputes the Mission’s arguments.
91In that regard, it follows from the case-law referred to in paragraph 61 above, relating to the autonomy of the action for damages, that the possible inadmissibility of the application for annulment of a decision causing damage does not automatically render the claim for compensation of that damage inadmissible (see, to that effect, judgment of 25 March 2021, Carvalho and Others v Parliament and Council, C‑565/19 P, not published, EU:C:2021:252, paragraph 101 and the case-law cited).
92However, although a party may take action by means of a claim for compensation without being obliged by any provision of law to seek the annulment of the illegal measure which causes him damage, he may not in that way circumvent the inadmissibility of an application which concerns the same instance of illegality and which has the same financial end in view (see judgment of 25 March 2021, Carvalho and Others v Parliament and Council, C‑565/19 P, not published, EU:C:2021:252, paragraph 102 and the case-law cited).
93Thus, an action for damages must be declared inadmissible where it is actually aimed at securing the repeal or amendment of an individual decision which has become final and it would, if upheld, have the effect of nullifying in whole or in part the legal effects of that decision. That is the case if an applicant seeks, by means of a claim for damages, to obtain the same result as he would have obtained had he been successful in an action for annulment which he failed to commence in due time (see, to that effect, judgment of 25 March 2021, Carvalho and Others v Parliament and Council, C‑565/19 P, not published, EU:C:2021:252, paragraph 103 and the case-law cited).
94Similarly, a claim for compensation which is formulated as an injunction and which is intended not to obtain damages for harm attributable to an unlawful act or an omission, but to amend the acts at issue, must be dismissed as inadmissible (see, to that effect, judgment of 25 March 2021, Carvalho and Others v Parliament and Council, C‑565/19 P, not published, EU:C:2021:252, paragraph 105 and the case-law cited).
95In the present case, the action for liability brought by the applicant seeks compensation for the damage caused by the breaches of the Head of Mission and the COC, which are listed in paragraphs 73 and 79 above, respectively, and some of which are likely to be classified as decisions adversely affecting a person, on the grounds that such breaches amount to, on the one hand, psychological harassment prohibited by the provisions of the Charter and, on the other hand, infringements of the duty to have regard for the welfare of officials and the right to good administration.
96Such an action does not seek the withdrawal, repeal or amendment of any decisions that may have been taken by the Head of Mission and the COC and which have become final, but, rather, compensation for damage attributable to the Mission owing to the adoption of those decisions. In particular, it does not appear from the applicant’s written submissions that he seeks compensation in kind, whereby the Mission would have to commence a preliminary or disciplinary investigation against the Head of Mission and his deputy, which would be tantamount to seeking the annulment of the decision of 10 April 2018. It follows that the fact that that individual decision had become final cannot preclude the admissibility of the appeal.
97Lastly, the autonomy of the action for damages referred to in paragraphs 61 and 91 above also excused the applicant from having to set out the reasons why he did not bring an action for annulment against the first and second written warnings.
98Consequently, the second plea of inadmissibility must be rejected as unfounded.
The third plea of inadmissibility, alleging a five-year or four-year limitation period
99The Mission argues that the applicant brought an action against it five years after the occurrence of the facts in question, since it was only in February 2022 that he submitted his claim for compensation. It also maintains that the applicant cannot rely, four years later, on the report of 29 July 2017.
100The applicant disputes the Mission’s arguments by objecting that the action complies with the provisions of the first paragraph of Article 46 of the Statute of the Court of Justice of the European Union.
101In that regard, it should be recalled that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court in accordance with the first paragraph of Article 53 of the Statute, and Article 76(d) of the Rules of Procedure of the General Court, all applications must indicate the subject matter of the proceedings, the form of order sought and a summary of the pleas in law relied on. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the General Court to rule on the action, if necessary without any other supporting information (see order of 7 September 2022, Rosca v Commission, C‑802/21 P, not published, EU:C:2022:677, paragraph 4 and the case-law cited).
102In particular, it is therefore necessary for the essential points of law and of fact on which a case is based to be indicated coherently and intelligibly in the application itself (judgment of 3 June 2021, Hungary v Parliament, C‑650/18, EU:C:2021:426, paragraph 78).
103Thus, the EU judicature is not required to respond to the arguments of a party which are not sufficiently clear and precise, in that they have not been expanded upon or accompanied by a specific line of argument intended to support them (see judgment of 18 November 2021, Greece v Commission, C‑107/20 P, not published, EU:C:2021:937, paragraph 76 and the case-law cited).
104In addition, the precision requirement under Article 21 of the Statute of the Court of Justice of the European Union and Article 76 of the Rules of Procedure is also imposed on the defendant by analogy when it raises a plea of inadmissibility, since such a requirement has no other purpose than to allow the opposing party to prepare its defence and the court to exercise its power of review, particularly when the defendant argues that the action is inadmissible since it is time-barred.
105It follows from settled case-law that, unlike procedural time limits, compliance with the limitation period is not absolute and may not be raised by a Court of the European Union of its own motion but must be raised by the party affected with a view to extinguishing the action for damages (see, to that effect, judgments of 8 November 2012, Evropaïki Dynamiki v Commission, C‑469/11 P, EU:C:2012:705, paragraph 51 and the case-law cited, and of 5 September 2019, European Union v Guardian Europe and Guardian Europe v European Union, C‑447/17 P and C‑479/17 P, EU:C:2019:672, paragraph 99 and the case-law cited).
106In the present case, first, it is apparent from the documents before the Court that, although the Mission stated that the present action was brought after five years, it did not specify the legal basis for that plea of inadmissibility or invoke Article 46 of the Statute of the Court of Justice of the European Union, according to which proceedings against the European Union in matters arising from non-contractual liability are barred after a period of five years from the occurrence of the event giving rise thereto.
107Second, it is clear from the case file that the Mission also referred to a four-year period, distinct from that provided for by Article 46 of the Statute of the Court of Justice of the European Union, which would prevent the applicant from being able to rely on the report of 29 July 2017, without invoking specific provisions in support of that allegation.
108Third, even if the Mission had intended to invoke the five-year limitation period provided for in Article 46 of the Statute of the Court of Justice of the European Union, it did not indicate the event giving rise to the applicant’s claim in the present action or the starting point of the limitation period, and nor did it set out the legal and factual reasons why it considers that claim to be time-barred.
109In those circumstances, it must be held that the plea of inadmissibility raised by the Mission and based on a five-year or four-year limitation period is not accompanied by sufficient details to assess its merits.
110Consequently, the third plea of inadmissibility must be rejected as insufficiently precise, and therefore as inadmissible.
The merits of the claim for damages
111In support of his claim for damages, the applicant relies, in essence, on four pleas in law, the first alleging a violation of Articles 1 and 31 of the Charter and Article 12a(3) of the Staff Regulations, in that he was the victim of psychological harassment by the Head of Mission and his deputy; the second, a breach of the duty to have regard for the welfare of officials and the right to good administration; the third, the existence of actual and certain damage; and the fourth, the existence of a direct link between the violations alleged in the first and second pleas and the damage alleged in the third plea.
112Before examining the applicant’s arguments, it is necessary to explain the conditions in which the Mission could be held liable in respect of a national staff member on secondment to it.
The requirements for the Mission’s liability to be incurred
113It should be recalled that, according to settled case-law, in order for the non-contractual liability of the European Union to be capable of being incurred in a given case, it is necessary, among other conditions, for the person seeking compensation for the loss or harm which he or she considers to have suffered as a result of conduct or an act of the European Union to establish the existence of a breach of a rule of law intended to confer rights on individuals (see judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 145 and the case-law cited).
114Furthermore, that breach must, in principle, be sufficiently serious, a requirement which itself depends on the discretion enjoyed by the EU institution, body, office or agency which allegedly acted in breach of this rule and on whether that institution, body, office or agency has manifestly and gravely disregarded the limits set on its discretion, in view, in particular, of the degree of clarity and precision of that rule, of the difficulties of interpretation or application which may ensue therefrom as well as the complexity of the situation to be settled (see, to that effect, judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 146 and the case-law cited).
115Nevertheless, it follows from settled case-law that, in the light of the greater liability of the European Union where it acts as employer, a mere finding of unlawfulness against the appointing authority (‘the AIPN’) or the authority empowered to conclude contracts of employment (‘the AHCC’), as the case may be, is sufficient to satisfy the first of the three conditions necessary to incur the liability of the European Union for damage caused to its officials and servants due to the infringement of the law governing the European Union civil service, and there is consequently no need to consider whether it is a ‘sufficiently serious’ breach of a rule of law intended to confer rights on individuals (see, to that effect, judgment of 10 June 2020, AL v Commission, T‑83/19, not published, EU:T:2020:254, paragraphs 66 and 67).
116Indeed, proceedings in civil service cases under Article 270 TFEU and Articles 90 and 91 of the Staff Regulations, including those seeking compensation for damage caused to an official or other member of staff, are subject to specific rules in comparison with those arising from the general principles governing the non-contractual liability of the European Union under Article 268 and the second paragraph of Article 340 TFEU. Thus, unlike any other individual, an official or other member of EU staff is connected to the institution, body, office or agency to which he or she belongs by a legal relationship of employment involving a balance of specific reciprocal rights and obligations, which is reflected in the duty of that institution, body, office or agency to have regard for the welfare of the person concerned (see, to that effect, judgment of 14 December 2022, SU v EIOPA, T‑296/21, EU:T:2022:808, paragraph 73 and the case-law cited).
117However, as indicated in paragraph 46 above, national staff members seconded to the Mission by the Member States, although not governed by the Staff Regulations, are nevertheless subject to the same rules applicable to staff members seconded by the institutions of the European Union and whose situation is governed by the Staff Regulations, as regards the performance of their duties at theatre level.
118Consequently, the finding of illegality is sufficient to regard the first of the three conditions necessary for the liability of the European Union to be incurred in respect of damages caused to a national staff member seconded to the Mission in the course of the performance of his duties at theatre level as having been met (see, by analogy, judgment of 18 November 2020, H v Council, T‑271/10 RENV II, EU:T:2020:548, paragraph 104).
119In those circumstances, it is for the General Court to examine each of the infringements relied on by the applicant in support of the first and second pleas in law raised in the application, in order to ascertain whether they are established, without it being necessary to examine whether they are sufficiently serious.
The first plea, alleging infringement of Articles 1 and 31 of the Charter and Article 12a of the Staff Regulations
120The applicant submits that the four breaches listed in paragraph 73 above, which were noted in the report of 29 July 2017 and which, for the purposes of the present judgment, must be considered as the four parts of the first plea, amount to psychological harassment which he claims to have suffered and which is prohibited by Articles 1 and 31 of the Charter and Article 12a(3) of the Staff Regulations, which apply by analogy.
121The Mission disputes the applicant’s allegations.
122Before examining the four parts referred to in paragraph 120 above and assessing them in context, it is necessary, first, to assess whether the applicant can properly rely on Article 12a(3) of the Staff Regulations; second, to recall the definition of psychological harassment and the standard of proof required in that regard; third, to recall the conditions under which the employing authority must assist the official or staff member who claims to be a victim of psychological harassment; and, fourth, to determine the level of review available to the General Court in the present case.
–The applicability of Article 12a(3) of the Staff Regulations to the dispute
123It should be recalled that seconded national staff members or experts who are occasionally employed by an institution, body, office or agency of the European Union are not covered by the Staff Regulations (see, to that effect, judgment of 15 April 2010, Gualtieri v Commission, C‑485/08 P, EU:C:2010:188, paragraph 83 and the case-law cited).
124Consequently, the provisions of the Staff Regulations relating to psychological harassment and the functional protection of officials and contract or temporary staff of the European Union are not directly applicable to the applicant.
125However, staff members seconded to the Mission by the EU institutions, whose status is governed by the Staff Regulations, and those seconded by Member States must, pursuant to Decision 2012/392, be subject to the same rules so far as concerns the performance of their duties at theatre level. According to the principle of equal treatment, the General Court is required to apply to the applicant’s situation, by analogy, the provisions of the Staff Regulations relating to psychological harassment and the functional protection of officials and temporary or contract staff, as well as the case-law delivered on the basis of those provisions (see, by analogy, judgment of 18 November 2020, H v Council, T‑271/10 RENV II, EU:T:2020:548, paragraph 44 and the case-law cited).
126The principle of equal treatment, enshrined in Article 20 of the Charter, is a general principle of EU law which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 14 July 2022, Commission v VW and Others, C‑116/21 P to C‑118/21 P, C‑138/21 P and C‑139/21 P, EU:C:2022:557, paragraph 95 and the case-law cited).
127The requirement that situations must be comparable, for the purpose of determining whether there is a breach of the principle of equal treatment, must be assessed in the light of all the elements that characterise those situations and, in particular, in the light of the subject matter and purpose of the act that makes the distinction in question, while the principles and objectives of the field to which the act relates must also be taken into account. In so far as the situations are not comparable, a difference in treatment of the situations concerned does not infringe equality before the law as enshrined in Article 20 of the Charter (see judgment of 14 July 2022, Commission v VW and Others, C‑116/21 P to C‑118/21 P, C‑138/21 P and C‑139/21 P, EU:C:2022:557, paragraph 96 and the case-law cited).
128Thus, while it is true that staff members seconded to the Mission by Member States are not governed by the Staff Regulations, unlike staff members seconded by the institutions, this difference in situation cannot objectively justify a circumstance where the former, when they perform their duties at theatre level and are then placed in a situation comparable to that of the latter, do not benefit from the same level and the same rules of protection against psychological harassment.
129Consequently, the applicant can properly rely on Article 12a of the Staff Regulations, in addition to Articles 1 and 31 of the Charter.
–The definition of psychological harassment and the standard of proof required
130In the first place, it should be recalled that Article 1 and Article 31(1) of the Charter provide, respectively, that human dignity is inviolable and must be respected and protected, and that every worker has the right to working conditions which respect his or her health, safety and dignity.
131In addition, Article 12a of the Staff Regulations provides that all officials must refrain from any form of psychological or sexual harassment.
132First, the concept of ‘psychological harassment’ is defined, in Article 12a(3) of the Staff Regulations, as ‘improper conduct’, 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’. Second, in order to fall under that definition of ‘psychological harassment’, 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 (see judgment of 2 June 2022, EM v Parliament, C‑299/21 P, not published, EU:C:2022:429, paragraph 102 and the case-law cited).
133However, 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 or her conduct, to discredit the victim or deliberately impair the latter’s working conditions. It is sufficient that such improper conduct, provided that it was intentional, led objectively to such consequences (see judgment of 20 October 2021, ZU v Commission, T‑671/18 and T‑140/19, not published, EU:T:2021:715, paragraph 57 and the case-law cited).
134In the second place, as the conduct in question must, under Article 12a(3) of the Staff Regulations, be improper, 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 (see judgment of 20 October 2021, ZU v Commission, T‑671/18 and T‑140/19, not published, EU:T:2021:715, paragraph 58 and the case-law cited).
135In the third place, psychological harassment may, by definition, be the outcome of a set of different acts which, considered in isolation, would not necessarily constitute per se psychological harassment but which, viewed as a whole and in context, including because of their build-up over time, could be regarded as such. That is why, when examining whether the acts alleged by the applicant constitute psychological harassment, those facts should be examined both individually and jointly as part of the general working environment created by the behaviour of one member of staff towards another (see judgment of 20 October 2021, ZU v Commission, T‑671/18 and T‑140/19, not published, EU:T:2021:715, paragraph 59 and the case-law cited).
136In the fourth place, any decision that was adopted during the period in which a person claims to have been a victim of psychological harassment, and the legality of which has not been contested, as such, is a factual element that can constitute evidence of harassment to be taken into account, without it being necessary to carry out a review of its legality and without the expiry of the periods for bringing proceedings preventing the court from finding the existence of harassment. Thus, it is for the court to assess whether a decision as a factual element can be considered evidence of psychological harassment, taking into account the entire relevant factual context (see, to that effect, judgment of 30 June 2021, FD v Joint undertaking Fusion for Energy, T‑641/19, not published, EU:T:2021:388, paragraph 44).
–The duty of assistance of the employing institution, body, office or agency in the event of allegations of psychological harassment
137It is settled case-law that Article 24 of the Staff Regulations was designed to protect EU officials against harassment or degrading treatment of any kind, in particular by their immediate superiors or colleagues (see judgment of 9 December 2020, GV v Commission, T‑705/19, not published, EU:T:2020:590, paragraph 76 and the case-law cited).
138Thus, where a request for assistance within the meaning of Article 24 of the Staff Regulations is made to the AIPN or the AHCC, pursuant to Article 90(1) of those regulations, that authority must, by virtue of its 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 the AIPN or the AHCC provide prima facie evidence that the conduct of which he or she claims to have been the victim actually took place. In the presence of such evidence, it is for the institution, body, office or agency in question to take appropriate measures, in particular by having an administrative enquiry carried out, in order to establish the facts giving rise to the complaint, in collaboration with the person making the complaint, and, in the light of the results of the enquiry to adopt the necessary measures, such as the opening of disciplinary proceedings, against the person concerned when the administration concludes, at the end of the administrative investigation, that psychological harassment has occurred (judgments of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 80, and of 14 July 2021, AI v ECDC, T‑65/19, EU:T:2021:454, paragraph 64).
139In particular, in cases of allegations of psychological harassment, the duty to provide assistance includes the duty of the administration to examine seriously, expeditiously and in total confidentiality, the request for assistance in which such harassment is alleged and to inform the complainant of the action to be taken in respect of that complaint (judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 81).
140Lastly, when a plea alleging infringement of Article 12a of the Staff Regulations is raised before it, the General Court must examine whether the institution, body, office or agency concerned committed an error of assessment of the facts having regard to the definition of harassment in that provision, and not a manifest error of assessment of those facts (see judgment of 9 December 2020, GV v Commission, T‑705/19, not published, EU:T:2020:590, paragraph 81 and the case-law cited).
141In particular, the merits of the decision rejecting a request for assistance without an administrative investigation having been opened must be assessed by the court in the light of the evidence brought to the attention of the institution, body, office or agency concerned, including by the person who made a request for assistance (see, to that effect, judgment of 9 December 2020, GV v Commission, T‑705/19, not published, EU:T:2020:590, paragraph 82 and the case-law cited).
–The level of review of the General Court in the present case
142In order to determine the level of review applicable in the present case, it is for the General Court to assess whether the report of 29 July 2017 is equivalent to the outcome of an administrative investigation within the meaning of the case-law referred to in paragraphs 138 and 141 above, which would have sought to establish the facts behind the reports of 28 March and 17 July 2017.
143Indeed, were this not the case, it would be for the Court, in accordance with the provisions and principles recalled in paragraphs 130 to 141 above, to assess, when examining the relevant parts, whether the four breaches alleged by the applicant against the Head of Mission and his deputy constitute not a case of psychological harassment, but indicia of such harassment, which would have justified the opening of an administrative investigation.
144In that regard, it is clear from the decision of 10 April 2018 that the report of 29 July 2017 was drawn up by a staff member of the EEAS CPCC pursuant to Article 11(1)(b) of the Code of Conduct, which empowers the COC, in the event of a report involving the Head of Mission, to deal with it as a management issue, without recourse to a formal disciplinary procedure, and to subject it to mediation procedures, if appropriate.
145Thus, it appears that the report of 29 July 2017 was drawn up with a view to reporting an attempt at mediation, and not to establish, in the context of the preliminary or disciplinary investigation provided for in Article 11(1)(c) and (d) of the Code of Conduct, the merits of the allegations of psychological harassment contained in the reports of 28 March and 17 July 2017.
146That interpretation is corroborated by the fact that, in his report of 29 July 2017, the mediator did not expressly take a position on the question as to whether the facts alleged by the applicant against the Head of Mission and his deputy amounted to harassment or constituted evidence of harassment.
147Admittedly, it can be inferred from the conclusion of the report of 29 July 2017 that the mediator implicitly held that certain facts alleged by the applicant against the Mission, particularly those which are the subject of the four parts relied on in support of the first plea, constituted evidence of psychological harassment.
148Indeed, in his conclusion, the mediator proposes a measure to alleviate the situation, namely the temporary assignment of the applicant to Brussels (Belgium) after the summer break, referring expressly to national legislation on harassment, as well as to the rules applicable to EU institutions providing for the possibility of an informal phase before the launch of the formal procedure, and on the ground that, in the present case, the conditions were conducive to such an informal phase.
149However, the mediator’s personal assessment contained in the report of 29 July 2017 was not adopted by the Mission.
150In particular, it should be noted that, by the decision of 10 April 2018, which was adopted after the applicant’s secondment to the Mission was terminated, the COC informed him that the reports of 28 March and 17 July 2017 were to be dealt with as a management issue, in accordance with Article 11(1)(b) of the Code of Conduct, without opening a preliminary or disciplinary investigation or initiating a formal disciplinary procedure against the Head of Mission and his deputy.
151In doing so, the Mission thus considered the allegations of psychological harassment contained in the reports of 28 March and 17 July 2017 to be unfounded or, at the very least, insufficiently substantiated to constitute evidence justifying the opening of a preliminary or disciplinary investigation.
152Therefore, since the Mission, by the decision of 10 April 2018, decided not to launch an administrative investigation to ascertain whether the applicant’s allegations were well founded and not to take a position on the possibility that the breaches alleged by the applicant against the Head of Mission and his deputy amounted to psychological harassment, such a decision is tantamount to rejecting a request for assistance without opening an administrative investigation. In accordance with the case-law referred to in paragraph 141 above, the General Court is required to assess the merits of such a decision in the light of the evidence that the applicant brought to the Mission’s attention.
–The first part, relating to the applicant’s exclusion from weekly political meetings between the Head of Mission and the Head of Delegation
153In support of this part, the applicant submits, in essence, that his exclusion from the weekly political meetings between the Head of Mission and the Head of Delegation (‘the staff meetings’) constituted evidence of psychological harassment that justified the opening of an administrative investigation.
154In that regard, an email of 26 May 2017 shows that, from that date, the Head of Mission requested that the applicant no longer attend staff meetings.
155Thus, it is clear from the report of 29 July 2017 that the applicant considered that his exclusion from staff meetings had the consequence of depriving him of an important source of information enabling him to perform his duties as political advisor, of preventing him from liaising with the Delegation to prepare reports on political issues and of damaging his reputation.
156However, it also emerges from that report that, first, the Head of Mission’s decision of 26 May 2017 referred to in paragraph 154 above stemmed from his dissatisfaction with the applicant, owing to his failure to follow up on those weekly meetings, and second, those meetings were politically sensitive and the Head of Mission had reason to believe that information from those meetings had been disclosed to the Italian authorities.
157Admittedly, in his report of 29 July 2017, the mediator held that the applicant’s exclusion from the staff meetings and the decision to invite him only to weekly management meetings were not viable, given his role as political advisor and coordinator, and that it would have been better if the applicant had continued to attend the staff meetings occasionally.
158Nevertheless, as regards the first ground for the applicant’s exclusion from the staff meetings, it is also apparent from an email sent by the Head of Mission to the applicant on 6 April 2017 that the applicant made no contribution at those weekly meetings.
159First, it should be recalled that Article 6(2) and (3) of Decision 2012/392 provides that the Head of Mission exercises command and control over personnel, teams and units from contributing States and issues instructions to all Mission staff, for the effective conduct of the Mission in theatre, assuming its coordination and day-to-day management.
160In addition, it follows from the case-law that the administration has a wide discretion in relation to its internal organisation (see, to that effect, judgment of 29 October 1981, Arning v Commission, 125/80, EU:C:1981:248, paragraph 19).
161However, the applicant produces no evidence to refute the Head of Mission’s allegations that he made no contribution at the staff meetings, such that, given the wide discretion available to the Head of Mission and in view of the need for effectiveness referred to in Article 6 of Decision 2012/392, it does not appear that his decision to excuse the applicant from attending those meetings was excessive or open to criticism in the light of the interests of the service.
162Second, it is also apparent from Article 6(7) of Decision 2012/392 that, without prejudice to the chain of command, the Head of Mission receives local political guidance from the Head of Delegation.
163Consequently, in so far as the purpose of the staff meetings was for the Head of Delegation to provide local political guidance, it does not appear that the applicant’s presence at those meetings was essential.
164Third, it is not demonstrated, or even alleged, that the staff meetings were the only channel of communication between the Mission and the Delegation on political issues, such that it does not appear that the applicant’s exclusion from those meetings was an obstacle to the performance of his duties, in so far as they involved liaising with his counterparts in the Delegation on political issues.
165Consequently, and without it being necessary to examine the second ground for the decision of 26 May 2017 referred to in paragraph 156 above, alleging failure to respect the confidentiality of those meetings and the disclosure by the applicant of certain information to the Italian authorities, the decision to exclude him from the staff meetings, considered in isolation, cannot be construed as evidence of psychological harassment of the applicant, such that the first part must be rejected as unfounded.
–The second part, relating to the receipt of the first written warning by the applicant on 17 July 2017, less than an hour after the report of the same day
166In this part, the applicant submits, in essence, that the notification of the first written warning less than an hour after the report of 17 July 2017 was submitted constitutes evidence of psychological harassment.
167As a preliminary point, it should be recalled that Article 7(1) of the Code of Conduct provides that Mission members who have reported a possible breach should not suffer any adverse effects as a result of or as a reaction to this reporting, provided they have acted reasonably and in good faith.
168In the present case, it appears from the parties’ statements that on 17 July 2017, the Head of Mission sent the applicant a written warning for having disrespected him at a meeting held on 10 April 2017 at which the Mission was hosting a politician from a Member State. The Head of Mission criticised the applicant for having clearly expressed, through his body language, his annoyance at having to take notes at the meeting, even though he was supposed to do so, and for having made inappropriate gestures and facial expressions whenever the Head of Mission spoke.
169The first written warning was sent to the applicant on 17 July 2017, less than an hour after the applicant had sent the COC a report accusing the Head of Mission and his deputy of psychological harassment.
170First, it is clear from Article 11 of the Code of Conduct that, on the basis of a report concerning a possible breach, the decision of the responsible authority on the action to be taken on that breach, which may lead the authority to deal with it as a management issue, must be taken within 10 working days.
171In the present case, since the first written warning did not follow a formal disciplinary procedure and it is clear from its title that it is of a ‘management’ nature, it must be concluded – in the absence of any other legal basis put forward by the Mission – that it was adopted in accordance with Article 11(b) of the Code of Conduct.
172Second, although the report of 29 July 2017 states that the Head of Mission explained to the mediator that the delay in sending the first written warning was due to instructions received from the EEAS CPCC, which had caused him to postpone sending it, the Mission has provided no evidence of that correspondence which might corroborate that explanation. Furthermore, it has not demonstrated, or even alleged, that the CPCC or the COC approved the Head of Mission’s decision to send the applicant the first written warning on 17 July 2017.
173Therefore, even if the period of 10 working days set by Article 11(b) of the Code of Conduct were not a strict time limit, the fact remains that the Mission has not explained why the first written warning was sent on 17 July 2017, more than three months after the event giving rise to the warning, and less than an hour after the applicant submitted a report calling into question the Head of Mission’s conduct.
174Third, it is true that the applicant submitted the report of 17 July 2017 by email sent only to the COC and his deputy. Therefore, the Mission submits that the Head of Mission and his deputy were unaware of the report when it was made.
175However, although the General Court cannot impose on the Mission the burden of proving its allegations, since that would require it to produce evidence of the negative, it also cannot order the applicant to establish whether and, if applicable, when exactly the COC informed the Head of Mission of the existence and possibly the content of the report of 17 July 2017, since there is no reason to believe that the applicant would have that information.
176Thus, in the absence of evidence as to the exact date on which the COC informed the Head of Mission of the existence of the applicant’s report of 17 July 2017 and the precise nature of that information, it should be noted, first of all, that the Mission did not invoke any provisions that would have prevented that information from being sent to the Head of Mission or his deputy.
177Moreover, the Mission did not inform the General Court of the exact date on which the COC or the CPCC informed the Head of Mission of the mediator’s visit, even though it is reasonable to presume that, when that information was sent, the Head of Mission had knowledge of the existence and possibly the content of the report of 17 July 2017.
178It follows from the foregoing that, in the absence of an explanation from the Mission justifying the delay in the formulation of the first written warning, having regard to both the time limit provided for by Article 11 of the Code of Conduct and the amount of time that had elapsed since the events occurred, and in the absence of an indication as to the exact date on which the Head of Mission became aware of the report of 17 July 2017, the notification of the warning less than an hour after that report was submitted could be considered excessive or open to criticism.
179Indeed, it could be interpreted as an attempt to penalise the applicant for that report, contrary to the requirements set out in Article 7 of the Code of Conduct, and thus, considered in isolation, constitutes evidence of psychological harassment.
180Therefore, the second part of this plea in law should be upheld.
–The third part, relating to the request received by the applicant on 27 July 2017 that he complete the performance evaluation form with a view to extending his secondment
181In this part, the applicant submits, in essence, that the timing chosen by the HR department to send a reminder of the performance evaluation procedure, on 27 July 2017, the day after the mediator’s departure, constitutes evidence of psychological harassment.
182In particular, it is apparent from the report of 29 July 2017 that the applicant did not consider the performance evaluation procedure to be required under the Mission’s staff management rules and that the sole purpose of initiating that procedure in relation to him was to oust him from the service.
183In that regard, the case file shows that, on 6 April 2017, the Head of Mission decided to initiate a procedure with a view to preparing a performance evaluation report (PER) for the applicant and that the applicant objected, essentially on the ground that it was not formally provided for in the Mission’s revised operational plan (‘the OPLAN’) of 13 July 2022.
184On 27 July 2017, a member of staff from the HR department sent the applicant the draft PER to be completed, with a new deadline of 4 August 2017. However, the applicant again refused to complete his PER on the ground that this new procedure was premature, given that his secondment was due to end on 14 April 2018. The head of the HR department explained to the applicant that the procedure applied to all Mission staff whose secondments were due to expire on or before 30 April 2018, and that if he did not cooperate, his post would be declared vacant.
185Finally, on 23 August 2017, the head of the HR department sent a reminder to the applicant, asking him again to submit his completed PER. The applicant once again rejected that request on the ground that he was not seeking the extension of his secondment from April 2018.
186As a preliminary point, it should be noted that Article 7 of Annex IX to the OPLAN, relating to human resources, makes the extension of the secondment of a seconded staff member subject to the agreement of the Head of Mission, on the basis of a request to that effect from the staff member concerned submitted three months before the end of the secondment period and a favourable PER from his or her direct line manager.
187In addition, Article 10 of Annex IX to the OPLAN provides that all members of the Mission must regularly undergo a PER, in particular before they leave the Mission permanently.
188Lastly, the Mission relied on a document entitled ‘Guidelines for performance evaluations within CSDP missions’, which states that the PER procedure is routinely carried out before the staff member leaves the Mission, is strongly recommended at the end of each secondment or contract period, is advisable at the end of a six-month period in the case of the initial one-year deployment of the staff member, and is possible whenever it is deemed necessary, in the event of a new line manager or a change in the staff member’s performance, in consultation with the HR department.
189In the first place, it should be noted that, although the possibility of evaluating a Mission staff member in the event of a new line manager or a change in the staff member’s performance is not expressly provided for in Annex IX to the OPLAN, that document does not appear to preclude such a practice, since Article 10 of the annex does not list all of the situations in which the Mission’s members must be evaluated.
190In addition, the applicant did not rely on any other provision that would have precluded the Head of Mission from evaluating his performance.
191On the contrary, it follows from Article 6 of Decision 2012/392 and the case-law referred to in paragraph 160 above that the Head of Mission has wide discretion in deciding to prepare a PER for one of his subordinates if he considers that procedure to be necessary for effective conduct at theatre level.
192Accordingly, it cannot be held that, in principle, the decision by the Head of Mission of 6 April 2017 to evaluate the applicant’s performance was excessive or open to criticism in the light of the interests of the service, especially since it appears from the hearing that the applicant had not undergone a performance evaluation since June 2016.
193In the second place, however, it appears from the HR department’s new request of 27 July 2017 for the applicant to complete his PER that that request did not refer to the Head of Mission’s decision of 6 April 2017 referred to in paragraphs 183 and 192 above, but, rather, the need to make a list of applications to extend secondments and to anticipate possible job vacancies for all staff members seconded to the Mission until 30 April 2018, with a view to advertising the posts of staff members whose secondments would end on that date.
194Although it is not disputed that that decision did not solely concern the applicant, the fact remains that the Mission did not state the reasons why the HR department initiated that administrative procedure on 27 July 2017, when according to Article 7 of Annex IX to the OPLAN, relating to human resources, the evaluation procedure for staff members applying to extend their secondments to the Mission had to be carried out when they submitted their applications to that effect, and at the latest three months before the end of the secondment – in the applicant’s case, on 14 January 2018.
195In the third place, it should be noted that the HR department made the request referred to in paragraphs 184 and 193 above the day after the mediator’s departure.
196Yet it is reasonable to assume that the reports of 28 March and 17 July 2017 and the COC’s decision of 20 July 2017 to dispatch a mediator from 25 July 2017 required the Mission, pending the mediator’s findings, to exercise the necessary care towards the applicant imposed, in particular, by the principle of good administration.
197Indeed, apart from the fact that that duty to exercise necessary care is inherent in the principle of good administration, enshrined in Article 41 of the Charter (see, to that effect, judgment of 16 June 2022, SGL Carbon and Others v Commission, C‑65/21 P and C‑73/21 P to C‑75/21 P, EU:C:2022:470, paragraph 30 and the case-law cited), and in particular, in the duty to act diligently, it was also imposed in the present case by Article 7 of the Code of Conduct, which prohibits the Mission from penalising Mission members who have reported a possible breach, as a result of or as a reaction to this reporting.
198Thus, it is clear from the report of 29 July 2017 that the mediator considered that the approach of the HR department in sending a reminder of the applicant’s evaluation procedure on 27 July 2017, immediately after his on-site evaluation, was misguided and premature by comparison with standard practice.
199In that context, it may be concluded that, given the particular circumstances in which it took place, the decision to send a reminder of the applicant’s evaluation procedure the day after the mediator’s departure, without awaiting his findings, and more than nine months before the end of the applicant’s secondment, is excessive or open to criticism.
200Indeed, such a reminder may be interpreted as seeking to oust the applicant from the Mission at the end of his secondment without awaiting the mediator’s proposals, such that that decision, considered in isolation, constitutes evidence of psychological harassment.
201Consequently, the third part of the plea must be upheld.
–The fourth part, relating to the applicant’s receipt of his updated annual leave record following a request from the HR department that he account for days of unauthorised absence
202In this part, the applicant complains about the reaction of the head of the HR department when he returned later than planned from a period of annual leave in June 2017.
203It appears from an email dated 28 July 2017 sent to the COC that the applicant supplemented the report of 17 July 2017 with an exchange of emails between him and the head of the HR department concerning his return from annual leave in June 2017, later than originally planned.
204Specifically, it appears from those emails that the applicant received a letter asking him to state the reasons why he had returned from annual leave on Monday, 3 July 2017 rather than on Thursday, 29 June 2017, the date originally set. In an email dated 24 July 2017, the applicant invoked ‘personal reasons’ and said that he had asked colleagues to notify the Mission, since he had been unable to do so himself. By email of 27 July 2017, the head of the HR department sent the applicant an ‘updated annual leave record’, mentioning the days of 29 and 30 June 2017 and copying in the Head of Mission and his deputy. The applicant replied that he had not requested that document and that he wanted to know why the sender had copied in other recipients, since he was under the impression that the document was strictly confidential.
205In the first place, the HR department’s request for an explanation of the unauthorised leave was dated 24 July 2017 and was sent to the applicant on the same day – in other words, the day before the mediator’s arrival.
206However, it is not apparent from the case file that the applicant disclosed the request for an explanation of the unauthorised leave to the mediator during the bilateral meetings he had with the mediator on 25 and 26 July 2019, despite having the opportunity to do so.
207Consequently, it could be inferred from this that the applicant did not consider the request for an explanation of the unauthorised leave of 24 July 2017 to constitute evidence of psychological harassment towards him, but that he did consider that to be the case when he was sent the updated annual leave record of 27 July 2017.
208In the second place, it should be noted that the applicant returned late from annual leave in May 2017, and did so again in August 2017, contrary to the internal rules on annual leave requests.
209In the third place, it also should be noted that, without prejudice to the duty to act diligently and, in particular, the duty to exercise necessary care referred to in paragraph 197 above, pending the mediator’s findings, neither Articles 1 and 31 of the Charter, nor Article 12a of the Staff Regulations, nor the provisions of Annex IX to the OPLAN and of the Code of Conduct required the Mission to exempt the applicant from the Mission’s HR management procedures on the sole ground that he had reported the Head of Mission and his deputy for psychological harassment.
210Thus, the reports of 28 March and 17 July 2017 could not preclude the HR department, under the control of the Head of Mission and his deputy, from sending the applicant, on 27 July 2017, a form containing his updated annual leave record, following his unauthorised absence on 29 and 30 June 2017, when such a document is, in principle, necessary to know the exact leave entitlement of the staff member concerned for the rest of the year.
211Considered in isolation, therefore, the fact that the HR department sent the applicant an updated annual leave record on 27 July 2017 cannot be considered excessive or open to criticism, or as constituting evidence of psychological harassment, such that the fourth part must be rejected as unfounded.
–The assessment, as a whole and in context, of the conduct alleged against the Head of Mission and his deputy by the applicant
212In the light of the case-law referred to in paragraph 135 above, it is for the Court to assess, as a whole and in context, the conduct alleged against the Head of Mission and his deputy by the applicant.
213In that regard, it appears from an email sent by the Head of Mission to the applicant on 6 April 2017 that the Head of Mission had expressed a wish to the Italian authorities and to the COC that the applicant be repatriated due to a loss of trust following alleged violations of professional secrecy on his part.
214Under Article 8 of Annex IX to the OPLAN, the Head of Mission is permitted to terminate a staff member’s secondment prematurely, notably for disciplinary reasons, in accordance with the Code of Conduct, or owing to the failure of the staff member concerned to meet basic Mission requirements.
215However, it does not appear from the case file that the Mission requested the Italian authorities to terminate the applicant’s secondment prematurely or that it instigated the procedure provided for in Article 8 of Annex IX to the OPLAN.
216Indeed, in response to a question during the hearing, the Mission explained that the procedure for early termination of the secondment provided for in Article 8 of Annex IX to the OPLAN represented an administrative burden and required a committee to be set up to assess the situation of the staff member concerned, as well as an explanation of the reasons why the Head of Mission was considering the early termination of his secondment.
217Thus, the general working environment in which the facts relied on by the applicant took place was characterised by the intention of the Head of Mission – according to the email of 6 April 2017 referred to in paragraph 213 above – to remove the applicant from his post without implementing the procedure provided for in Article 8 of Annex IX to the OPLAN.
218On the one hand, however, the existence of such a context could corroborate the applicant’s view of the facts alleged against the Head of Mission and his deputy in the second and third parts, which the Court determined as constituting evidence of psychological harassment. On the other hand, the facts alleged by the applicant against the Head of Mission and his deputy in the first and fourth parts, which the Court determined as not constituting evidence of psychological harassment when considered in isolation, were themselves likely to appear as such in that context, especially since all those events took place within a short period of time.
219Accordingly, the applicant’s submission is well founded in that, by failing to launch an administrative investigation following his allegations of psychological harassment, the Mission was in breach of Article 1 and Article 31(1) of the Charter and Article 12a of the Staff Regulations. Therefore, the first plea in law must be upheld in its entirety.
The second plea, alleging infringement of the right to good administration and of the duty to have regard for the welfare of officials
220In this plea, the applicant submits that the three alleged breaches listed in paragraph 79 above, which, for the purposes of the present judgment, must be regarded as three parts in support of the present plea, constitute infringements of the right to good administration and of the duty to have regard for the welfare of officials.
221The Mission disputes the merits of the applicant’s allegations.
222Before examining those three parts, the Court must assess whether the applicant can properly rely on an infringement of the duty to have regard for the welfare of officials and, if so, whether the content of that duty differs from the right to good administration.
–The applicability to the dispute of the duty to have regard for the welfare of officials
223It should be recalled that, according to settled case-law, the administration’s duty to have regard for the welfare of its staff reflects the balance of the reciprocal rights and obligations established by the Staff Regulations in the relationship between civil servants and their administration. Together with the principle of sound administration, that balance implies in particular that when the administration takes a decision concerning the situation of an official, it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the official concerned (see order of 31 March 2022, Barata v Parliament, C‑305/21 P, not published, EU:C:2022:253, paragraphs 7 and 8 (position of the Advocate General, paragraph 14 and the case-law cited)).
224Nevertheless, as is clear from paragraphs 125 to 129 above, the principle of equal treatment requires that certain provisions of the Staff Regulations and of the case-law relating to the EU civil service be applied by analogy to the case of national staff members on secondment to a body or agency such as the Mission, where such staff members are placed in a situation comparable to that of staff members subject to the Staff Regulations and where the difference in situation between the two cannot objectively justify that the former, when performing their duties at theatre level, do not enjoy the same level and the same rules of protection as the latter.
225This applies, in particular, to the duty to have regard for the welfare of officials that the employing EU institution, body, office or agency has towards its officials and servants (see, to that effect, judgment of 18 November 2020, H v Council, T‑271/10 RENV II, EU:T:2020:548, paragraph 105 and the case-law cited).
226Consequently, the applicant can properly rely on the duty to have regard for the welfare of officials.
–The scope of the duty to have regard for the welfare of officials and the right to good administration
227In the first part, the applicant complains, in essence, that the Mission did not deal with his complaints of 8 March 2017 and his reports of 28 March and 17 July 2017 within a reasonable time; in the second part, that he was not aware of the findings and recommendation contained in the report of 29 July 2017; and in the third part, that the Mission did not act on the mediator’s recommendations.
228In that regard, Article 41(1) of the Charter states that every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the European Union. Furthermore, Article 41(2)(a) of the Charter provides that the right to good administration includes, inter alia, the right of every person to be heard, before any individual measure which would affect him or her adversely is taken.
229By contrast, the duty to have regard for the welfare of officials, as defined by the case-law, does not mention the obligation for the employing EU institution or body to rule on the situation or request of one of its officials within a reasonable time, or after having heard him or her, nor the obligation to follow the recommendations made by a mediator appointed following a complaint of psychological harassment.
230In addition, it does not follow from the case-law that there is a direct or explicit link between, on the one hand, the duty to have regard for the welfare of officials and, on the other hand, the obligation to examine a request, including a complaint of psychological harassment, within a reasonable time, the right to be heard, and the potential obligation to follow the recommendations issued by a mediator appointed following a complaint of psychological harassment.
231Admittedly, it follows from the case-law that the duty to have regard for the welfare of officials corresponds to the need for greater liability towards the EU institutions, bodies, offices or agencies where they act as employers (see, to that effect, judgment of 14 December 2022, SU v EIOPA, T‑296/21, EU:T:2022:808, paragraph 73 and the case-law cited).
232Nevertheless, in the present case, the applicant did not specify the nature of the obligations that would have been incumbent on the Mission by virtue of the duty to have regard for the welfare of officials and which are separate from those arising from the right to good administration.
233Accordingly, it must be held that the present plea, in so far as it is based on a possible infringement of the duty to have regard for the welfare of officials, is not supported by sufficient detail for its merits to be assessed and, to that extent, must be rejected as insufficiently precise and inadmissible under Article 76(d) of the Rules of Procedure.
–The first part, alleging failure to deal with the complaints of 8 March 2017 and the reports of 28 March and 17 July 2017 within a reasonable time
234In this part, the applicant submits, in essence, that the Mission did not deal with his complaints of 8 March 2017 and his reports of 28 March and 17 July 2017 within a reasonable time, despite the fact that they were submitted from March 2017, that the mediator submitted his report on 29 July 2017 and that the Mission did not respond to the applicant until 10 April 2018.
235In the first place, it should be recalled that on 8 March 2017, the applicant sent two complaints to the Head of Mission, including one for psychological harassment by a colleague, before filing a report with the COC on 28 March 2017 so that it could investigate the two complaints.
236However, the first complaint of 8 March 2017 for psychological harassment was dismissed by the Deputy Head of Mission, which the applicant was informed of in an email on 24 March 2017.
237Thus, it cannot be held that the first complaint was not investigated within a reasonable time.
238As regards the second complaint of 8 March 2017, it appears from the documents produced by the Mission that on 20 March 2017, the Head of Mission asked the COC to apply Article 10 of the Code of Conduct so that the Deputy COC could irrevocably take over the investigation of the complaint. The COC agreed to this, and the applicant was informed on 30 March 2017. The Deputy COC issued a preliminary investigation report on 24 April 2017. By email of 15 May 2017, he informed the Head of Mission that, in accordance with the Code of Conduct, it had been decided that the complaint would be dealt with as a management issue, without recourse to a formal disciplinary procedure.
239In that email, the Deputy COC reminded the Head of Mission of the need for all members of the Mission to observe the applicable security arrangements and asked him to ensure that that requirement was met.
240The applicant was informed by telephone on 29 May 2017 of the outcome of the second complaint of 8 March 2017. Therefore, it cannot be considered that the time taken to deal with the complaint, which was just over two months, was unreasonable.
241In the second place, the applicant submitted his first report on 28 March 2017 so that the COC could investigate the two complaints of 8 March 2017.
242As regards the second complaint of 8 March 2017, it is apparent from paragraph 238 above that it was being investigated on 28 March 2017 and that the Deputy COC did indeed investigate it on 15 May 2017.
243Therefore, there was no reason for the COC to interfere in the handling of that complaint, especially since the Code of Conduct does not confer that power on the COC for reports referred to the Head of Mission or his deputy.
244Lastly, as regards the first complaint of psychological harassment of 8 March 2017, it does not follow from the provisions of the Code of Conduct that the COC is able to amend the decision of the Head of Mission or his deputy to dismiss the complaint of a staff member relating to a possible breach of the security rules applicable to the Mission.
245Consequently, the report of 28 March 2017 referring the first complaint of 8 March 2017 to the COC could not have the effect of opening a new investigation period.
246In the third place, as regards the applicant’s report to the COC of 17 July 2017, alleging psychological harassment by the Head of Mission and his deputy, it should be noted that the applicant was informed on 20 July 2017 of the mediator’s visit the following week and that the mediator issued his report on 29 July 2017.
247In particular, the mediator’s findings included a recommendation not to open a formal investigation at that stage, as provided for by the Code of Conduct, in view of the option provided for in Article 11(b) of that code which allows the Mission to deal with a report as a management issue without recourse to a formal disciplinary procedure and to subject it to mediation procedures, if appropriate.
248It should be noted that the first investigation into the report of psychological harassment of 17 July 2017 was completed on 29 July 2017, and that the investigation was carried out within a reasonable time.
249Consequently, the first part of the present plea must be dismissed as unfounded.
–The second part, alleging failure to inform the applicant of the findings and recommendation contained in the report of 29 July 2017
250In this part, the applicant alleges that the Mission did not inform him of the findings and recommendation contained in the report of 29 July 2017.
251In that regard, it follows from the case-law that, in the context of a procedure investigating a request for assistance or a complaint of psychological harassment, the alleged victim of such harassment may rely on the right to be heard by virtue of the principle of good administration (see, to that effect, judgment of 4 June 2020, EEAS v De Loecker, C‑187/19 P, EU:C:2020:444, paragraph 66 and the case-law cited).
252In particular, Article 41(2) of the Charter provides that the right to good administration includes the right of every person to be heard before any individual measure which would affect him or her adversely is taken, the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy, and the obligation of the administration to give reasons for its decisions.
253More specifically, the right to be heard guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely (see judgment of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraph 58 and the case-law cited).
254Thus, it is settled case-law that, in a dispute concerning harassment involving officials or other members of staff of the European Union, the person who lodged a complaint of harassment is entitled, in order to be able effectively to submit his observations to the institution concerned before it takes a decision, to receive a summary, at the very least, of the statements made by the person accused of harassment and the various witnesses heard during the investigation procedure and that such a summary must be disclosed while respecting, if necessary, the principle of confidentiality (see, to that effect, judgment of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraph 60 and the case-law cited).
255That was the case in so far as the statements had been used in the report which had been submitted to the authority that had taken the decision not to pursue the complaint and included recommendations on the basis of which that authority had made its decision (see, to that effect, judgment of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraph 60 and the case-law cited).
256In order to ensure that witness statements remain confidential and that the objectives of such confidentiality are respected, while ensuring that the official or other member of staff who submitted a request for assistance for psychological harassment is properly heard before a decision adversely affecting him is adopted, certain techniques may be used, such as anonymisation, or even disclosure of the substance of the witness statements in the form of a summary, or the redaction of some of the content of those statements (see, to that effect, judgment of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraph 66 and the case-law cited).
257In the present case, it is not disputed that, although the applicant was interviewed by the mediator during his on-site visit of 25 and 26 July 2017, he was not aware of the content of the statements of the Head of Mission and his deputy, nor of the content of the statements of the other witnesses interviewed by the mediator.
258Nor is it disputed that the applicant was unaware of the recommendation that the mediator intended to make to the COC.
259However, since the COC adopted the decision of 10 April 2018 on the basis of the report of 29 July 2017 and in view of the recommendation contained therein, it should have ensured respect for the applicant’s right to be heard by giving him the opportunity to submit his observations on that report and to provide any additional information before it adopted that decision. Hearing the applicant could have led the COC to draw a different conclusion, namely the decision to open an administrative investigation (see, to that effect, judgment of 4 June 2020, EEAS v De Loecker, C‑187/19 P, EU:C:2020:444, paragraph 73).
260Furthermore, if the applicant had been informed of the mediator’s recommendation contained in the report of 29 July 2017, after noting the lack of implementation of that recommendation, he would have been able to rely on it before the Mission, in particular to challenge the decision refusing to open a preliminary or disciplinary investigation, which he only became aware of on 10 April 2018.
261Consequently, the applicant is entitled to claim that the Mission was in breach of the right to good administration by failing to inform him of the findings and recommendation contained in the report of 29 July 2017, at the very least in the form of an anonymised summary, so that he might have the opportunity to submit observations on the content of that document before the COC decided on the action to be taken on those findings and on that recommendation relating to the reports of 28 March and 17 July 2017.
262The Mission maintains that the Head of Mission did not receive the report of 29 July 2017, so was unable to send that report to the applicant.
263However, assuming that were true, that circumstance does not affect the Mission’s liability for the breaches described in paragraph 261 above, since it follows from paragraphs 78 to 87 above that the decisions taken by the COC in respect of the applicant, in accordance with the Code of Conduct, could constitute grounds for liability on the part of the Mission.
264In those circumstances, the second part of the second plea must be upheld.
–The third part, alleging failure to implement the mediator’s recommendation
265In this part, the applicant alleges that the Mission failed to implement the mediator’s recommendation for a cooling-off period, in particular by assigning him to Brussels.
266In that regard, it is clear, on examination of the first plea, that the applicant is entitled to maintain that the breaches alleged against the Head of Mission and his deputy in the four parts of that plea constituted evidence of psychological harassment which justified the opening of an administrative investigation with a view to substantiating them.
267However, it follows from the case-law referred to in paragraph 138 above that when a request for assistance is made to the employing authority, 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, not only respond with the rapidity and solicitude required by the circumstances of the case so as to ascertain the facts, but also take appropriate action where the official or other staff member who is seeking its protection provides prima facie evidence that the attacks of which he or she claims to have been the victim actually took place.
268The duty to provide assistance constitutes a variation of the duty to have regard for the welfare of officials resulting from the right to good administration and which requires the institutions, bodies, offices and agencies of the European Union to act with care and caution by examining all the relevant facts of the individual case (see, to that effect, judgment of 16 June 2022, SGL Carbon and Others v Commission, C‑65/21 P and C‑73/21 P to C‑75/21 P, EU:C:2022:470, paragraphs 30 and 31 and the case-law cited).
269In the present case, since it is clear from the examination of the first plea that the applicant had provided prima facie evidence of the alleged psychological harassment, it was for the Mission, on the one hand, to commence a preliminary or disciplinary investigation, in accordance with the Code of Conduct, with a view to establishing whether that harassment took place and, on the other hand, to protect the applicant if necessary by giving him a temporary assignment to remove him from the direct authority of the Head of Mission and his deputy, in the absence of a more appropriate measure to ensure that temporary protection.
270In that respect, the Mission is not justified in maintaining that it could not, for practical reasons, have temporarily assigned the applicant to Brussels, since it is clear both from Article 6(3) of Decision 2012/392 and from its organisational chart that it has a ‘support element’ in that city.
271In those circumstances, the third part of the second plea must also be upheld.…
Operative part
On those grounds,THE GENERAL COURT (Ninth Chamber)hereby:
1.Finds that the form of order seeking the annulment of the decision of 28 April 2022 by which EUCAP Sahel Niger rejected Mr Marco Montanari’s claim for compensation dated 4 February 2022 is inadmissible;
2.Orders EUCAP Sahel Niger to pay Mr Montanari the sum of EUR 6000;
3.Orders EUCAP Sahel Niger to pay the costs;
4.Dismisses the action as to the remainder.
Delivered in open court in Luxembourg on 17 July 2024.
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