AI v European Centre for Disease Prevention and Control.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2021:454
• Date: 14 July 2021
• Docket Number: T-65/19
• Celex Number: 62019TJ0065
• Court: General Court (European Union)

JUDGMENT OF THE GENERAL COURT (Seventh Chamber)

14 July 2021 ( *1 )

(Civil service – ECDC staff – Psychological harassment – Article 12a of the Staff Regulations – Request for assistance – Scope of the duty to provide assistance – Article 24 of the Staff Regulations – Resignation of the perpetrator of the behaviour complained of – Failure to open a disciplinary procedure – Article 86 of the Staff Regulations – Reply to a request for assistance – Action for annulment – Act adversely affecting an official – Infringement of the right to be heard – No statement of reasons – Denial of access to the investigation report and other documents – Article 41 of the Charter of Fundamental Rights – Liability)

In Case T‑65/19,

AI, represented by L. Levi and A. Champetier, lawyers,

applicant,

v

European Centre for Disease Prevention and Control (ECDC), represented by J. Mannheim and A. Iber, acting as Agents, and by D. Waelbroeck and A. Duron, lawyers,

defendant,

APPLICATION under Article 270 TFEU seeking, first, annulment of the decisions of ECDC of 18 May 2018, 20 June 2018 and 26 October 2018 taken in response to the applicant’s request for assistance on the ground of psychological harassment and his request for access to certain documents and, secondly, compensation for the damage which he suffered,

THE GENERAL COURT (Seventh Chamber),

composed of R. da Silva Passos, President, L. Truchot and M. Sampol Pucurull (Rapporteur), Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the written part of the procedure and further to the hearing on 1 October 2020,

gives the following

Judgment

I. Background to the dispute

1 The applicant, AI, was recruited by the European Centre for Disease Prevention and Control (ECDC) on [confidential] ( 1 ).

2 On 20 June 2017, the applicant submitted a request for assistance (‘the first request for assistance’) in accordance with Article 24 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), concerning alleged acts of psychological harassment by his Head of Unit, A (‘the Head of Unit’). After describing those facts in detail, the applicant made the following request: ‘I would be grateful if you can assist me in stopping this situation that is causing a lot of distress to me, and I would also be grateful if you could investigate if this behaviour, which I perceive as repetitive, aggressive and abusive towards me, constitutes harassment.’

3 On 14 July 2017, the applicant submitted an information form supplementing his first request for assistance.

4 On 7 August 2017, ECDC notified the European Anti-Fraud Office (OLAF) of the first request for assistance. On 27 September 2017, following several exchanges with ECDC, the Head of Unit 0.1 of OLAF sent a note to the Director of ECDC (‘the Director’). That note indicated that OLAF had not initiated an investigation into those facts, that OLAF took note of the fact that ECDC was going to initiate its own investigation and that, in those circumstances, OLAF would not initiate an investigation itself.

5 On 28 September 2017, B, a former official of the European Commission, was mandated by the Director to carry out an investigation into the conduct of the Head of Unit denounced by the applicant and by another ECDC staff member, C, who had also submitted a request for assistance.

6 By email of the same day, the Director informed the applicant of the opening of the investigation following his first request for assistance and of the appointment of the investigator. She also informed him that, ‘on receipt of [B’s] report, [she would] make a decision on the matter’.

7 On 9 October 2017, the applicant was first heard by the investigator.

8 On 26 October 2017, the applicant contacted the Director to inform her of certain behaviour of the Head of Unit, similar to that previously reported in his first request for assistance, which had taken place during a working meeting held the previous day. The applicant informed the Director of his feelings of vulnerability and his concern about a meeting scheduled for that evening, also attended by the Head of Unit. In that context, the applicant asked to be relieved of the tasks in the context of which he was in contact with the Head of Unit.

9 The Director replied by email on the same day, indicating that she had rearranged her diary in order to be able to attend the upcoming meeting, which was of concern to the applicant. Following the meeting, the applicant and the Director had an initial discussion with the aim of identifying the tasks involving direct contact between the applicant and the Head of Unit and agreed to consider together, in the following days, a temporary solution for organising the applicant’s work until the end of the investigation.

10 In the course of that reflection, the applicant sent the Director a series of written options to mitigate the risk of moral harassment. Among the options listed ‘not in any particular order’, the applicant suggested to ‘move temporarily the line management of the section … under another Head of Unit’ or to ‘try to avoid contact … through the use of holidays, teleworking and flexi’.

11 On 30 October 2017 a meeting was held between the applicant and the Director, following which the Director suggested, by email dated 7 November 2017, that he opt for an occasional teleworking scheme for a longer period than normally planned, starting on 9 November 2017. In order to ensure his presence at meetings already scheduled and to organise the work of his team, the applicant finally postponed the start of the teleworking scheme to 13 November 2017.

12 On 25 November 2017, the applicant had a second interview with the investigator, this time by telephone, during which he described to the investigator the behaviour of the Head of Unit at the meeting of 25 October 2017 and his subsequent exchanges with the Director, as noted in paragraphs 8 to 11 above.

13 On 13 December 2017, the applicant ended his period of occasional teleworking. On the same date, the Head of Unit took leave until the end of 2017. The applicant, for his part, took leave at the beginning of 2018 and resumed his activity on 9 January 2018.

14 On 21 January 2018, B submitted his report to the Director (‘the investigation report’).

15 After remaining at his post throughout January 2018, the Head of Unit was placed on sick leave and replaced in his duties from 31 January 2018.

16 On 13 March 2018, the applicant requested, on the basis of Article 41(2)(b) of the Charter of Fundamental Rights of the European Union, access to the investigation report, including its conclusions and recommendations.

17 On 3 April 2018, the Head of Unit’s sick leave ended. On that date, he did not return to his previous duties, but was given tasks directly entrusted and supervised by the Director, without having any hierarchical link with the applicant.

18 By decision of 6 April 2018, in response to the applicant’s request of 13 March 2018 (see paragraph 16 above), the Director refused the applicant access to the investigation report on the ground that the proceedings initiated following the first request for assistance had not been closed. Moreover, in her view, the right of access of every person to the file concerning him or her, provided for in Article 41(2) of the Charter of Fundamental Rights, enables the safeguarding of his or her rights of defence when a decision adversely affects his or her interests.

19 On 6 April 2018, a meeting between the Head of Unit and the Director took place, during which she informed him orally about the outcome of the investigation.

20 By letter of 10 April 2018, the applicant submitted a new request for assistance (‘the second request for assistance’). In that request, he complained that the Head of Unit had contacted several ECDC staff members during and after the preparation of the investigation report to explain to them that the elements which the applicant had denounced in his first request for assistance were fabrications of a disgruntled employee. The applicant also pointed out that the Head of Unit was back in the office and could therefore continue to defame or harass him.

21 By letter of 16 April 2018, the applicant requested access to the investigation report for the second time, on the basis of Article 41 of the Charter of Fundamental Rights, but also of Article 13 of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1) and Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

22 A second meeting between the Director and the Head of Unit was scheduled for 16 April 2018, in order to give the Head of Unit the opportunity to formally comment on the investigation report, which had been communicated to him in the meantime. At the request of the Head of Unit, in order to allow him to prepare his oral observations, that meeting was postponed to 2 May 2018.

23 By decision of 8 May 2018, access to the investigation report requested by the applicant (see paragraph 21 above) was again refused on the grounds, first, that no decision adversely affecting him had yet been taken...