Skareby v EEAS (Staff Regulations of officials and Conditions of Employment of other servants : Judgment) [2017] EUECJ T-585/16 (15 September 2017)

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(Civil service — Officials — Freedom of expression — Duty of loyalty — Serious prejudice to the legitimate interests of the Union — Refusal of permission to publish an article — Request that the text be amended — Article 17a of the Staff Regulations — Subject matter of the action — Decision rejecting the administrative complaint)

Carina Skareby, an official of the European External Action Service (EEAS), residing in Louvain (Belgium), represented by S. Rodrigues and C. Bernard-Glanz, lawyers,

European External Action Service (EEAS), represented by S. Marquardt, acting as Agent, and by M. Troncoso Ferrer, F.-M. Hislaire and S. Moya Izquierdo, lawyers,

ACTION under Article 270 TFEU seeking (i) annulment of the decision of 5 June 2015 of the EEAS refusing permission to publish an article and requesting that changes be made to two paragraphs of the proposed text, and (ii) ‘so far as necessary’, annulment of the decision of 18 December 2015 of the EEAS rejecting the complaint brought against the original decision,

composed of M. Prek, President, F. Schalin and M.J. Costeira (Rapporteur), Judges,

having regard to the written part of the procedure and further to the hearing on 3 May 2017,

1 The applicant, Ms Carina Skareby, is an official of the European External Action Service (EEAS).

2 By email of 19 May 2015, the applicant, through her lawyers, informed the EEAS, pursuant to Article 17a of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), of her intention to publish, in the magazine Politico, an article entitled ‘Open Letter to Citizen Herman’, which was an open letter to the former President of the European Council, Mr Herman Van Rompuy, and aimed to draw attention to the problem of harassment within the European institutions (‘the text at issue’).

3 By note of 5 June 2015, the member of staff who was Acting Head of the Rights and Obligations Division of the Human Resources Directorate in the Directorate-General for Administration and Finances of the EEAS replied, stating that two paragraphs of the article submitted for authorisation were in breach of the ‘loyalty and reserve’ which the applicant owed the institution as an EU official due to the fact that she directly attributed to the EEAS management specific conduct amounting to a violation of the Staff Regulations, without any supporting evidence. Accordingly, he requested the applicant to provide a revised text taking into account those objections, failing which permission to publish could not be granted (‘the decision refusing permission to publish’).

4 The paragraphs of the text at issue concerned, that is, the fifth and eighteenth paragraphs (collectively, ‘the paragraphs at issue’), were worded as follows:

‘The modus operandi of the hierarchy of the European institutions seems, as I have witnessed it, to be to convince each individual, who has opinions on how the institutions are managed, that he or she is better off changing jobs, retiring early or accepting invalidity. Move on. Forget. This is how superiors can go on harassing certain subordinates and grooming favourites: maybe it is not a planned strategy — but nonetheless it is systematic.

The EEAS has to set an example in its internal application of rights, organizational transparency and rule of law — or we will not be credible on the international stage.’

5 By email of 1 July 2015, the applicant, through her lawyers, requested explanations regarding the decision refusing permission to publish, in particular in order to ascertain how, beyond the alleged breach of the duty of loyalty and reserve, the paragraphs at issue were liable ‘seriously to prejudice the legitimate interests of the Union’ within the meaning of Article 17a of the Staff Regulations.

6 By email of 24 July 2015, the principal lawyer of the Rights and Obligations Division replied as follows:

‘In [the decision refusing permission to publish], we did not argue that “the matter [was] liable seriously to prejudice the legitimate interests of the Union”.

Nevertheless, it is important to repeat that the EEAS does not authorise [the] publication [of the text at issue as] it is, as we consider it [to be] a breach of loyalty and reserve.

[P]ublication is subject to ... authorisation under [Article] 17(1) of the Staff Regulations.

We strongly advise your client not to proceed to ... publication without our authorisation.’

7 By letter of 4 September 2015, the applicant, through her lawyers, lodged a complaint against the decision refusing permission to publish, pursuant to Article 90(2) of the Staff Regulations. In that complaint she claimed, in essence, first, that the EEAS had infringed Article 17a of the Staff Regulations, given that it had failed to establish that publication of the text at issue was liable ‘seriously to prejudice the legitimate interests of the Union’, and, second, that the EEAS had consequently breached her right to freedom of expression under Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’), and Article 11 of the Charter of Fundamental Rights of the European Union.

8 By decision of 18 December 2015, the appointing authority of the EEAS (‘the appointing authority’) rejected the complaint lodged by the applicant (‘the decision rejecting the complaint’).

9 The decision rejecting the complaint indicates, in essence, that Article 17a of the Staff Regulations expresses the idea that there is a permanent need to strike the right balance between guaranteeing the right of EU officials to exercise freedom of expression and protecting a legitimate objective of general public interest, in particular protecting the legitimate interests of the Union. In that regard, the decision rejecting the complaint explains, first of all, that the text at issue concerns a matter dealing with the work of the Union, next, that the text at issue is liable to breach ‘loyalty and reserve’, and, lastly, that that breach constitutes, per se, a real risk of serious prejudice to the interests of the Union within the meaning of Article 17a of the Staff Regulations. The decision rejecting the complaint emphasises that publication of the text at issue would seriously prejudice the legitimate interests of the Union in so far as (i) the text at issue is not substantiated by any evidence to support its claims regarding the harassment of officials and (ii) the paragraphs at issue cannot be regarded as an opinion dissenting from that held by the EEAS, but suggest that there is a widespread and unresolved harassment problem within the EU institutions, which could be perceived, by the average reader, as indicating that the institutions have failed to implement an appropriate policy to combat harassment. In addition, the decision rejecting the complaint emphasises that further comments could have been made with respect to many parts of the text at issue, but that the EEAS has commented on only two paragraphs, which demonstrates that the decision rejecting the complaint is proportionate and limited only to what is strictly necessary.

10 By application lodged at the Registry of the Civil Service Tribunal on 15 March 2016, the applicant brought the present action. The case was registered as Case F‑15/16.

11 The EEAS’s defence was lodged at the Registry of the Civil Service Tribunal on 10 June 2016.

12 Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1992 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), the present case was transferred to the General Court in the state in which it was found as at 31 August 2016. The case was registered as Case T‑585/16 and was assigned to the Second Chamber.

13 As the written part of the procedure took place before the present case was transferred to the General Court, the Court questioned the parties, through letters sent by the Registry on 9 November 2016, as to whether a hearing should be held.

– annul the decision refusing permission to publish and, ‘so far as necessary’, the decision rejecting the complaint;

17 It should be emphasised that the applicant has brought the present action against the decision refusing permission to publish and, ‘so far as necessary’, against the decision rejecting the complaint.

18 In that regard, it should be borne in mind that an administrative complaint and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. That being so, the action, even if formally directed against the rejection of the complaint, has the effect of bringing before the court the act adversely affecting the applicant against which the complaint was lodged, except where the rejection of the complaint has a different scope from that of the measure against which the complaint was lodged. An express decision rejecting a complaint may, in the light of its content, not be confirmatory of the measure contested by the applicant. That is the case where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such circumstances, the rejection of the complaint constitutes a measure subject to review by the judicature, which will take it into consideration when assessing the legality of the contested measure or will even regard it as an act adversely affecting the applicant replacing the contested measure (see judgment of 21 May 2014, Mocová v Commission, T‑347/12 P, EU:T:2014:268, paragraph 34 and the case-law cited).

19 Furthermore, that view is also supported by the consideration that the supplementary argument, at the time of the decision to reject the complaint, is in accordance with the purpose of Article 90(2) of the Staff Regulations, pursuant to which the decision on the complaint is itself to be reasoned. That provision necessarily implies that the authority required to rule on the complaint is not bound solely by the reasons for the decision that is the subject of the complaint, which may be inadequate or non-existent in the case of an implied rejection decision (see judgments of 21 May 2014, Mocová v Commission, T‑347/12 P, EU:T:2014:268, paragraph 35 and the case-law cited, and of 17 January 2017, LP v Europol, T‑719/15 P, not published, EU:T:2017:7, paragraph 19 and the case-law cited).

20 In the present case, as is apparent from paragraphs 3, 8 and 9 above, the decision rejecting the complaint alters neither the meaning nor the scope of the decision refusing permission to publish. Indeed, the decision rejecting the complaint, first, continues to refuse permission to publish the text at issue and, second, restricts the requirement for changes to be made to that text prior to publication to the two paragraphs that were identified in the decision refusing permission to publish.

21 However, the statement of reasons set out in the decision rejecting the complaint differs in part from that set out in the decision refusing permission to publish. In the decision refusing permission to publish, permission to publish the text at issue was refused on the basis of a breach of ‘loyalty and reserve’, on the ground that the applicant, without any supporting evidence, directly attributed to the EEAS management specific conduct amounting to a violation of the Staff Regulations. By contrast, the decision rejecting the complaint is based, in essence, on the existence of a real risk of serious prejudice to the interests of the Union within the meaning of Article 17a of the Staff Regulations. More specifically, it considered, first, that the breach of ‘loyalty and reserve’ constituted, per se, a real risk of serious prejudice to those interests, second, that the text at issue was not substantiated by any evidence to support the claims set out therein and, third, that the paragraphs at issue denied the existence of a policy to combat harassment within the European institutions.

22 Thus, it must be held that the decision rejecting the complaint contains an additional statement of reasons which explains and develops the statement of reasons set out in the measure against which that complaint was lodged, namely the decision refusing permission to publish.

23 Given that that statement of reasons explains and supplements the statement of reasons set out in the decision refusing permission to publish, and in view of the evolving nature of the pre-litigation procedure, the statement of reasons for the decision rejecting the complaint must be taken into account in reviewing the lawfulness of the decision refusing permission to publish.

24 In support of her application for annulment, the applicant raises two pleas in law. The first plea in law alleges breach of the right to freedom of expression. The second plea in law alleges an error of assessment as regards the breach of ‘the duty of loyalty and reserve’.

25 The Court considers it appropriate to begin by examining the second plea in law.

Second plea in law: manifest error of assessment as regards the breach of the duty of loyalty

26 In the second plea in law, the applicant raises as her first complaint the fact that the appointing authority wrongly considered that the first, fourth to seventh, thirteenth and nineteenth paragraphs of the text at issue deny the existence of a policy, within the EEAS and the European Union, to combat harassment. The applicant claims that, in those paragraphs, she simply expressed the view that harassment was a widespread phenomenon and that it might hamper the authority of the EEAS and, hence, the European Union on the world stage. However, in the text at issue, the applicant does not argue that harassment would ‘endanger the proper operation of the service’ or that ‘no remedy would be available’. In any event, the text at issue cannot be regarded as ‘conduct detrimental to the dignity and respect due to the institution’ within the meaning of the applicable case-law.

27 In a second complaint, the applicant emphasises that the appointing authority made a ‘manifest’ error of assessment in considering that, in the second and sixth paragraphs of the text at issue, she viewed her employer as an enemy and had a long-term distrust towards that employer. The applicant claims that if the paragraphs in question referred to a ‘war’, it was a war ‘within the European institutions’ and not against those institutions.

28 In a third complaint, the applicant argues that the appointing authority wrongly considered that it could be inferred from the third and fifteenth paragraphs of the text at issue that ‘widespread harassment has caused many staff members to end up on long-term sick leave or invalidity’. In that regard, the applicant submits that she never ventured any figure with respect to the persons who had ended up on long-term sick leave or invalidity, and therefore it cannot be inferred from the text at issue that there are ‘many’ people falling within that category. Moreover, even if the applicant expressed the opinion that harassment was a widespread phenomenon and that many colleagues had ended up on long-term sick-leave or invalidity, the appointing authority was wrong to consider that that opinion reflected conduct detrimental to the dignity and respect due to the institution.

29 In a fourth complaint, the applicant submits that the appointing authority misinterpreted the eighteenth paragraph of the text at issue in considering that it stated that the EEAS and the European Union ‘would not set an example’ with their policy for dealing with cases of harassment within their departments. According to the applicant, the paragraph in question merely stated that the EEAS should be exemplary: it did not state that the EEAS was not exemplary, but simply suggested that more could be done in that respect.

30 In a fifth complaint, the applicant argues that the paragraphs at issue neither contained insult nor expressed any disrespect, aggressiveness or other form of malice, and that they were no more than a manifestation of her freedom of expression, which included the right to express opinions dissenting from or conflicting with those held by her employing institution, even if those opinions might offend, shock or disturb.

31 In a sixth complaint, the applicant submits that the appointing authority made a ‘manifest’ error of assessment in considering that the paragraphs mentioned above breached the ‘duty of loyalty and reserve’ which she owed the institution as an official.

33 As a preliminary point, it should be noted that it is apparent from paragraphs 3, 4, 8 and 9 above that, first, the decision refusing permission to publish confined itself to stating that two paragraphs of the text at issue, namely the fifth and eighteenth paragraphs, were in breach of the ‘loyalty and reserve’ owed by the applicant as an EU official and, second, that the decision rejecting the complaint had maintained that restriction to two paragraphs.

34 Accordingly, although it is true that the decision rejecting the complaint contains comments on other paragraphs of the text at issue, those comments cannot be regarded as anything other than obiter dicta.

35 It follows that the complaints concerning paragraphs of the text at issue other than the fifth and eighteenth paragraphs are ineffective, given that they have no useful effect on the lawfulness of the decision refusing permission to publish.

36 Thus, it must be found, first, that the first complaint is partly ineffective in so far as it refers to the first, fourth, sixth, seventh, thirteenth and nineteenth paragraphs of the text at issue and, second, that the second and third complaints are ineffective in their entirety.

37 Accordingly, it is only necessary to examine the first and fourth to sixth complaints in so far as they refer to the paragraphs at issue.

38 In the first and fourth complaints, the applicant argues that the appointing authority wrongly considered that the paragraphs at issue, first, deny the existence of a policy, within the EEAS and the European Union, to combat harassment and, second, state that the EEAS and the European Union ‘would not set an example’ with their policy for dealing with cases of harassment within their departments.

39 In that regard, it is necessary to recall the text of the paragraphs at issue:

The EEAS has to set an example in its internal application of rights, organizational transparency and rule of law — or we will not be credible on the international stage.’

40 It should also be borne in mind that those paragraphs are included in a text which concerns the issue of harassment within the European institutions. The fifth paragraph of the text at issue describes, in particular, a ‘modus operandi of the hierarchy of the European institutions’, and adds that ‘superiors can go on harassing certain subordinates and grooming favourites’ in a way that is ‘systematic’. Thus, in that context, that statement, which makes use in particular of the words ‘modus operandi’ and ‘systematic’, implies that harassment is a widespread phenomenon within the hierarchy of the European institutions.

41 In addition, the eighteenth paragraph of the text at issue states that the EEAS ‘has to set an example in its internal application of rights, organizational transparency and rule of law’. It follows that the EEAS is not ‘an example’ in the fight against harassment. In other words, that institution is failing to set ‘an example’ with its policy for dealing with cases of harassment within its departments.

42 Moreover, the eighteenth paragraph of the text at issue picks up the idea, already implied by the fifth paragraph thereof, that there is no effective policy for combating harassment within the EEAS and, by extension, within the EU institutions.

43 Furthermore, those conclusions are confirmed by the applicant herself in the application. In paragraph 44 of the application she concedes that, in the text at issue, she ‘[expressed] the opinion that harassment [was] a widespread phenomenon and her concern that it might hamper the authority of the EEAS and, hence, the [European Union] on the world stage’.

44 It follows that the appointing authority did not make an error of assessment in its interpretation of the paragraphs at issue.

46 In the fifth complaint, the applicant submits, in essence, that the paragraphs at issue neither contain insult nor express any disrespect, aggressiveness or other form of malice, and that they are no more than a manifestation of her freedom of expression.

47 However, as is apparent from paragraphs 3 and 9 above, the decision refusing permission to publish was not taken on the ground that the text at issue contains insults or expresses any disrespect, aggressiveness or other form of malice. Indeed, the statement of reasons for the decision refusing permission to publish refers to the fact that the paragraphs at issue were in breach of the ‘loyalty and reserve’ which the applicant owed the institution as an EU official.

48 Accordingly, given that the appointing authority did not consider that the paragraphs at issue either contained insults or expressed any disrespect, aggressiveness or other form of malice, the fifth complaint must be rejected as unfounded.

49 Lastly, in the sixth complaint, the applicant argues that the appointing authority made a ‘manifest’ error of assessment in considering that the paragraphs at issue were in breach of the ‘duty of loyalty and reserve’ which she owed the institution as an EU official.

50 In that regard, it is necessary to recall the principles stemming from the provisions governing relations between the European Union and its officials and other employees.

51 Thus, first of all, according to the first paragraph of Article 11 of the Staff Regulations, an official is to carry out his duties and conduct himself solely with the interests of the Union in mind. The same provision requires an official to carry out the duties assigned to him objectively, impartially and in keeping with his duty of loyalty to the European Union.

52 Next, according to Article 12 of the Staff Regulations, an official is to refrain from any action which might reflect adversely upon his position.

53 In addition, according to Article 12b(1), an official is required to obtain the permission of the appointing authority beforehand in order to engage in an outside activity, whether paid or unpaid.

54 Last and most importantly, according to Article 17a(1) of the Staff Regulations, an official has the right to freedom of expression, with due respect to the ‘principles of loyalty and impartiality’. That article specifically sets out, as do Articles 11, 12 and 12b, the duty of loyalty incumbent upon every official. By virtue of that duty, an official must, inter alia, refrain from conduct detrimental to the dignity and respect due to the institution and its authorities (see, regarding the duty of loyalty in the context of Article 17a of the Staff Regulations, judgment of 23 October 2013, Gomes Moreira v ECDC, F‑80/11, EU:F:2013:159, paragraph 61 and the case-law cited).

55 Moreover, it should be emphasised that it is apparent from case-law that an official may not, by oral or written expression or by actions of any other nature, act in breach of his obligations, arising inter alia from Articles 11, 12, 12b and 17a of the Staff Regulations, towards the European Union that he is supposed to serve, thereby destroying the relationship of trust between himself and the latter and making it thereafter more difficult, if not impossible, for the work of the European Union to be carried out in cooperation with that official (judgment of 6 March 2001, Connolly v Commission, C‑274/99 P, EU:C:2001:127, paragraph 47).

56 Furthermore, it should also be stated that it is apparent, inter alia, from the references in the first paragraph of Article 11 of the Staff Regulations to ‘duties’ and ‘conduct’, Article 12 of those regulations to ‘any action’, and Article 12b thereof to ‘an outside activity’, that the preservation of the relationship of trust is required not only in the performance of specific tasks entrusted to an official but extends to the whole relationship between the official and the European Union (judgment of 23 October 2013, Gomes Moreira v ECDC, F‑80/11, EU:F:2013:159, paragraph 65; see also, to that effect, judgment of 26 November 1991, Williams v Court of Auditors, T‑146/89, EU:T:1991:61, paragraph 72).

57 As a preliminary point, it should be noted that the decision refusing permission to publish concludes that the paragraphs at issue were in breach of ‘loyalty and reserve’. However, it is clear from that decision that it concerns, in reality, a breach of the duty of loyalty and that the duty of reserve is merely referred to therein without having any impact whatsoever in the present case. Accordingly, the error of assessment invoked by the applicant must be examined in the light of the duty of loyalty alone.

58 In the present case, it must be found that the paragraphs at issue contain denigrating statements, impugning the honour of all those persons who hold positions in the hierarchy of the European institutions. Contrary to what the applicant claims, the assertions that there is a ‘modus operandi of the European institutions’ or a ‘systematic’ practice which enables superiors to ‘go on harassing certain subordinates and grooming favourites’ and that the EEAS is failing to ‘set an example in its internal application of rights, organizational transparency and rule of law’ cannot be qualified as mere dissenting or conflicting opinions. Those phrases must be regarded as likely, per se, to undermine the dignity of all those persons who hold positions in the hierarchy of the European institutions and hence to undermine the institutions themselves.

59 As the EEAS contends, harassment is an unlawful practice which may jeopardise the proper operation of an institution, especially if, as is asserted by the text at issue, it is widespread. Statements suggesting grossly reprehensible conduct, such as harassment, on the part of the hierarchy of the European institutions, on the one hand, and a lack of suitable measures to combat such conduct within the institutions, on the other, are capable of undermining both the image of and the dignity and respect due, as a general rule, to all persons who hold a position in the hierarchy of the institutions and, hence, the institutions themselves, in particular the EEAS. Those statements therefore constitute a breach of the duty of loyalty.

60 It follows that the appointing authority was correct to consider that the assertions made in the paragraphs at issue were in breach of the duty of loyalty owed by the applicant as an official.

62 Having regard to all of the foregoing, the second plea in law must be rejected in its entirety as being in part ineffective and in part unfounded.

63 In her first plea in law, the applicant claims, in essence, that, by failing to demonstrate that the text at issue was liable seriously to prejudice the legitimate interests of the Union and by refusing to grant her permission to publish the text at issue, the appointing authority infringed Article 17a of the Staff Regulations and, accordingly, breached her right to freedom of expression under Article 10 ECHR and Article 11 of the Charter of Fundamental Rights.

64 In that regard, the applicant divides this plea into three parts. The first part disputes the claim that a breach of ‘the duty of loyalty and reserve’ constitutes a real risk of serious prejudice to the legitimate interests of the Union; the second part calls in question the requirement that an official who wishes to publish a press article must have evidence to back up their statements; and the third part disputes the claim that the paragraphs at issue deny the existence of a policy to combat harassment within the EU institutions.

– First part of the first plea in law, disputing the claim that a breach of the duty of loyalty constitutes a real risk of serious prejudice to the legitimate interests of the Union

65 In the first place, the applicant submits that the judgment of 23 October 2013, Gomes Moreira v ECDC (F‑80/11, EU:F:2013:159), on which the appointing authority relied when stating that a breach of the ‘duty of loyalty and reserve’ constituted, per se, a risk of serious prejudice to the general public interest, cannot be applied to the present case. According to the applicant, the facts which gave rise to that judgment are not comparable to those at issue in the present case, since that judgment was not handed down in the context of a request for permission to publish, but rather in the context of the termination of a contract of employment.

67 In that regard, it should be pointed out that the decision rejecting the complaint refers to paragraphs 62 and 64 of the judgment of 23 October 2013, Gomes Moreira v ECDC (F‑80/11, EU:F:2013:159), in order to substantiate the conclusion that ‘a breach of the duty of loyalty and reserve constituted, per se, a risk of serious prejudice to the general public interest’.

68 However, the reference to the judgment of 23 October 2013, Gomes Moreira v ECDC (F‑80/11, EU:F:2013:159), does not constitute the specific basis of the decision rejecting the complaint. Indeed, the reason given for the decision rejecting the complaint is the conclusion that ‘a breach of the duty of loyalty and reserve constituted, per se, a risk of serious prejudice to the general public interest’ and not the citation of the judgment of 23 October 2013, Gomes Moreira v ECDC (F‑80/11, EU:F:2013:159), as such.

69 Consequently, the lawfulness of the decision rejecting the complaint cannot be called in question by a possible error concerning the case-law references used to substantiate that decision.

71 In the second place, the applicant argues, in essence, that the appointing authority refers to a risk of serious prejudice to ‘the general public interest’, whereas Article 17a of the Staff Regulations refers only to a risk of prejudice to ‘the legitimate interests of the Union’. These are two different concepts which are not interchangeable.

73 In that regard, it is sufficient to observe that, contrary to what the applicant claims, the decision rejecting the complaint at no point confuses the two concepts of the ‘general public interest’ and the ‘legitimate interests of the Union’. As is apparent from the passage reproduced below, the decision rejecting the complaint merely indicates that the protection of the ‘interests of the European Union’ is one of a number of objectives of ‘general public interest’:

‘As the Court qualified it, Article 17a [of the Staff Regulations] therefore constitutes the permanent search to find the right balance between the guaranteed exercise of the fundamental right, e.g., the freedom of expression, and the protection of an objective of general public interest, e.g., the protection against the potential prejudice to the interests of the European Union to which publication of the relevant text may give rise [Case T‑82/99, Cwik v Commission, EU:T:2000:193, paragraph 52, and Case C‑340/00 P, Commission v Cwik, EU:C:2001:701, paragraph 19].’

75 In the third place, the applicant argues that the presumption relied on by the appointing authority to the effect that a breach of the ‘duty of loyalty and reserve’ constitutes, per se, a risk of serious prejudice to the legitimate interests of the Union cannot be derived from case-law. According to the applicant, even if it were to be accepted that such a breach could be inferred from the text at issue, that would not, ipso facto, permit the conclusion that publication of the text at issue constituted a real risk of serious prejudice to the interests of the Union.

77 In that regard, it should be borne in mind that, according to settled case-law, officials and other employees of the European Union enjoy the right to freedom of expression, even in areas falling within the scope of the work of the EU institutions. That freedom extends to the expression, orally or in writing, of opinions that dissent from or conflict with those held by the employing institution (see judgment of 6 March 2001, Connolly v Commission, C‑274/99 P, EU:C:2001:127, paragraph 43 and the case-law cited).

78 Nevertheless, according to equally settled case-law, freedom of expression may be subject to the limitations set out in Article 10(2) ECHR, pursuant to which the exercise of that freedom, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society (see judgment of 13 December 2012, Strack v Commission, T‑199/11 P, EU:T:2012:691, paragraph 137 and the case-law cited).

79 In particular, it is legitimate to subject officials, on account of their status, to obligations such as those contained in Articles 11, 12 and 17a of the Staff Regulations. Such obligations, which admittedly constitute restrictions on the exercise of freedom of expression, are intended to preserve the relationship of trust which must exist between the institution and its officials and may be justified by the legitimate aim of protecting the rights of others under Article 10(2) ECHR (judgments of 6 March 2001, Connolly v Commission, C‑274/99 P, EU:C:2001:127, paragraph 44, and of 13 December 2012, Strack v Commission, T‑199/11 P, EU:T:2012:691, paragraph 138).

80 In addition, it should be noted that it is apparent from Article 17a(2) of the Staff Regulations that an official must neither publish nor cause to be published, whether alone or with others, any matter dealing with the work of the European Union without the appointing authority’s permission. However, that permission may not be refused unless the planned publication is liable ‘seriously to prejudice the legitimate interests of the Union’.

81 In that regard, according to case-law, Article 17a(2) of the Staff Regulations provides that, in principle, permission is to be granted and may be refused only in exceptional cases. In so far as that provision enables institutions to refuse permission to publish, and thus potentially interfere to a serious extent with freedom of expression, one of the fundamental pillars of a democratic society, it must be interpreted restrictively, in such a way that permission to publish is refused only where publication is liable to cause serious harm to the interests of the Union (see judgment of 13 December 2001, Commission v Cwik, C‑340/00 P, EU:C:2001:701, paragraphs 17 and 18 and the case-law cited).

82 Such rules reflect the relationship of trust which must exist between an employer and its employees, and the way in which the rules are applied can be assessed solely in the light of all the relevant circumstances and the implications thereof for the performance of public duties (judgment of 6 March 2001, Connolly v Commission, C‑274/99 P, EU:C:2001:127, paragraph 56).

83 It follows that, in exercising their power of review, the Courts of the European Union must decide, having regard to all the circumstances of the case, whether a fair balance has been struck between the individual’s fundamental right to freedom of expression and the legitimate concern of the institution to ensure that its officials and other employees observe the duties and responsibilities implicit in the performance of their tasks (judgment of 6 March 2001, Connolly v Commission, C‑274/99 P, EU:C:2001:127, paragraph 48).

84 In the present case, it should be borne in mind that, as has already been concluded in paragraphs 50 to 60 above, the appointing authority did not make an error of assessment in considering that the paragraphs at issue were in breach of the duty of loyalty owed by the applicant as an official.

85 Indeed, as has already been established in paragraphs 39 to 43 above, it is apparent from the paragraphs at issue that, first, there is a widespread phenomenon of harassment by persons who hold positions in the hierarchy of the European institutions and, second, those institutions do not have an effective policy for combating that serious problem.

86 In those circumstances, as has been established in paragraphs 58 to 60 above, the publication by an official of a text including paragraphs such as the paragraphs at issue would constitute a breach of the duty of loyalty of the official concerned, since that publication could have a serious negative effect on the image and the dignity of those persons who hold positions in the hierarchy of the EU institutions, as well as of the institutions in general and the EEAS in particular.

87 In that regard, it should be borne in mind that, according to Article 17a(1) of the Staff Regulations, an official has the right to freedom of expression, with due respect to, inter alia, the principle of loyalty (see paragraph 54 above).

88 In addition, protecting the European institutions against assertions which may have a serious negative effect on their image constitutes, per se, an objective of general public interest and, more specifically, a legitimate interest of the Union.

89 Accordingly, given that the paragraphs at issue are likely seriously to undermine the image and the dignity of the European institutions, the publication of the text at issue would be liable seriously to prejudice the legitimate interests of the Union.

90 In any event, it should be noted that the right balance between guaranteeing the right to freedom of expression and protecting the legitimate interests of the Union has been struck in the present case. The restriction on freedom of expression imposed by the decision refusing permission to publish was limited to two paragraphs out of the 24 included in the text at issue, which gave the applicant ample opportunity to submit a revised text.

91 It follows that the appointing authority was entitled to conclude that the publication of a text including paragraphs such as the paragraphs at issue was liable seriously to prejudice the legitimate interests of the Union within the meaning of Article 17a(2) of the Staff Regulations.

92 Accordingly, the first part of the first plea in law must be rejected as being in part ineffective and in part unfounded.

– Second part of the first plea in law, disputing the requirement that an official who wishes to publish an article must have evidence to back up their statements

93 The applicant submits, in essence, that (i) the appointing authority’s requirement that an official who wishes to make a publication must have evidence to back up their statements constitutes a restriction on the exercise of freedom of expression, (ii) such a restriction is not provided for by law and (iii) even if such provision were made, that requirement would be disproportionate.

95 In that regard, it should be emphasised, first of all, that the assertions contained in the paragraphs at issue, concerning a supposed phenomenon of widespread harassment on the part of the hierarchy of the European institutions and the purported non-existence of any policy to combat that phenomenon, use vague and general wording, without any specific evidence being provided to support those assertions. Next, it is necessary to note the serious nature of those assertions, given that they suggest allegedly widespread, grossly reprehensible or even unlawful conduct on the part of persons who hold positions in the hierarchy of the institutions. Lastly, it should be observed that those assertions were likely to have a negative effect on the image and the dignity of the institutions themselves and, consequently, were liable seriously to prejudice the legitimate interests of the Union.

96 In the present case, contrary to what the applicant claims, the requirement is not that an official who wishes to make a publication must have ‘evidence to back up their statements’. Rather, the requirement is that assertions which may attribute grossly reprehensible or even unlawful conduct to an indeterminate group of persons within the hierarchy of the institutions must be clarified and substantiated.

97 Accordingly, this second part of the first plea in law must be rejected as unfounded.

– Third part of the first plea in law, disputing the claim that the paragraphs at issue deny the existence of a policy to combat harassment within the EU institutions

98 The applicant argues that the appointing authority’s claim that the paragraphs at issue would deny the existence of a policy to combat harassment within the EU institutions is not supported, factually speaking. She emphasises that, while the text at issue concerns the issue of harassment within the EU institutions, which she considers to be widespread, she never stated that there was no policy to tackle that issue. In any event, any denial of the existence of a policy to combat harassment should be regarded only as an opinion dissenting from or conflicting with that held by the institution and is therefore not capable of constituting a real risk of serious prejudice to the legitimate interests of the Union.

100 In that regard, it is sufficient to observe that, for the reasons already set out in paragraphs 58 and 59 above, the paragraphs at issue cannot be perceived as mere opinions dissenting from or conflicting with those held by the institution but must be regarded as likely, per se, to undermine the dignity of the institutions concerned.

101 Accordingly, this third part of the first plea in law must be rejected as unfounded.

102 Having regard to all of the foregoing, it must be concluded that, contrary to what the applicant claims, the appointing authority, in taking the decision refusing permission to publish, did not infringe Article 17a of the Staff Regulations and hence did not breach her right to freedom of expression.

103 Accordingly, the first plea in law must be rejected as being in part ineffective and in part unfounded and, consequently, the action must be dismissed in its entirety.

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

105 As the applicant has been unsuccessful, she must be ordered to pay the costs in accordance with the form of order sought by the EEAS.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Skareby v EEAS (Staff Regulations of officials and Conditions of Employment of other servants : Judgment) [2017] EUECJ T-585/16 (15 September 2017) URL: http://www.bailii.org/eu/cases/EUECJ/2017/T58516.html Cite as: EU:T:2017:613, ECLI:EU:T:2017:613, [2017] EUECJ T-585/16

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