Contents
Judgment of the Court (Fifth Chamber)15 January 2026note(Appeal — Civil service — European Anti-Fraud Office (OLAF) — Allegations of psychological harassment during periods of sick leave — Rejection of the request for assistance and of the claim for compensation — Opening of an invalidity procedure — Action for annulment and for damages — Admissibility — Acts open to challenge — Obligation on the part of the General Court of the European Union to state reasons — Contradictory reasoning — Distortion of the facts and evidence)In Case C‑75/24 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 29 January 2024,XH, represented by P. Nowak, adwokat,the other party to the proceedings being:European Commission, represented initially by I. Melo Sampaio and L. Vernier, acting as Agents, and subsequently by L. Vernier, acting as Agent,THE COURT (Fifth Chamber),composed of M.L. Arastey Sahún (Rapporteur), President of the Chamber, J. Passer, E. Regan, D. Gratsias and B. Smulders, Judges,Advocate General: D. Spielmann,Registrar: A. Calot Escobar,having regard to the written procedure,after hearing the Opinion of the Advocate General at the sitting on 22 May 2025,gives the following
Judgment
1By her appeal, XH seeks to have set aside the judgment of the General Court of the European Union of 22 November 2023, XH v Commission (T‑613/21, ‘the judgment under appeal’, EU:T:2023:739), by which the General Court dismissed her action seeking, first, the annulment of Decision D/374/20 of the European Commission of 4 December 2020 rejecting her request for assistance (‘the decision rejecting the request for assistance’) and of Decision Ares(2021) 3466486 of the Commission of 21 May 2021 concerning the referral of her case to the Invalidity Committee (‘the decision opening the invalidity procedure’), and, second, compensation for the damage she alleged to have sustained.
Legal context
2Article 11a of the Staff Regulations of Officials of the European Union, in the version applicable to the facts of the case (‘the Staff Regulations’), provides:1. An official shall not, in the performance of his duties and save as hereinafter provided, deal with a matter in which, directly or indirectly, he has any personal interest such as to impair his independence, and, in particular, family and financial interests.2. Any official to whom it falls, in the performance of his duties, to deal with a matter referred to above shall immediately inform the Appointing Authority. The Appointing Authority shall take any appropriate measure, and may in particular relieve the official from responsibility in this matter.3. An official may neither keep nor acquire, directly or indirectly, in undertakings which are subject to the authority of the institution to which he belongs or which have dealings with that institution, any interest of such kind or magnitude as might impair his independence in the performance of his duties.’
3Article 12 of the Staff Regulations provides:‘An official shall refrain from any action or behaviour which might reflect adversely upon his position.’
4Article 12a of the Staff Regulations is worded as follows:1. Officials shall refrain from any form of psychological or sexual harassment.2. An official who has been the victim of psychological or sexual harassment shall not suffer any prejudicial effects on the part of the institution. An official who has given evidence on psychological or sexual harassment shall not suffer any prejudicial effects on the part of the institution, provided the official has acted honestly.3. “Psychological harassment” means any improper conduct that takes place over a period, is repetitive or systematic and involves physical behaviour, spoken or written language, gestures or other acts that are intentional and that may undermine the personality, dignity or physical or psychological integrity of any person.4. “Sexual harassment” means conduct relating to sex which is unwanted by the person to whom it is directed and which has the purpose or effect of offending that person or creating an intimidating, hostile, offensive or disturbing environment. Sexual harassment shall be treated as discrimination based on gender.’
5Under Article 21 of the Staff Regulations:‘An official, whatever his rank, shall assist and tender advice to his superiors; he shall be responsible for the performance of the duties assigned to him.An official in charge of any branch of the service shall be responsible to his superiors in respect of the authority conferred on him and for the carrying out of instructions given by him. The responsibility of his subordinates shall in no way release him from his own responsibilities.’
6Article 24 of the Staff Regulations provides:‘The [European] Union shall assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties.It shall jointly and severally compensate the official for damage suffered in such cases, in so far as the official did not either intentionally or through grave negligence cause damage and has been unable to obtain compensation from the person who did cause it.’
7Article 59 of the Staff Regulations is worded as follows:1. An official who provides evidence of being unable to carry out his duties by reason of illness or accident shall be entitled to sick leave.The official concerned shall notify his institution of his incapacity as soon as possible and at the same time state his current address. …The official may at any time be required to undergo a medical examination arranged by the institution. If the examination cannot take place for reasons attributable to the official, his absence shall be considered as unauthorised as from the date that the examination is due to take place.If the finding made in the examination is that the official is able to carry out his duties, his absence shall, subject to the following subparagraph, be regarded as unjustified from the date of the examination.…4. The Appointing Authority may refer to the Invalidity Committee the case of any official whose sick leave totals more than 12 months in any period of three years.…’
8Under Article 60 of the Staff Regulations:‘Except in case of sickness or accident, an official may not be absent without prior permission from his immediate superior. Without prejudice to any disciplinary measures that may apply, any unauthorised absence which is duly established shall be deducted from the annual leave of the official concerned. If he has used up his annual leave, he shall forfeit his remuneration for an equivalent period.If an official wishes to spend sick leave elsewhere than at the place where he is employed he shall obtain prior permission from the appointing authority.’
9Article 90 of the Staff Regulations provides:1. Any person to whom these Staff Regulations apply may submit to the appointing authority, a request that it take a decision relating to him. The authority shall notify the person concerned of its reasoned decision within four months from the date on which the request was made. If at the end of that period no reply to the request has been received, this shall be deemed to constitute an implied decision rejecting it, against which a complaint may be lodged in accordance with the following paragraph.2. Any person to whom these Staff Regulations apply may submit to the appointing authority a complaint against an act affecting him adversely, either where the said authority has taken a decision or where it has failed to adopt a measure prescribed by the Staff Regulations. …’
10Article 7 of Annex II to the Staff Regulations provides:‘The Invalidity Committee shall consist of three doctors:– one appointed by the institution to which the official concerned belongs;– one appointed by the official concerned; and– one appointed by agreement between the first two doctors.Should the official concerned fail to appoint a doctor, the President of the Court of Justice of the European Union shall appoint one.In the event of failure to agree on the appointment of a third doctor within two months of the appointment of the second doctor, the third shall be appointed by the President of the Court of Justice of the European Union at the request of one of the parties concerned.’
Background to the dispute
11The background to the dispute was set out in paragraphs 2 to 34 of the judgment under appeal. For the purposes of the present proceedings, it may be summarised as follows.
12The appellant is an official in the European Anti-Fraud Office (OLAF).
13Until 16 June 2020, she held the post of investigator in the unit formerly designated as Unit A of OLAF. Within that unit, she was handling, as lead investigator, three ongoing cases in particular, namely Cases E, F and G.
14An internal reorganisation of OLAF came into effect on 16 June 2020. Following that reorganisation, and having regard to the preferences expressed by the appellant, she was assigned, as from that date, to a new unit within OLAF, namely Unit B.
15Between 2 and 22 June 2020, the appellant was on sick leave following a medical operation. An extension of that leave was granted for a continuous period from 23 June until 31 October 2020, by way of approval in the Commission’s human resource management information system called ‘Sysper 2’, for the first time on 23 June 2020, in respect of the period from that date until 10 July 2020, for the second time on 14 July 2020, in respect of the period from 11 until 31 July 2020, for the third time on 4 August 2020, in respect of the period from 1 until 31 August 2020, for the fourth time on 1 September 2020, in respect of the period from that date until 30 September 2020, and for the fifth time on 1 October 2020, in respect of the period from that date until 31 October 2020.
16On 2 June 2020, the appellant sent an email to members of Unit A, which contained a summary of Case E. In that email, she stated that she was on sick leave but that, as a matter of precaution in order to avoid delays, she would remain connected and open for any contact concerning those three cases.
17On 8 June 2020, a member of Unit A sent an email to the appellant and the Head of Unit A. That email concerned Cases E, F and G, and contained comments and suggestions for the next stages. The Head of Unit A replied that, given the fact that the appellant was on leave, that member had to consult the future Head of Unit C (‘the Head of Unit C’), in order to find out whether she preferred to close the cases at issue before the reorganisation of 16 June 2020 or to wait for the appellant’s return from sick leave expected to be after that date. That member of Unit A sent an email to the Head of Unit C, copying in the appellant and the Head of Unit A. The appellant replied to that email, stating that she expected that all cases could be closed without delay in the light of OLAF’s reorganisation and her sick leave. Furthermore, she stated that, even though she was on leave, she was open to receiving the final proposals concerning the cases in question so that they could be finalised.
18The appellant sent, on 8 June 2020, an email to a colleague entrusted with the role of ‘confidential counsellor’. In that email, the appellant sent him the exchanges referred to in paragraph 17 above and asked him for advice on her situation.
19On the same day, a secretary from Unit A (‘the secretary of Unit A’) sent the appellant an email concerning the appellant’s change of office owing to OLAF’s internal reorganisation referred to in paragraph 14 above. In that email, the secretary of Unit A asked the appellant whether, in the light of her sick leave until 22 June 2020, she was willing to authorise a third person to move her belongings prior to that date. The appellant replied on the same day that she preferred to take care of that herself.
20On 9 June 2020, the Head of Unit C replied to the emails referred to in paragraph 17 above. In her reply, she stated that, in the light of those circumstances, it seemed to her very difficult to close the cases at issue before 16 June 2020. She stated that she found it realistic to close Case E in mid-July.
21On 23 June 2020, the Head of Unit C sent an email to the appellant in order to discuss the draft final report in Case E. In that email, she asked the appellant to call her if available. On the same day, she sent the appellant an invitation to a video call scheduled for the following day, namely 24 June 2020. The appellant replied to that email on the following day, 24 June, stating that she was still on sick leave and that that invitation coincided with a medical appointment. She added that she would, however, be available the entire day on the following day for a discussion over the phone of the case in question.
22The appellant sent, on 23 June 2020, an email to the confidential counsellor, containing the invitation by the Head of Unit C to the video call. In that email, she explained that she had a scheduled hospital visit to make during her sick leave and that that invitation went beyond her capacity and was against the rules. She asked him to ‘notify [that conduct] as a harassment’.
23On 30 June 2020, the secretary of Unit A sent the appellant a second email asking her whether she had reached a decision concerning her office move.
24On 1 July 2020, the Head of Unit C sent the appellant two emails in which she asked the appellant questions concerning Case E. The appellant replied on 6 July 2020.
25On 1 August 2020, the appellant lodged a request for assistance with the competent appointing authority (‘the appointing authority’), pursuant to Articles 24, 59 and 60 of the Staff Regulations. In her request, the appellant stated, in essence, that the emails that she had received during her sick leave constituted requests from the OLAF hierarchy or staff to work or to go immediately to her office in order to prepare her belongings for the office move, which she considered to be attempts to interrupt or terminate her sick leave.
26On 26 August 2020, the Head of Unit C sent the appellant an email which contained a new draft final report in Case E. In that email, the Head of Unit C asked the appellant, first, whether she approved of its contents and, second, if she could carry out a check with the European Patent Office (EPO). The appellant replied to her that she was still on sick leave. In a second email, the Head of Unit C stated that she had sent her first email for it to be dealt with by the appellant upon her return. The appellant replied on 28 August 2020, stating that she did not think it necessary to wait for her return in order to finalise the reports at issue.
27On 31 August 2020, the Head of Unit C sent an email to the appellant, explaining to her that, given the significant workload of the investigation team in question, she could not transfer the three cases at issue to another lead investigator and that, consequently, she was counting on the appellant to close those cases upon her return from leave, in line with what had been agreed. On the same day, she sent the appellant two more emails which contained, respectively, an amended draft final report in Case F and a new draft final report in Case G. In those two emails, she stated that the appellant had to deal with them only once back from sick leave.
28On 6 September 2020, the appellant replied that her sick leave had been extended and that the cases at issue could be closed without her.
29On 7 September 2020, the appellant signed electronically a declaration of conflict of interest in Case G, in OLAF’s content management software (OCM).
30On 8 September 2020, the Head of Unit C informed the appellant that she had appointed a new investigator, who did not speak the language of the case, in two of the three cases at issue. Furthermore, she referred to a consultation in order to close, without the appellant, the third case, namely Case G. The Head of Unit C asked the appellant to send her the missing information concerning that third case if, in the meantime, she would return from her sick leave.
31On 11 September 2020, the appellant received an email from a colleague from Unit C, congratulating her on her success in a case heard before the General Court.
32On 17 September 2020, the appellant received, from that colleague, another email containing a link to the judgment delivered by the General Court.
33On 18 September 2020, the Head of Unit C sent the appellant an email informing her that she had become aware of the declaration of conflict of interest. Furthermore, in order to allow for a decision on that declaration to be reached, she requested the appellant to provide additional information on the conflict of interest in question. The appellant replied to that request on 20 September 2020.
34On 25 September 2020, the Head of Unit C sent the appellant an email in order to inform her that the appellant was released from her last pending case owing to the conflict of interest in question. She thus concluded that the appellant had no more cases within her unit.
35On 28 October 2020, the Head of Unit HR.AMC.5 of the Commission sent a note to that institution’s medical service requesting the opening of an invalidity procedure against the appellant. That request was based on the fact that, for the period from November 2017 until October 2020, namely a period of 3 years, the combined sick leave taken by the appellant exceeded 12 months.
36On 4 December 2020, the appointing authority adopted a decision rejecting the appellant’s request for assistance referred to in paragraph 25 above.
37On 28 February 2021, the appellant lodged a complaint under Article 90(2) of the Staff Regulations challenging the decision rejecting the request for assistance.
38On 6 May 2021, a video call was organised between, on the one hand, the appellant and, on the other, the Investigation and Disciplinary Office (IDOC) and the HR.E.2 Unit (Appeals and Case Monitoring) of the Commission.
39On 10 May 2021, the appellant was sent a summary of her arguments put forward during that video call.
40On 11 May 2021, the appellant submitted her comments on that summary and sent documents.
41On 21 May 2021, the Director-General of the Directorate-General for Human Resources and Security of the Commission adopted the decision opening the invalidity procedure, by which the appellant’s case was referred to the Invalidity Committee and a doctor was appointed to represent the Commission, in accordance with the provisions of Article 7 of Annex II to the Staff Regulations.
42On 31 May 2021, the appellant lodged a complaint under Article 90(2) of the Staff Regulations challenging the decision opening the invalidity procedure.
43On 2 July 2021, the appointing authority adopted Decision R/138/21, which rejected her complaint against the decision rejecting the request for assistance (‘Decision R/138/21 rejecting the complaint’), on the ground that there was no prima facie evidence supporting the appellant’s claims. Furthermore, the appointing authority rejected the claim for compensation for the damage allegedly sustained.
44On 30 September 2021, the appointing authority adopted Decision R/301/21 rejecting the appellant’s complaint against the decision opening the invalidity procedure (‘Decision R/301/21 rejecting the complaint’), by which it concluded that the complaint lodged by the appellant against that decision was inadmissible.
The action before the General Court and the judgment under appeal
45By application lodged at the Registry of the General Court on 17 September 2021, the appellant brought an action for annulment, first, of the decision rejecting the request for assistance and of Decision R/138/21 rejecting the complaint and, second, of the decision opening the invalidity procedure and of Decision R/301/21 rejecting the complaint. Furthermore, the appellant requested the General Court to order the Commission to pay her the sum of EUR 20000 by way of compensation for the non-material damage she alleged to have sustained and to order the Commission to produce a number of internal documents.
46In support of her claim for annulment of the decision opening the invalidity procedure and of Decision R/301/21 rejecting the complaint, the appellant relied, in essence, on a plea alleging infringement by the Commission of Articles 59 and 90 of the Staff Regulations, read in the light of Articles 12a and 24 of the Staff Regulations. In support of her claims for annulment of the decision rejecting the request for assistance and of Decision R/138/21 rejecting the complaint, the appellant relied on four pleas in law alleging, first, infringement by the Commission of Articles 12a and 24 of the Staff Regulations, of the duty of care, and of Articles 7 and 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), as well as a failure to observe the principle of good administration; second, infringement by that institution of Articles 12a, 24, 59 and 60 of the Staff Regulations; third, infringement by the Commission of Articles 59 and 90 of the Staff Regulations, read in the light of Articles 12a and 24 of the Staff Regulations; and, fourth, infringement by the Commission of Articles 7 and 8 of the Charter.
47By the judgment under appeal, the General Court dismissed, first, the claim for annulment of the decision opening the invalidity procedure as inadmissible and, second, the claim for annulment of the decision rejecting the request for assistance as unfounded.
48Furthermore, the General Court dismissed the appellant’s claim for damages and rejected the measures of inquiry requested by her.
49Consequently, the General Court dismissed the action brought by the appellant in its entirety.
Forms of order sought by the parties to the appeal
50By her appeal, the appellant claims that the Court should:– set aside the judgment under appeal;– annul the decision rejecting the request for assistance and Decision R/138/21 rejecting the complaint;– annul the decision opening the invalidity procedure and Decision R/301/21 rejecting the complaint;– order compensation for the damage sustained;– order the Commission to pay the costs relating to the appeal proceedings and those before the General Court; and– in the event that the judgment under appeal cannot be set aside, refer the case back to the General Court.
51The Commission contends that the Court of Justice should:– dismiss the appeal, and– order the appellant to pay the costs.
The appeal
52In support of her appeal, the appellant relies, in essence, on two grounds of appeal relating, first, to the grounds of the judgment under appeal dismissing the claim for annulment of the decision opening the invalidity procedure and, second, to the grounds of the judgment under appeal in so far as they dismissed the claim for annulment of the decision rejecting the request for assistance.
The first ground of appeal
Arguments of the parties
53The first ground of appeal, which is divided, in essence, into five parts, alleges that the General Court erred in classifying the decision opening the invalidity procedure as a preparatory act and therefore as not being open to challenge before that Court.
54By the first part of the first ground of appeal, the appellant submits that, in accordance with the case-law of the General Court, an act may be classified as ‘preparatory’ only where it has no separate legal effect, whereas acts which produce effects going beyond the procedural framework and substantively altering the rights and obligations of the parties concerned are subject to judicial review by the General Court.
55Consequently, according to the appellant, in paragraphs 47 and 48 of the judgment under appeal, the General Court erred in law in not applying that case-law. If that had been the case, given that the opening by the Commission of the invalidity procedure led to the definitive and irreversible disclosure of data covered by medical secrecy, thus affecting the appellant’s rights, the General Court would necessarily have reached the conclusion that the decision opening the invalidity procedure must be regarded as an act that substantively alters her rights and obligations.
56In the second part of the first ground of appeal, the appellant claims that, by classifying the decision opening the invalidity procedure as a preparatory act, the General Court erred in law, distorted the evidence and, in essence, failed to take account of certain decisive circumstances.
57According to the appellant, first, it is apparent from settled case-law, resulting from the judgment of 18 March 1997, Guérin automobiles v Commission (C‑282/95 P, EU:C:1997:159, paragraph 37), that the Commission’s definitive decision must, in accordance with the principle of good administration, be adopted within a reasonable time. Given that, in the present case, the Commission did not proceed any further with the invalidity procedure, the opening of that procedure no longer served its purpose as a preparatory act.
58The appellant submits, second, and in essence, that, given that the decision opening the invalidity procedure amounts to harassment, that decision should be regarded as an act open to challenge.
59Third, the appellant asserts that, even though the invalidity procedure was intrinsically linked to the appellant’s sick leave, she was not informed of the initiation of the invalidity procedure until the end of May 2021. That severe lack of transparency on the part of the Commission was not taken into account by the General Court in the judgment under appeal.
60Fourth, in the appellant’s submission, Decision R/301/21 rejecting the complaint did not finalise the invalidity procedure concerning the appellant, leaving her in a prolonged state of uncertainty that infringes Articles 90 and 59 of the Staff Regulations.
61Fifth, the appellant claims that final decisions are not the only ones that can produce adverse effects, since the indirect effects of certain acts or actions of an EU institution can have serious consequences for the situation of the person concerned. Consequently, even if the decision opening the invalidity procedure were a preparatory act, it would be open to challenge, because it had a negative effect on the status of the person concerned.
62By the third part of the first ground of appeal, the appellant claims that the General Court failed to take account of the fact that Article 59(4) of the Staff Regulations does not leave any discretion to the Commission in referring a case to the Invalidity Committee. In the present case, according to the appellant, the condition for such a referral laid down in that provision, according to which the combined sick leave of the official in question must exceed 12 months in any period of 3 years, is not satisfied. Therefore, the opening of the invalidity procedure constitutes an act open to challenge, since it is unlawful, or even vitiated by a misuse of powers.
63By the fourth part of the first ground of appeal, the appellant asserts that the General Court distorted the evidence by failing to examine the specific aspects of her situation. According to her, the General Court merely accepted the version of the facts presented by the Commission, without examining the relevant facts, even though the decision to initiate the invalidity procedure is based on a miscalculation of sick leave days, disregarding the appellant’s actual presence in the office.
64In the fifth part of the first ground of appeal, the appellant submits, again in order to establish that the General Court failed to examine the specific aspects of her situation, that the inquiry of the Commission into her health as a result of the decision opening the invalidity procedure and the mishandling by that institution of sensitive medical data amount to an infringement of the rights to respect for private life and to the protection of her data, laid down in Articles 7 and 8 of the Charter, read in conjunction with Articles 59 and 60 of the Staff Regulations.
65The Commission contends that the first ground of appeal is in part inadmissible and in part unfounded.
Findings of the Court
66By her first ground of appeal, which is divided, in essence, into five parts, the appellant criticises paragraphs 47 and 48 of the judgment under appeal.
67In paragraph 47 of the judgment under appeal, the General Court found that, in the case at hand, the decision opening the invalidity procedure had been adopted on the basis of Article 59(4) of the Staff Regulations. According to its own case-law, a decision to refer an applicant’s case to the Invalidity Committee is a preparatory act which is a step in the procedure for retiring an official and it is only in connection with an action brought against the decision taken at the conclusion of that procedure that an applicant may contest the legality of earlier steps which are closely linked to it.
68Applying that case-law to the case at hand, the General Court held, in paragraph 48 of the judgment under appeal, that the decision opening the invalidity procedure was not an act which definitively laid down the Commission’s position, but was an act preparatory to a final decision to be taken upon the conclusion of the invalidity procedure and that, consequently, the decision opening the invalidity procedure did not amount to an act adversely affecting the appellant within the meaning of Article 90(2) of the Staff Regulations.
69In order to assess whether, as the appellant claims, the General Court erred in classifying the decision opening the invalidity procedure as a preparatory act, it must be recalled, as a preliminary point, as the General Court held in paragraph 45 of the judgment under appeal, that it follows from settled case-law that, both in the specific context of proceedings relating to the European civil service and in proceedings generally, only decisions producing binding legal effects capable of affecting the applicant’s interests by bringing about a distinct change in his or her legal position constitute acts adversely affecting that applicant and, consequently, may be challenged as such (see, to that effect, judgment of 25 June 2020, SatCen v KF, C‑14/19 P, EU:C:2020:492, paragraph 69 and the case-law cited).
70As the General Court also recalled in paragraph 46 of the judgment under appeal, in the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, in principle, an act is open to review only if it definitively lays down the position of the institution upon the conclusion of that procedure and not if it is an intermediate measure intended to pave the way for the final decision (judgment of 14 February 1989, Bossi v Commission, 346/87, EU:C:1989:59, paragraph 23, and, see, to that effect, order of 7 April 2005, Van Dyck v Commission, C‑160/04 P, EU:C:2005:207, paragraph 32).
71It is in the light of those principles that the five parts of the first ground of appeal must be examined.
–The first part of the first ground of appeal
72By the first part of the first ground of appeal, the appellant submits that, in paragraphs 47 and 48 of the judgment under appeal, the General Court erred in law by failing to take account of the fact that the opening by the Commission of the invalidity procedure had led to the disclosure of data covered by medical secrecy, thereby affecting her rights, and by considering that the decision opening the invalidity procedure is not an act definitively laying down the Commission’s position with regard to her, but an act preparatory to the final decision to be taken at the end of the invalidity procedure. According to the appellant, an act may be classified as ‘preparatory’ only where it does not give rise to a separate legal effect, whereas acts which produce effects going beyond the procedural framework and substantively altering the rights and obligations of the parties concerned are subject to judicial review by the General Court.
73In that regard, it must, however, be noted that the decision opening the invalidity procedure, by which an institution decides to refer the case of an official to a medical committee, in accordance with Article 59(4) of the Staff Regulations, does not, in itself, have any binding legal effect capable of affecting the interests of the person concerned by bringing about a distinct, and therefore at the very least a definitive, change in that official’s legal position.
74That conclusion cannot be invalidated by the fact that the opening by the Commission of the invalidity procedure is alleged to have subsequently led to the definitive and irreversible disclosure of data covered by medical secrecy.
75Even if that disclosure were to be regarded as being in breach of medical secrecy, that circumstance, which relates to the substance of that disclosure, would not mean that the decision opening the invalidity procedure should be regarded as amounting to an act adversely affecting that official within the meaning of Article 90(2) of the Staff Regulations, since the fact remains that that decision did not, in itself, bring about a distinct, and therefore at the very least a definitive, change in that official’s legal position.
76Accordingly, the General Court did not err in law in holding, in paragraphs 47 and 48 of the judgment under appeal, that the decision opening the invalidity procedure did not amount to an act adversely affecting the appellant within the meaning of Article 90(2) of the Staff Regulations.
77The first part of the first ground of appeal must therefore be rejected as unfounded.
–The second part of the first ground of appeal
78In support of the second part of the first ground of appeal, the appellant claims, first, that the excessive duration of the invalidity procedure meant that the decision opening the invalidity procedure no longer served its purpose as a preparatory act and that, therefore, it should have been regarded, by the General Court, as an act adversely affecting her and therefore as being open to challenge.
79In that regard, it is sufficient to note that, as is apparent from the case-law recalled in paragraph 69 above, the condition, in order for an act to be regarded as adversely affecting an official, is that it must have produced binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his or her legal position.
80The duration of a procedure, even if excessive, cannot have the effect that the act which opened that procedure must be regarded as having brought about a distinct change in that appellant’s legal position.
81In those circumstances, the General Court did not err in law by not taking into account the duration of the Commission’s handling of the case when it examined whether the decision opening the invalidity procedure amounted to an act adversely affecting the appellant within the meaning of Article 90(2) of the Staff Regulations.
82Second, the appellant submits, in essence, that the adoption of the decision opening the invalidity procedure constituted harassment, with the result that, in order to enable her to assert her rights, that decision should have been regarded as adversely affecting her.
83In that regard, it is sufficient to note that, while it is true that it cannot be ruled out that the opening of a procedure may form part of harassment of which the person concerned alleges to be a victim and, consequently, may be relied on as a relevant factual element in the context of a request for assistance or a claim for compensation, that does not mean that the decision opening the invalidity procedure must be regarded as amounting to an act adversely affecting that person. As has been recalled in paragraph 69 above, in order to be classified as an act adversely affecting the person concerned, the decision at issue must have brought about a distinct change in the legal position of its addressee and not be liable to have caused damage to that person.
84Contrary to what the appellant seems to imply, that interpretation of Article 90(2) of the Staff Regulations does not preclude a person who has sustained damage precisely as a result of the adoption of such an act from being able to obtain compensation for that damage. In the case of a preparatory act, the person concerned may, in particular, bring an action against the act that will be adopted at the end of the procedure in question and, on that occasion, seek compensation for the damage resulting from the opening of that procedure.
85The appellant claims, third, that the General Court failed to take account of the fact that she was only belatedly informed of the opening of the invalidity procedure, whereas, fourth, Decision R/301/21 rejecting the complaint left her in a prolonged state of uncertainty, in breach of Articles 90 and 59 of the Staff Regulations.
86Nevertheless, it must be noted that the appellant has not explained why the General Court should have taken those circumstances into account. A mere abstract statement of the grounds in the application does not alone satisfy the requirements laid down in Article 21 of the Statute of the Court of Justice of the European Union and in Article 169 of the Rules of Procedure of the Court of Justice (see, inter alia, judgment of 1 August 2025, PNB Banka v ECB, C‑100/23 P, EU:C:2025:610, paragraph 34).
87Fifth, the appellant submits that, even if the decision opening the invalidity procedure were a preparatory act, that decision should nevertheless be regarded as an act open to challenge, since it has a negative effect on the status of the person concerned.
88That argument, which is in line with the second argument, cannot be accepted since, as has already been recalled in paragraph 83 above, the fact that the adoption of an act is capable of producing negative effects on the status of the person concerned does not necessarily mean that that act has brought about a distinct, that is to say, in particular, a definitive, change in the legal situation of that person.
89Sixth, the appellant claims that the General Court distorted the evidence by classifying that decision as a preparatory act.
90Nevertheless, where an appellant alleges distortion of the evidence by the General Court, he or she must, failing which that assertion will be inadmissible, indicate precisely the evidence alleged to have been distorted by the General Court and demonstrate the errors in the analysis which, in his or her view, resulted in the General Court making that distortion (judgment of 10 September 2024, KS and Others v Council and Others, C‑29/22 P and C‑44/22 P, EU:C:2024:725, paragraph 148).
91In the present case, the appellant has not provided details on the evidence that is concerned by that assertion or on the manner in which the General Court distorted that evidence.
92In those circumstances, the argument alleging distortion of the evidence by the General Court must be rejected as inadmissible.
93The second part of the first ground of appeal must therefore be rejected as in part inadmissible and in part unfounded.
–The third, fourth and fifth parts of the first ground of appeal
94Under the third part of the first ground of appeal, the appellant claims that the Commission could not open the invalidity procedure vis-à-vis her because the cumulative duration of her sick leave did not exceed 12 months in any period of 3 years, as required by Article 59(4) of the Staff Regulations.
95By the fourth part of the first ground of appeal, the appellant claims that the General Court distorted the evidence, since it merely accepted the Commission’s miscalculation of the number of days of sick leave taken by the appellant, without examining her actual presence at work. In the fifth part of the first ground of appeal, the appellant claims, in essence, that the General Court should have found that the Commission had infringed her right to respect for her private life and had failed to comply with the obligation to protect her personal data, guaranteed by Articles 7 and 8 of the Charter.
96In that regard, it must be borne in mind that, as is apparent from paragraphs 67 and 68 above, the General Court held that the decision opening the invalidity procedure did not amount to an act adversely affecting the appellant within the meaning of Article 90(2) of the Staff Regulations. For that reason, in paragraph 49 of the judgment under appeal, the General Court rejected as inadmissible the claim for annulment of that decision.
97In those circumstances, given that the General Court did not examine the substantive legality of that decision, the third, fourth and fifth parts of the first ground of appeal, all of which relate to that legality, must be rejected as ineffective.
The second ground of appeal
Arguments of the parties
98The second ground of appeal is divided, in essence, into 12 parts.
99In the first part of the second ground of appeal, the appellant submits that, in accordance with the case-law of the Court of Justice, the infringement by an institution of a clear legal provision is a matter of public order and must be raised by the General Court of its own motion. According to the appellant, in paragraph 98 of the judgment under appeal, the General Court failed to take due account of that case-law. Had it done so, the General Court would have had to find that the decisions at issue were contrary to Articles 59 and 90 of the Staff Regulations, which, apart from being clear, also set out rules of public order.
100By the second part of the second ground of appeal, the appellant asserts that the General Court failed to refer to the lack of reasons for the decision rejecting the request for assistance, which is contrary to the requirements of transparency and accountability laid down in Articles 59 and 90 of the Staff Regulations, read in conjunction with Articles 41 and 47 of the Charter.
101In the third part of the second ground of appeal, the appellant submits that, in paragraphs 97 and 98 of the judgment under appeal, the General Court erred in its interpretation and application of Article 84(1) of its Rules of Procedure. The General Court rejected the new evidence submitted by the appellant after the reply had been lodged, even though that evidence had not been available at the time the application at first instance or the reply had been lodged. According to the appellant, the General Court’s rejection of that evidence was contrary to Articles 7, 8 and 47 of the Charter and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’).
102In that regard, the appellant further claims that the purpose of the pre-litigation procedure is to enable an amicable settlement of disputes between officials and the administration, and not to limit the scope of judicial review by the Courts of the European Union.
103By the fourth part of the second ground of appeal, the appellant asserts, first, that the Commission was required to refrain from opening the invalidity procedure, since the decision opening that procedure meets the criteria for harassment set out in Article 12a of the Staff Regulations.
104Second, the appellant submits that the conduct of the Head of Unit C, as referred to in paragraphs 107 and 108 of the judgment under appeal, is contrary to Article 12 of the Staff Regulations, which requires officials to refrain from any act which might reflect negatively on their position. Consequently, by not classifying that conduct as psychological harassment, within the meaning of Article 12a of the Staff Regulations, despite that context and the cumulative impact of the actions of that head of unit, the General Court erred in law.
105By the fifth part of the second ground of appeal, the appellant complains that the General Court infringed Article 86 of the Staff Regulations, which necessitates disciplinary action against officials who fail to comply with their obligations, including those outlined in Articles 11a, 12 and 12a of the Staff Regulations. The conduct of the Head of Unit C should have triggered an investigation under those provisions.
106In the sixth part of the second ground of appeal, the appellant submits that the General Court infringed Article 11a of the Staff Regulations, concerning conflict of interest, and Article 59 of the Staff Regulations, relating to sick leave. Failure adequately to address the inappropriate behaviour of the institution concerned may also contravene the right to dignity, the right to respect for private life and the right to data protection, which are enshrined, respectively, in Articles 1, 7 and 8 of the Charter.
107The appellant further claims that, in paragraphs 107 and 108 of the judgment under appeal, the General Court infringed Articles 11 and 21 of the Staff Regulations by finding that the evidence supporting the existence of psychological harassment was insufficient. The fact that the Head of Unit C contacted the appellant about a case, immediately after the declaration of conflict of interest and even though that declaration had not yet been approved, could be seen as inappropriate.
108By the seventh part of the second ground of appeal, the appellant criticises the General Court for having held that the burden of proof of psychological harassment lies with the victim of that act, even though that Court recalled, in paragraphs 82 to 84 of the judgment under appeal, the case-law according to which, for the purpose of examining allegations of harassment, it is necessary to take into account the entire historical context and any precedent incidents.
109According to the appellant, the fact that the General Court highlighted, in paragraphs 78 to 80 of the judgment under appeal, the need to provide prima facie evidence of the alleged harassment runs counter to the duty of the institution concerned to examine all the information available and to protect the officials’ welfare, in accordance with the wording of the judgment of 26 March 2015, CN v Parliament (F‑26/14, EU:F:2015:22).
110By the eighth part of the second ground of appeal, the appellant submits that the General Court erred in law in stating that the possibility had remained open for her not to comply with a request for aid from the Head of Unit C. In that regard, the General Court infringed Article 21 of the Staff Regulations, which provides that the official is required to assist and tender advice to his or her superiors and that he or she is responsible for the performance of the duties assigned to him or her. The appellant states that, at the same time, compliance with that provision would have put her in a situation to infringe Article 11a of the Staff Regulations, which protects an official from dealing with a matter in which he or she has any personal interest.
111In the ninth part of the second ground of appeal, the appellant asserts that the General Court failed to examine, in the judgment under appeal, the Commission’s refusal to grant her request for work flexibility or the repeated requests for extra work out of the line of the assignment, which are contrary to the Commission’s general recommendations on health at work. In that regard, the General Court failed to take account of Articles 59 and 60 of the Staff Regulations.
112The tenth part of the second ground of appeal alleges that the General Court distorted the facts and evidence.
113In the context of that part, the appellant submits that, in paragraph 113 of the judgment under appeal, first, the General Court found that the action of the secretary of Unit A was entirely reasonable and, second, that that Court distorted the appellant’s perspective of it, namely the feeling of being disturbed during sick leave. In paragraph 114 of the judgment under appeal, the General Court assumed it to have been established that that secretary did not know about the appellant’s sick leave, thereby distorting the facts, since there were means for that secretary to know about the duration of the appellant’s leave, as is apparent from paragraphs 9 and 113 of the judgment under appeal.
114As regards the conduct of that secretary, the appellant submits that, contrary to what the General Court stated in paragraphs 9, 13, 113 and 114 of the judgment under appeal, that person was insistent and that it was not only twice that she contacted the appellant during her sick leave. In paragraphs 9, 113 and 114 of the judgment under appeal, the General Court distorted Annex 5 to the application at first instance concerning the email correspondence between the secretary of Unit A and the appellant regarding the appellant’s office move. That correspondence shows that that secretary played an active role in planning that move during the appellant’s sick leave, which amounts to conduct that should be classified as intrusive. Contrary to what is stated in paragraph 114 of the judgment under appeal, that correspondence shows that that secretary was aware of the appellant’s sick leave situation.
115According to the appellant, in paragraphs 6, 9, 13, 113 and 114 of the judgment under appeal, the General Court distorted pages 313 and 205 of the documents annexed to the application at first instance, showing that the appellant made aware her hierarchy in advance about the need for her medical treatment, in particular by the email of 12 May 2020. In paragraphs 7, 11, 14, 16 and 17 of the judgment under appeal, the General Court distorted Annex 6 to the application at first instance concerning, respectively, the email of 8 June 2020, the emails of 23 and 24 June 2020, the correspondence between the administration and the appellant regarding Case E, the email of 26 August 2020, the emails of 8, 26, 28 and 31 August 2020 and the email of 6 September 2020. The General Court failed to take account of Annex 10 to the application at first instance, which shows, in the appellant’s submission, that on 25 July 2020 she remained in charge of three cases with ongoing final reports. In paragraphs 103, 104 and 107 of the judgment under appeal, the General Court focused on the nature of the requests made by the Head of Unit C to the appellant, without placing them in context, which would have shown the appellant’s involvement in the handling of several work matters. The General Court failed to take account of Annex 3 to the application at first instance, relating to the medical documents and confirming that the condition of the appellant’s right leg required surgery, as well as of Annex 8 referring to the intervention of confidential counsellor.
116In addition, the appellant submits that the General Court distorted the evidence relating to various pleas in law raised in her written pleadings by referring, in paragraphs 3 to 29 and 99 to 111 of the judgment under appeal, to the general context, the tone and the nature of the exchanges between her and the administration of her unit and, in particular, between her and the Head of Unit C. The appellant further states that, in paragraphs 7, 11, 14, 16 and 17 of that judgment, the General Court distorted Annex 6 to the application at first instance by failing to take account of the fact that she had continuously reminded the members of her team that she was on sick leave and that she did not wish to be involved in the work of the unit during that period.
117The appellant claims that the General Court also failed to take account of Annex 10 to the application at first instance, which means that the finding in paragraph 24 of the judgment under appeal that the appellant had no more cases within her unit is incorrect.
118By the eleventh part of the second ground of appeal, the appellant submits that, in paragraph 147 of the judgment under appeal, the General Court erred in holding that the emails between, on the one hand, the Head of Unit C and the secretary of Unit A and, on the other hand, the appellant did not give rise to any personal information being sent such as to infringe her right to respect for her private life. In so doing, the General Court incorrectly assessed the protection of privacy provided for in Articles 7 and 8 of the Charter and the relevant case-law of the European Court of Human Rights (ECtHR). In that regard, it is apparent from the judgment of the ECtHR of 22 February 2018, Libert v. France (CE:ECHR:2018:0222JUD000058813, §§ 24 and 25), that the context of the processing of personal data, be it professional or otherwise, does not solely determine its impact on the private life of the data subject. It is the nature of the data themselves and the way in which they relate to that private life which are of key importance.
119The appellant further submits that the General Court’s statement in paragraph 143 of the judgment under appeal that all professional activities are automatically excluded from the protection of private life is contrary to Article 7 of the Charter and Article 8 ECHR.
120Furthermore, the appellant claims that the General Court disregarded the case-law of the European Court of Human Rights relating to the negative and positive obligations of the Contracting States as regards the protection of private life, the requirement that the interference in the private sphere be lawful, the margin of appreciation of those States in that regard, and the requirement of effective legal protection against that interference.
121According to the appellant, the General Court’s finding in paragraph 147 of the judgment under appeal that the topic of the appellant’s sick leave was addressed in the emails at issue only in a professional context and in a vague manner is contradicted by the wording of paragraphs 6, 11, 12 and 15 of the judgment under appeal.
122The appellant claims that the General Court’s conclusion in paragraph 149 of the judgment under appeal, according to which the appellant’s ‘right to health’ was not infringed, is vitiated by an error of law, since it is in breach of Articles 7 and 8 of the Charter. While primarily professional in nature, the emails and interactions at issue clearly intrude into the appellant’s personal sphere, as regards, in particular, her sick leave and her ‘right to health’. In paragraphs 5 to 7, 9, 11, 12 and 15 to 18 of the judgment under appeal, the General Court blurred the line between professional and personal matters. The appellant claims that the fact that her superiors sought her input during her sick leave, by requesting that she contribute to ongoing cases and to decisions on office moves, as referred to by the General Court in paragraphs 6, 7, 9, 11, 16 and 17 of the judgment under appeal, disrupted the normal course of that leave and implied interference with her privacy and ‘health-related needs’.
123By the twelfth part of the second ground of appeal, alleging, in essence, that the reasoning of the judgment under appeal is contradictory, the appellant submits that, in paragraph 100 of that judgment, the General Court focused on the organisational plan for Cases E, F and G, stating that no specific work was requested from the appellant. However, that statement is contradicted by the wording of paragraphs 7, 9 and 10 of that judgment, which refer to a greater level of engagement on the part of the appellant.
124The appellant states that, in paragraph 101 of the judgment under appeal, the General Court noted that it is true that, in the emails of 1 July 2020, the Head of Unit C asked the appellant questions about Case E. However, the General Court found that, since a reply to those questions was not expected until after the appellant’s return from her sick leave, the impact of that communication on her private sphere was less significant. Those findings stand in contradiction to paragraph 14 of the judgment under appeal.
125The appellant states that, although the General Court did indeed refer, in paragraph 103 of the judgment under appeal, to the appellant being invited to a video call, it emphasised, in paragraph 102 of that judgment, the courteous nature of the exchanges between the appellant and the Head of Unit C, contrary to the facts referred to in paragraphs 11 and 12 of that judgment.
126The appellant states that, as regards the emails of 26 and 31 August 2020, the General Court noted in paragraph 103 of the judgment under appeal that the appellant had received a new version of a report for approval, but that she was required to perform the work requested only after her return from sick leave. That statement is contradicted by the considerations set out in paragraphs 16 and 17 of the judgment under appeal.
127As regards the question whether the Head of Unit C had been aware of the extensions of the appellant’s sick leave, referred to in paragraph 105 of the judgment under appeal, the appellant claims that the General Court’s finding in paragraph 102 of that judgment contradicts those set out in paragraphs 11, 16 and 18 of that judgment.
128The appellant criticises the General Court for having erred in finding, in paragraphs 103 and 105 of the judgment under appeal, that the Head of Unit C had not been fully aware of the extensions of her sick leave, whereas, in paragraphs 6, 11, 13 and 16 of that judgment, reference is made to that head of unit’s messages concerning the status of that leave.
129The appellant states that the reference in paragraph 147 of the judgment under appeal, according to which no specific date for the appellant’s return from her sick leave was mentioned in the email exchanges between her and the Head of Unit C and secretary of Unit A, is contradicted by the finding made in paragraph 18 of that judgment.
130The Commission contends that the second ground of appeal should be rejected as in part inadmissible, in part ineffective, and in part unfounded.
Findings of the Court
–The first and third parts of the second ground of appeal
131In order to examine the first and third parts of the second ground of appeal, it must be recalled, as a preliminary point, that, in paragraphs 97 and 98 of the judgment under appeal, the General Court examined the appellant’s argument, raised in her reply at first instance, that the decision opening the invalidity procedure was a factor contributing to continued harassment against her.
132In paragraph 98 of that judgment, to which the appellant refers in that first part, the General Court found that it was not apparent from the appellant’s pleadings that that argument had been made explicitly in the application at first instance or that it was linked to a plea in law or argument made in the application. Accordingly, the General Court found that that argument was inadmissible, pursuant to Article 84(1) of its Rules of Procedure.
133By the first part of the second ground of appeal, the appellant criticises the General Court for failing to examine of its own motion whether or not the decisions at issue complied with Articles 59 and 90 of the Staff Regulations, since the rules contained therein are, according to her, a matter of public order.
134Article 59 of the Staff Regulations concerns an official’s sick leave and the material conditions for referral by the appointing authority to the Invalidity Committee, while Article 90 of those regulations concerns the taking of a decision by the appointing authority in respect of an official and the possibility for that official to lodge a complaint against an act adversely affecting him or her.
135In that regard, it must be borne in mind that it follows from the rules governing the procedure before the Courts of the European Union, in particular Article 21 of the Statute of the Court of Justice of the European Union and Article 76 of the Rules of Procedure of the General Court, that the dispute is in principle determined and circumscribed by the parties and that the Courts of the European Union may not rule ultra petita.
136While certain pleas may, and indeed must, be raised by the courts of their own motion, such as the question whether a statement of reasons for the decision at issue is lacking or is inadequate, which falls within the scope of essential procedural requirements, a plea going to the substantive legality of that decision, which falls within the scope of infringement of the Treaties or of any rule of law relating to their application, within the meaning of Article 263 TFEU, can, by contrast, be examined by the Courts of the European Union only if it is raised by the applicant (judgment of 10 December 2013, Commission v Ireland and Others, C‑272/12 P, EU:C:2013:812, paragraph 28 and the case-law cited).
137Consequently, a plea alleging an infringement of Article 59 of the Staff Regulations cannot be raised by a court of its own motion.
138As regards Article 90 of the Staff Regulations, the appellant has not explained why the decisions at issue are contrary to that provision or what was the specific plea, based on that provision, which, in her view, the General Court should have raised of its own motion. Accordingly, that part of her line of argument does not meet the requirements set out in paragraph 151 below and must be rejected as inadmissible.
139As regards the third part of the second plea in law, which alleges that the General Court erred in the interpretation and the application of the first subparagraph of Article 84(1) of its Rules of Procedure, it must be recalled that, in accordance with the wording of that provision, a new plea in law may be introduced in the course of proceedings only where it is based on matters of law or of fact which come to light in the course of the procedure.
140In that regard, as has been recalled in paragraph 132 above, the appellant’s argument, raised in her reply at first instance, according to which the decision opening the invalidity procedure was a factor contributing to continued harassment against her, was declared inadmissible by the General Court pursuant to that provision on the ground, set out in paragraph 98 of the judgment under appeal, that it was not based on matters of law or of fact that had come to light in the course of the procedure and that, therefore, it constituted a new plea within the meaning of Article 84(1) of its Rules of Procedure.
141In so ruling, the General Court vitiated its reasoning by an error of law.
142Given that, in the case at hand, the appellant had relied, as is clear from paragraph 97 of the judgment under appeal, on the opening of the invalidity procedure not in order to put forward a new reason of law or of fact justifying the annulment of the decision rejecting the request for assistance, but to support the allegation of psychological harassment on which she had relied in her application, the General Court could not classify that argument as a ‘new plea’ within the meaning of Article 84(1) of its Rules of Procedure without misconstruing the scope of that provision.
143However, it must be stated that the decision opening the invalidity procedure was taken on 21 May 2021 and, therefore, after the adoption of the decision rejecting the request for assistance, which is dated 4 December 2020. As the General Court also pointed out in paragraph 81 of the judgment under appeal, as regards the lawfulness of a decision rejecting a request for assistance such as that at issue, the Courts of the European Union must examine the merits of that decision in the light of the matters brought to the attention of the institution, in particular by the applicant for assistance, at the time the institution took its decision (see, to that effect, judgment of 26 January 1989, Koutchoumoff v Commission, 224/87, EU:C:1989:38, paragraph 20). That decision opening the invalidity procedure cannot therefore affect the merits of the General Court’s assessments.
144The first part of the second ground of appeal must therefore be rejected as unfounded, and the third part of that ground of appeal must be rejected as ineffective.
–The second part of the second ground of appeal
145In the second part of the second ground of appeal, the appellant complains that the General Court did not refer to the failure to state reasons for the decision at issue.
146In that regard, as the General Court recalled in paragraph 72 of the judgment under appeal, the reasons given for a measure are sufficient if it is adopted in a context known to the official concerned, which enables that official to understand its scope (see, to that effect, judgments of 1 June 1983, Seton v Commission, 36/81, 37/81 and 218/81, EU:C:1983:152, paragraph 48, and of 12 November 1996, Ojha v Commission, C‑294/95 P, EU:C:1996:434, paragraph 18). It follows, according to the General Court, that a statement of reasons need not be exhaustive but must, on the contrary, be regarded as adequate if it sets out the facts and legal considerations which are of decisive importance in the general scheme of the decision (see, to that effect, judgments of 27 April 2023, Casa Regina Apostolorum della Pia Società delle Figlie di San Paolo v Commission, C‑492/21 P, EU:C:2023:354, paragraph 49, and of 30 June 2022, Fakro v Commission, C‑149/21 P, EU:C:2022:517, paragraph 190).
147In paragraph 73 of the judgment under appeal, the General Court found that, in the case at hand, the obligation to state reasons did not mean that the appointing authority had specifically to address all the documents submitted by the appellant. The General Court added that it was not apparent from the decision rejecting the request for assistance, supplemented by Decision R/138/21 rejecting the complaint, that there had been a failure to comply with that obligation, since those decisions had set out sufficient reasons and had allowed the appellant to challenge them before the General Court and for that Court to examine their lawfulness.
148As the General Court correctly found in paragraph 73 of that judgment, the decision rejecting the request for assistance, supplemented by Decision R/138/21 rejecting the complaint, was sufficiently reasoned, with the result, moreover, that the appellant was able to challenge those decisions before the General Court and for that Court to examine their lawfulness.
149In those circumstances, the second part of the second ground of appeal must be rejected as unfounded.
–The fourth part of the second ground of appeal
150By the fourth part of the second ground of appeal, the appellant complains that the General Court erred in law by failing to recognise that there was psychological harassment against her, within the meaning of Article 12a of the Staff Regulations, even though, first, the Commission should have refrained from opening the invalidity procedure and, second, the context and the cumulative impact of the actions of the Head of Unit C amounted to such harassment.
151As regards, in the first place, the part of the appellant’s line of argument concerning the fact that the Commission should have refrained from opening an invalidity procedure vis-à-vis her, it must be declared inadmissible. It should be borne in mind that, under Article 169(2) of the Rules of Procedure of the Court of Justice, the pleas in law and legal arguments relied on must identify precisely those points in the grounds of the decision of the General Court which are contested. Consequently, according to settled case-law, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or the relevant ground of appeal will be declared inadmissible (judgment of 28 September 2023, Changmao Biochemical Engineering v Commission, C‑123/21 P, EU:C:2023:708, paragraph 87 and the case-law cited). In the present case, the appellant’s line of argument does not meet those requirements, since it merely refers to the Commission’s conduct, without referring to one of the points in the grounds of the judgment under appeal (see, by analogy, judgment of 29 June 2023, TUIfly v Commission, C‑763/21 P, EU:C:2023:528, paragraph 53 and the case-law cited).
152As regards, in the second place, the argument by which the appellant criticises the General Court for not having classified the conduct of the Head of Unit C referred to in paragraphs 107 and 108 of the judgment under appeal as psychological harassment and for having failed to take account of the context in which that conduct took place and of the cumulative impact of that head of unit’s actions, it is sufficient to note that, in paragraphs 99 to 111 of the judgment under appeal, the General Court examined in detail that conduct, taking into account its context, namely, in particular, that head of unit’s lack of knowledge of the extensions of the appellant’s sick leave.
153Furthermore, the General Court acknowledged, in paragraph 107 of that judgment, that it was inappropriate for the Head of Unit C to contact the appellant to request information on Case G on the day following the appellant’s submission of a declaration of conflict of interest concerning that case. Nevertheless, in paragraph 108 of that judgment, the General Court was entitled to find, without committing an error of law, that that conduct on the part of the Head of Unit C cannot, in itself, constitute psychological harassment, especially since the possibility had remained open for the appellant not to comply with the request of the Head of Unit C, since that head of unit had not insisted on receiving the information requested.
154The fourth part of the second ground of appeal must therefore be rejected as in part inadmissible and in part unfounded.
–The fifth part of the second ground of appeal
155By the fifth part of the second ground of appeal, the appellant criticises the General Court for failing to find that the conduct of the Head of Unit C should have triggered an investigation in order to ascertain whether that person had failed to fulfil her obligations under Articles 11a, 12 and 12a of the Staff Regulations.
156In accordance with the case-law referred to in paragraph 151 above, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or the relevant ground of appeal will be declared inadmissible.
157In the present case, the appellant has not indicated either the points in the grounds of the judgment under appeal that are the subject matter of the fifth part of the second ground of appeal or the relevance of the matter of a possible initiation of disciplinary proceedings against the Head of Unit C, which is a matter separate from that of the review of the lawfulness of the decision rejecting the request for assistance, the latter being the subject matter of the second ground of appeal.
158The fifth part of the second ground of appeal must therefore be rejected as inadmissible.
–The sixth part of the second ground of appeal
159By the sixth part of the second ground of appeal, the appellant submits, in essence, first, that, by failing adequately to address the Commission’s conduct, the General Court infringed Articles 11a and 59 of the Staff Regulations, as well as the right to dignity, the right to respect for private life and the right to the protection of personal data, enshrined, respectively, in Articles 1, 7 and 8 of the Charter. Second, the appellant claims that, in paragraphs 107 and 108 of the judgment under appeal, the General Court infringed Articles 11 and 21 of the Staff Regulations by finding that there was insufficient evidence in support of the existence of psychological harassment, even though the Head of Unit C had behaved inappropriately.
160In that regard, as regards the first part of that line of argument, it amounts, in reality, to criticising the General Court for not having given sufficient consideration to the evidence submitted to it. It is not for the Court of Justice, on appeal, to substitute its own assessment of the evidence for that made by the General Court and, in particular, to criticise the choices made by the General Court in the context of that examination, where it decides to rely on certain items of evidence submitted for its assessment and to reject others, unless it finds that the General Court distorted that evidence (see, to that effect, in particular, order of 22 June 2023, QN v Commission, C‑720/22 P, EU:C:2023:536, paragraph 32).
161As regards the second part of that line of argument, it must be noted that, in paragraph 108 of the judgment under appeal, the General Court found that the conduct of the Head of Unit C cannot, on its own, constitute psychological harassment. The General Court stated that, in the email in question, the possibility had remained open for the appellant not to comply with the request of the Head of Unit C, and, moreover, that it was not apparent from the file that the Head of Unit C had insisted on receiving the information requested. On 25 September 2020, after having informed the appellant that the declaration of conflict of interest had been endorsed, the Head of Unit C confirmed to the appellant that she was released from the case in question and that, consequently, she had no more pending cases within her unit.
162In the context of the sixth part of the second ground of appeal, the appellant has not identified with the degree of precision required, in accordance with the case-law referred to in paragraph 151 above, the error of law allegedly vitiating the General Court’s reasoning.
163The sixth part of the second ground of appeal must therefore be rejected as inadmissible.
–The seventh part of the second ground of appeal
164By the seventh part of the second ground of appeal, the appellant claims that the General Court erred in holding that the burden of proof of harassment lies with the victim.
165In that regard, it is sufficient to note that that assertion is based on a misreading of the judgment under appeal.
166In paragraph 78 of the judgment under appeal, the General Court held that, where a request for assistance within the meaning of Article 24 of the Staff Regulations is made to the administration, pursuant to Article 90(1) of those Staff Regulations, that administration must, by virtue of the duty to provide assistance and when faced with an incident which is incompatible with the good order and tranquillity of the service, intervene with all the necessary vigour. Furthermore, it must respond with the rapidity and solicitude required by the circumstances of the case so as to ascertain the facts and, having done so, to take the appropriate action in full knowledge of the matter. To that end, it is sufficient that the official or other staff member who is seeking the protection of his or her institution provide prima facie evidence that the attacks of which he or she claims to have been the victim actually took place. When such evidence is provided, the institution concerned is then under an obligation to take the necessary measures, in particular to conduct an administrative inquiry, with the cooperation of the complainant, to determine the facts which gave rise to the complaint.
167In paragraphs 80 and 94 of that judgment, the General Court held that, where, as in the case at hand, the allegations in the request for assistance concern psychological harassment, it is for the applicant for assistance to provide prima facie evidence thereof, in the light of the definition in Article 12a(3) of the Staff Regulations, that is to say, ‘any improper conduct that takes place over a period, is repetitive or systematic and involves physical behaviour, spoken or written language, gestures or other acts that are intentional and that may undermine the personality, dignity or physical or psychological integrity’ of the applicant for assistance.
168Accordingly, contrary to what the appellant claims, the General Court did not rule out, in its assessment of the lawfulness of the decision rejecting the request for assistance, an obligation on the part of the institution concerned to take the necessary measures, in particular by conducting an administrative inquiry in order to determine the facts which gave rise to the complaint.
169It is true that the General Court found that that obligation on the part of the institution concerned presupposes that the official or other staff member concerned provides prima facie evidence that the acts to which he or she claims to have been subjected actually took place. Nevertheless, in so doing, the General Court did not err in law. The administration cannot be required to conduct an administrative inquiry on the basis of mere allegations made by an official or a member of staff (judgment of 7 December 2023, HV and HW v ECDC, C‑615/22 P, EU:C:2023:961, paragraph 45 and the case-law cited).
170The seventh part of the second ground of appeal must therefore be rejected as unfounded.
–The eighth part of the second ground of appeal
171In order to examine the eighth part of the second ground of appeal alleging infringement by the General Court of Article 21 of the Staff Regulations, it must be recalled that, in paragraph 104 of the judgment under appeal, the General Court found that, as regards the emails of 26 and 31 August 2020, the Head of Unit C had taken care to specify that the appellant was not required to perform the work requested until after the end of her sick leave.
172As regards the email of 8 September 2020 referred to in paragraph 108 of the judgment under appeal, the General Court also found that, in that email, the possibility had remained open for the appellant not to comply with the request of the Head of Unit C.
173It must be noted that the appellant has not explained, in her appeal, the reasons why those findings of fact by the General Court are contrary to Article 21 of the Staff Regulations, which provides that the official is required to assist and tender advice to his or her superiors and is to be responsible for the performance of the duties assigned to him or her. Although the appellant has also claimed in her appeal that the request of the Head of Unit C placed her in a situation in which she would have been led to disregard either her obligation under Article 11a of the Staff Regulations not to deal with any matter in which she had, directly or indirectly, any ‘personal interest’, or her obligation, under Article 21 of the Staff Regulations, to assist and tender advice to her hierarchical superiors, she has not explained sufficiently clearly how that fact, were it to be regarded as established, would demonstrate that the General Court erred in law.
174The eighth part of the second ground of appeal must therefore be rejected as unfounded.
–The ninth part of the second ground of appeal
175By the ninth part of the second ground of appeal, the appellant claims that the General Court failed to examine, first, the Commission’s refusal to grant her request for work flexibility, and, second, the repeated requests for extra work out of the line of the assignment, which are contrary to the Commission’s general recommendations on health at work.
176In that regard, it is sufficient to note that the appellant did not complain, in her application at first instance, either of the Commission’s refusal to grant her request for work flexibility or of a lack of compliance with the Commission’s general recommendations on health at work, with the result that those arguments must be regarded as new.
177In accordance with settled case-law, to allow a party to put forward for the first time before the Court of Justice a plea and arguments which it did not raise before the General Court would be to authorise it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court. In an appeal, the jurisdiction of the Court of Justice is confined to review of the findings of law on the pleas and arguments debated before the General Court (judgment of 27 February 2025, OA v Parliament, C‑32/24 P, EU:C:2025:118, paragraph 22 and the case-law cited).
178In those circumstances, the ninth part of the second ground of appeal must be rejected as inadmissible.
–The tenth part of the second ground of appeal
179By the tenth part of the second ground of appeal, the appellant complains that the General Court distorted various facts and items of evidence.
180In that regard, it must be borne in mind that the alleged distortion must be clearly apparent from the documents in the case file, without there being any need to carry out a new assessment of the facts and the evidence. It presupposes that the General Court has manifestly exceeded the limits of a reasonable assessment of the evidence. In that regard, it is not sufficient to show that a document could be interpreted differently from the interpretation adopted by the General Court. The appellant must indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in its view, led to that distortion (judgment of 27 March 2025, XH v Commission, C‑91/23 P, EU:C:2025:219, paragraphs 28 and 49).
181The appellant’s line of argument set out in paragraphs 113 to 117 above is, in the light of those requirements, insufficient to establish the alleged distortions.
182The tenth part of the second ground of appeal must therefore be rejected as inadmissible.
–The eleventh part of the second ground of appeal
183By the eleventh part of the second ground of appeal, the appellant submits that the General Court erred in its assessment of the protection of privacy, enshrined in Article 7 of the Charter and Article 8 ECHR, and of the protection of personal data, enshrined in Article 8 of the Charter, for the reasons set out in paragraphs 118 to 122 above.
184In that regard, it must be noted that the appellant’s claims relating to paragraph 143 of the judgment under appeal are based on an incorrect premiss, since, in that paragraph of the judgment under appeal, the General Court found that, according to the case-law of the European Court of Human Rights, ‘private life’ is a broad concept and there is no reason in principle to exclude professional or business activities from that concept, within the meaning of Article 8 ECHR.
185It must be noted that, in paragraph 145 of the judgment under appeal, the General Court recalled that, according to the case-law of the European Court of Human Rights (ECtHR, 22 February 2018, Libert v. France, CE:ECHR:2018:0222JUD000058813, §§ 24 and 25), for the conclusion to be reached that emails sent from the workplace are covered by Articles 7 and 8 of the Charter, they must contain non-professional data, namely data relating to the private life of the person in question.
186Therefore, contrary to what the appellant claims, in recalling and applying that case-law, the General Court did not make the professional context a decisive criterion.
187As regards the appellant’s assertion that the finding made by the General Court, in paragraph 147 of the judgment under appeal, that the matter of the appellant’s sick leave was addressed in the emails at issue only in a professional context and in a vague manner, is contradicted by the wording of paragraphs 6, 11, 12 and 15 of the judgment under appeal, it must be noted that that assertion is based on a misreading of the judgment under appeal. When, in paragraph 147 of the judgment under appeal, the General Court referred to the fact that the appellant’s sick leave was addressed in a professional context and in a vague manner, it was in connection with the email exchanges between, on the one hand, the Head of Unit C and the secretary of Unit A and, on the other hand, the appellant.
188Only paragraphs 6 and 11 of the judgment under appeal relate to such emails. In addition, as regards those paragraphs, the appellant merely summarises their contents or describes the implications which she infers from them, without, however, explaining, with the requisite precision, how those paragraphs contradict paragraph 147 of the judgment under appeal, with the result that that assertion is inadmissible.
189As regards the appellant’s claim that the General Court disregarded the case-law of the European Court of Human Rights relating to the negative and positive obligations of the Contracting States as regards the protection of private life, the requirement that the interference in the private sphere be lawful, the discretion of those States in that regard, and the requirement of effective legal protection against that interference, it must be stated that that allegation is too vague and, therefore, must be rejected as inadmissible.
190As regards the appellant’s argument that the General Court’s ruling, in paragraph 149 of the judgment under appeal, that her ‘right to health’ was not infringed, was in breach of Articles 7 and 8 of the Charter, it is sufficient to recall that, in that paragraph, the General Court held that, in the light of the findings made in paragraphs 99 to 115 of that judgment, the appointing authority had not made an error of assessment in finding that the appellant had not provided prima facie evidence of harassment on account of obligations to perform work or due to a request to move office during her sick leave.
191That argument seeks, in reality, to call into question the factual assessments made by the General Court, which, in the absence of distortion of the evidence on which the General Court relied, are not subject to review by the Court of Justice on appeal.
192Accordingly, that argument must be rejected as inadmissible.
193The eleventh part of the second ground of appeal must therefore be rejected as in part unfounded and in part inadmissible.
–The twelfth part of the second ground of appeal
194In the twelfth part of the second ground of appeal, the appellant submits that the reasoning of the judgment under appeal is vitiated by several contradictions.
195In the first place, in paragraph 100 of that judgment, the General Court found that the electronic exchanges of 8 and 9 June 2020, referred to in paragraphs 17 and 20 above, did not contain any request to perform work addressed to the appellant, which, according to her, is contradicted by the findings made by the General Court in paragraphs 7, 9 and 10 of the judgment under appeal.
196However, it must be stated that it is not clear from those electronic exchanges of 8 and 9 June 2020, referred to in paragraphs 7, 9 and 10 of the judgment under appeal, that they contained such a request.
197First, in paragraph 7 of that judgment, the General Court referred to an email sent to the appellant and the Head of Unit A on 8 June 2020 by a member of Unit A. Although the General Court noted that that email, which concerned the three cases referred to in paragraph 13 above, contained comments and suggestions for the next stages for handling those cases, that finding does not mean that that member of Unit A had asked the appellant to perform work, even assuming that that member had had that power. Moreover, the General Court found in paragraph 7 of the judgment under appeal that the Head of Unit A had replied to that email that, given the fact that the appellant was on leave, that member of Unit A had to consult the Head of Unit C, in order to find out whether the latter preferred to close the cases at issue before OLAF’s reorganisation of 16 June 2020, or whether she preferred to wait for the appellant’s return from sick leave expected to be after that date.
198Second, in paragraph 9 of the judgment under appeal, the General Court noted that on 8 June 2020, the secretary of Unit A had sent the appellant an email concerning her change of office in connection with OLAF’s internal reorganisation referred to in paragraph 14 above. It is true that, in that email, the appellant was asked whether, in the light of her sick leave until 22 June 2020, she was willing to authorise a third person to move her belongings prior to that date. Nevertheless, that request for authorisation cannot be treated in the same way as a request to perform work addressed to the appellant.
199Third, in paragraph 10 of the judgment under appeal, the General Court found that, on 9 June 2020, the Head of Unit C had replied to the emails referred to in paragraph 7 of that judgment, stating that, in view of the circumstances, it seemed to her very difficult to close the cases at issue before 16 June 2020. It must be stated that, once again, that finding cannot indicate the existence of a request to perform work addressed to the appellant.
200As regards, in the second place, the alleged contradiction between paragraphs 101 and 14 of the judgment under appeal, it must be recalled that, in paragraph 101 thereof, the General Court ruled on the emails of 1 July 2020, referred to in paragraph 14 of the judgment under appeal, in which the Head of Unit C had asked the appellant questions concerning Case E. In that regard, the General Court pointed out that those exchanges indeed consisted in a request for information concerning that case, with a view to analysing the report prepared by the appellant, but that the Head of Unit C had also stated that a reply from the appellant was not expected until her return from sick leave.
201Those findings of the General Court do not in any way contradict the finding made in paragraph 14 of the judgment under appeal that, first, on 1 July 2020, the Head of Unit C had sent the appellant two emails in which she had asked her questions concerning Case E and, second, the appellant had replied to them on 6 July 2020.
202In the third place, the appellant submits that the General Court’s finding in paragraph 102 of the judgment under appeal, concerning the courteous wording of the emails that were sent to her, including the invitation to a video call, contradicts the facts set out in paragraphs 11 and 12 of that judgment.
203That argument of the appellant is based on a misreading of paragraph 102 of the judgment under appeal.
204In that paragraph 102, the General Court observed the courteous and respectful wording of all the emails between the Head of Unit C and the appellant, referred to in paragraphs 100 and 101 of the judgment under appeal.
205First, no contradiction in the reasoning can be found between that finding and the finding made in paragraphs 11 and 12 of the judgment under appeal. Whereas the emails referred to in paragraphs 100 and 101 of the judgment under appeal are dated 8 and 9 June 2020 and 1 July 2020, those referred to in paragraphs 11 and 12 of that judgment are dated 23 June 2020.
206Second, even if it were to be considered that the appellant is in fact seeking to challenge the General Court’s reading of the emails referred to in paragraphs 100 and 101 of that judgment by relying on those referred to in paragraphs 11 and 12 of that judgment, such an argument would have to be rejected, since, as has already been recalled in paragraph 160 above, it is not for the Court of Justice, when ruling on an appeal, to substitute its own assessment of the evidence for that made by the General Court.
207As regards the appellant’s argument that the reference made in paragraph 103 of the judgment under appeal to the fact that that appellant was not required to perform the work at issue until her return from sick leave stands in contradiction to the findings of the General Court made in paragraphs 16 and 17 of that judgment, it must be stated that, by that argument, the appellant is in fact referring not to paragraph 103 of the judgment under appeal, but to paragraph 104 thereof, since it was in paragraph 104 of that judgment that the General Court found that, as regards the emails of 26 and 31 August 2020, the Head of Unit C had taken care to specify that the appellant was not required to perform the work requested until after the end of her sick leave.
208That finding of the General Court does not contradict paragraphs 16 and 17 of the judgment under appeal.
209It is true that, in paragraph 16 of the judgment under appeal, the General Court noted that the Head of Unit C had asked the appellant to approve the contents of a new draft final report in Case E and whether she could carry out certain checks with the EPO, which amounts to a request to perform work addressed to the appellant. Nevertheless, in that paragraph of the judgment under appeal, the General Court also noted that that head of unit had stated in a second email to the appellant that the email of 26 August 2020, containing a new draft final report for approval in a case, had been sent to the appellant for it to be dealt with upon her return from sick leave. In paragraph 104 of the judgment under appeal, the General Court referred in general terms to the emails of 26 and 31 August 2020, without claiming that it was in the first email of 26 August 2020 that such details had been provided.
210In paragraph 17 of the judgment under appeal, although the General Court noted that the Head of Unit C had indicated, in a first email dated 31 August 2020, that she was counting on the appellant to close several cases upon her return from leave and that, on the same day, she had sent the appellant two other emails containing, respectively, an amended draft final report in one case and a new final report in another, the General Court noted that that head of unit had stated that the appellant had to deal with them only once back from her sick leave.
211In the fourth place, according to the appellant, the General Court’s finding in paragraph 105 of the judgment under appeal that the Head of Unit C had not been aware of the successive extensions of her sick leave stands in contradiction to paragraphs 6, 11, 13, 16 and 18 of that judgment.
212In that regard, it must be noted that paragraph 6 of the judgment under appeal concerns an email sent by the appellant to members of Unit A on 2 June 2020, without that paragraph referring to knowledge of the appellant’s sick leave on the part of the Head of Unit C.
213Nor did the General Court find, in paragraph 11 of the judgment under appeal, that the Head of Unit C had been aware of the extensions of that leave. On the contrary, that paragraph shows that it was the appellant who informed that official, and only in response to the latter’s email, that she was still on sick leave.
214As regards paragraph 13 of the judgment under appeal, it merely states that the secretary of Unit A sent the appellant, on 30 June 2020, a new email asking her whether she had reached a decision concerning her office move.
215In paragraph 16 of the judgment under appeal, the General Court stated that it was the appellant, in response to an email from the Head of Unit C of 26 August 2020, who had informed the Head of Unit C of the extension of her sick leave.
216In paragraph 18 of the judgment under appeal, the General Court merely noted that, on 6 September 2020, the appellant had replied to the email of the Head of Unit C of 31 August 2020 that her sick leave had been extended and that the cases at issue could be closed without her involvement.
217In the fifth place, the appellant submits that the finding in paragraph 147 of the judgment under appeal that no specific date for her return from sick leave had been indicated in the emails exchanged between her and the Head of Unit C and the secretary of Unit A stands in contradiction with the content of paragraph 18 of that judgment.
218In that regard, it is sufficient to recall that, in paragraph 18 of the judgment under appeal, the General Court noted that, on 6 September 2020, the appellant had replied to the email of the Head of Unit C of 31 August 2020 that her sick leave had been extended and that the cases in question could be closed without her involvement.
219However, it does not follow from that that the General Court found that a specific date on which the appellant would return from her sick leave had been indicated.
220Since none of the various arguments put forward by the appellant in support of her claim that the General Court provided contradictory reasoning for its judgment appears to be well founded, the twelfth part of the second ground of appeal must be rejected as unfounded.
221Accordingly, the second ground of appeal must be rejected in its entirety as in part inadmissible and in part unfounded.
222Since all of the grounds relied on in support of the appeal have been rejected, the appeal must be dismissed in its entirety.
Costs
223Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
224Since the Commission has applied for costs to be awarded against the appellant and the appellant has been unsuccessful, the appellant must be ordered to bear her own costs and to pay those incurred by the Commission.
Operative part
On those grounds, the Court (Fifth Chamber) hereby:
1.Dismisses the appeal;
2.Orders XH to bear her own costs and to pay those incurred by the European Commission.
Delivered in open court in Luxembourg on 15 January 2026.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.