XH v Commission (Civil service - Psychological harassment - Judgment) [2023] EUECJ T-613/21 (22 November 2023)

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(Civil service – Officials – Decision opening an invalidity procedure – Claim for annulment – Act not amenable to review – Inadmissibility – Psychological harassment – Administrative investigation – Article 12a of the Staff Regulations – Request for assistance – Rejection of the request – Article 24 of the Staff Regulations – Rule of correspondence – Principle of good administration – Right to be heard – Rules of evidence – Prima facie evidence – Error of assessment – Right to respect for private life – Right to the protection of personal data – Liability – Non-material damage)

European Commission, represented by T. Lilamand and L. Vernier, acting as Agents,

composed of R. da Silva Passos (Rapporteur), President, S. Gervasoni and T. Pynnä, Judges,

having regard to the request for a hearing lodged by the applicant and having decided, pursuant to Article 106(1) of the Rules of Procedure of the General Court, to open the oral part of the procedure,

having regard to the requests for a postponement of the hearing lodged by the applicant with the Court Registry on 7 February, 15 March, 17 and 19 April 2023,

1 By her action based on Article 270 TFEU, the applicant, XH, seeks 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 compensation for the damage she alleges she has suffered.

2 The applicant has been an official in the European Anti-Fraud Office (OLAF) since [confidential].

3 Until 16 June 2020, the applicant held the post of investigator in the unit formerly designated as Unit A of OLAF. Within that unit, she was, inter alia, responsible for cases in [confidential] language. In particular, she was handling, as lead investigator, three ongoing cases, namely E, F and G.

4 An internal reorganisation of OLAF came into effect on 16 June 2020. Following that reorganisation, and having regard to the preferences expressed by the applicant, she was assigned, as from that date, to a new unit within OLAF, namely Unit B. However, cases [confidential] were to be handled by Unit C.

5 Between 2 and 22 June 2020, the applicant 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’ (‘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.

6 On 2 June 2020, the applicant sent an email to members of Unit A, which contained a summary of one of the three cases referred to in paragraph 3 above, namely 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.

7 On 8 June 2020, a member of Unit A sent an email to the applicant and the Head of Unit A. That email concerned the three cases referred to in paragraph 3 above and contained comments and suggestions for the next stages. The Head of Unit A replied that, given the fact that the applicant was on leave, that member of Unit A 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 applicant’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 applicant and the Head of Unit A. The applicant replied to that email and stated 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.

8 Also on 8 June 2020, the applicant sent an email to a colleague entrusted with the role of ‘confidential counsellor’. In that email, the applicant sent him the exchanges referred to in paragraph 7 above and asked him for advice on her situation.

9 On the same day, the secretary to Unit A (‘the secretary of Unit A’) sent the applicant an email concerning the applicant’s change of office in connection with OLAF’s internal reorganisation referred to in paragraph 4 above. In that email, she asked the applicant 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 applicant replied on the same day that she preferred to take care of that herself.

10 On 9 June 2020, the Head of Unit C replied to the emails referred to in paragraph 7 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.

11 On 23 June 2020, the Head of Unit C sent an email to the applicant in order to discuss the draft final report in Case E. In that email, she asked the applicant to call her if available. On the same day, she sent the applicant an invitation to a video call scheduled for the following day, namely 24 June 2020. The applicant 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.

12 Also on 23 June 2020, the applicant sent an email to the confidential counsellor, referred to in paragraph 8 above, containing the invitation by the Head of Unit C to the video call referred to in paragraph 11 above. In that email, she explained that she had a scheduled hospital visit 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’.

13 On 30 June 2020, the secretary of Unit A sent the applicant a second email asking her whether she had reached a decision concerning her office move.

14 On 1 July 2020, the Head of Unit C sent the applicant two emails in which she asked the applicant questions concerning Case E. The applicant replied on 6 July 2020.

15 On 1 August 2020, the applicant lodged a request for assistance with the competent appointing authority, pursuant to Articles 24, 59 and 60 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’). In her request, the applicant 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.

16 On 26 August 2020, the Head of Unit C sent the applicant an email which contained a new draft final report in Case E. In that email, the Head of Unit C asked the applicant, first, whether she approved of its contents and, second, if she could carry out a check with the European Patent Office (EPO). The applicant 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 applicant upon her return. The applicant 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.

17 On 31 August 2020, the Head of Unit C sent an email to the applicant, 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 applicant to close those cases upon her return from leave, in line with what had been agreed. On the same day, she sent the applicant 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 applicant had to deal with them only once back from sick leave.

18 On 6 September 2020, the applicant replied that her sick leave had been extended and that the cases at issue could be closed without her.

19 On 7 September 2020, the applicant signed electronically a declaration of conflict of interest in Case G, in OLAF’s content management software (OCM).

20 On 8 September 2020, the Head of Unit C informed the applicant 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 applicant, the third case, namely Case G referred to in paragraph 19 above. The Head of Unit C asked the applicant to send her the missing information concerning that third case if, in the meantime, she would return from her sick leave.

21 On 11 September 2020, the applicant received an email from a colleague from Unit C, congratulating her on her success in a case heard before the General Court.

22 On 17 September 2020, the applicant received, from that same colleague, another email containing a link to the judgment delivered by the Court.

23 On 18 September 2020, the Head of Unit C sent the applicant an email informing her that she had seen the declaration of conflict of interest referred to in paragraph 19 above. Furthermore, in order to allow for a decision on that declaration to be reached, she requested the applicant to provide additional information on the conflict of interest in question. The applicant complied with that request on 20 September 2020.

24 On 25 September 2020, the Head of Unit C sent the applicant an email in order to inform her that the situation of conflict of interest had been endorsed and that the applicant was released from her last pending case. She thus concluded that the applicant had no more cases within her unit.

25 On 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 applicant. That request was based on the fact that, for the period from November 2017 until October 2020, namely a period of three years, the combined sick leave taken by the applicant exceeded 12 months.

26 On 4 December 2020, the competent appointing authority adopted a decision rejecting the applicant’s request for assistance referred to in paragraph 15 above.

27 On 28 February 2021, the applicant lodged a complaint under Article 90(2) of the Staff Regulations challenging the decision rejecting the request for assistance.

28 On 6 May 2021, a video call was organised between, on the one hand, the applicant and, on the other, the Investigation and Disciplinary Office (IDOC) and the HR.E.2 Unit (Appeals and Case Monitoring) of the Commission.

29 On 10 May 2021, the applicant was sent a summary of her arguments put forward during that video call.

30 On 11 May 2021, the applicant submitted her comments on that summary and sent documents.

31 On 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 it referred the applicant’s case to the Invalidity Committee and appointed a doctor to represent the Commission, in accordance with the provisions of Article 7 of Annex II to the Staff Regulations.

32 On 31 May 2021, the applicant lodged a complaint under Article 90(2) of the Staff Regulations challenging the decision opening the invalidity procedure.

33 On 2 July 2021, the competent 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 applicant’s claims. Furthermore, the competent appointing authority rejected the claim for compensation for the damage allegedly sustained.

34 On 30 September 2021, the competent appointing authority adopted Decision R/301/21 rejecting the applicant’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 applicant against the decision opening the invalidity procedure was inadmissible.

– annul, first, the decision rejecting the request for assistance and Decision R/138/21 rejecting the complaint, and second, the decision opening the invalidity procedure and Decision R/301/21 rejecting the complaint;

– order the Commission to pay her the sum of EUR 20 000 by way of compensation for the non-material damage sustained;

37 By her first head of claim, the applicant sets out various claims for annulment. In support of those claims, she makes several requests for the adoption of measures of organisation of procedure or measures of inquiry. By her second head of claim, the applicant seeks compensation for the damage that she alleges she has suffered. It is appropriate to examine in turn, first, the claims for annulment, second, the claim for damages and, lastly, the requests for the adoption of measures of organisation of procedure or measures of inquiry.

38 By her first head of claim, first, the applicant seeks, inter alia, annulment of the decision opening the invalidity procedure and Decision R/301/21 rejecting the complaint. Second, she seeks annulment of the decision rejecting the request for assistance and Decision R/138/21 rejecting the complaint.

39 As a preliminary point, it must be stated that, according to settled case-law, claims for annulment formally directed against the decision rejecting a complaint have the effect of bringing before the Court the act against which the complaint was submitted where those claims as such lack any independent content (see judgment of 20 November 2007, Ianniello v Commission, T‑205/04, EU:T:2007:346, paragraph 27 and the case-law cited; see also, to that effect, judgment of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8), which is the case here. It must therefore be stated that the sole purpose of the first head of claim, directed, first, against the decision opening the invalidity procedure and the decision rejecting the request for assistance, and second, against Decision R/301/21 rejecting the complaint and Decision R/138/21 rejecting the complaint, is to seek the annulment of the decision opening the invalidity procedure and the decision rejecting the request for assistance (see, to that effect, judgment of 6 April 2006, Camós Grau v Commission, T‑309/03, EU:T:2006:110, paragraph 43).

40 In support of her claim for annulment of the decision opening the invalidity procedure, the applicant alleges, in essence, that the Commission infringed Articles 59 and 90 of the Staff Regulations, read in the light of Articles 12a and 24 thereof, by deciding to open an invalidity procedure against her, even though the number of her days of sick leave in a three-year period did not exceed 12 months as at the date of that decision. In support of those assertions, by document lodged with the Court Registry on 13 June 2023, she submitted various documents which, according to her, showed a lack of impartiality on the part of the person who had informed her of the decision opening the invalidity procedure.

41 In the first place, the Commission raises several pleas of inadmissibility in that regard. First, it submits that the decision opening the invalidity procedure is not an act adversely affecting the applicant within the meaning of Article 90(2) of the Staff Regulations. Second, it claims that the application is unclear on several matters, while the applicant belatedly raises new pleas in law and arguments in the reply and the rule of correspondence has not been complied with in several respects. In the second place, and in any event, the Commission submits that the applicant’s arguments put forward in support of the claim for annulment of the decision opening the invalidity procedure should be rejected as unfounded or ineffective. Furthermore, at the hearing, the Commission claimed that the documents relating to the person who had informed the applicant of the decision opening the invalidity procedure were irrelevant for the purposes of the present dispute, since that person was not, apart from that formal document, involved in that procedure.

42 It is appropriate to examine, first of all, the admissibility of the claim for annulment of the decision opening the invalidity procedure and, in particular, the first plea of inadmissibility alleging that that decision is not an act adversely affecting the applicant within the meaning of Article 90(2) of the Staff Regulations.

43 In that regard, the Commission claims that the decision to refer the case to the Invalidity Committee is not an act adversely affecting the applicant but a preparatory act, the legality of which may be contested only in the context of an action for annulment brought against the final decision taken at the conclusion of the procedure. In particular, the Commission asserts that the applicant is unable to show what effects the decision opening the invalidity procedure, initiated in the absence of any request on her part, has had on her legal position. The alleged psychological effects are irrelevant in that regard. Furthermore, the Commission claims that the fact that that decision has the legal effect of opening the invalidity procedure does not mean that it adversely affects the applicant.

44 In support of her assertion that the action is admissible, the applicant submits, in the reply, that the decision opening the invalidity procedure is an act adversely affecting her, since that decision should not be looked at as an isolated act, but as part of a series of acts and actions of the Commission towards her, resulting in continued harassment. Furthermore, the applicant claims that that decision affects her legal position on the ground that she was under a duty to produce documents relating to her health condition. Furthermore, the possibility of dismissal or retirement led to her being in a poor emotional state and feeling stressed.

45 In that regard, it is settled case-law that acts which come from the competent authority and include a definitive position adopted by the administration which produces binding legal effects capable of directly and immediately affecting the applicant’s interests by bringing about a distinct change in his or her legal position constitute acts adversely affecting that applicant (see judgments of 8 October 2014, Bermejo Garde v EESC, T‑530/12 P, EU:T:2014:860, paragraph 45 and the case-law cited, and of 29 November 2018, WL v ERCEA, T‑493/17, not published, EU:T:2018:852, paragraph 32 and the case-law cited).

46 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. Thus, as regards actions brought by officials, acts preparatory to a decision do not adversely affect a person within the meaning of Article 90(2) of the Staff Regulations (judgments of 17 December 2003, McAuley v Council, T‑324/02, EU:T:2003:346, paragraph 28; of 25 October 2005, Fardoom and Reinard v Commission, T‑43/04, EU:T:2005:374, paragraph 28; and of 29 November 2018, WL v ERCEA, T‑493/17, not published, EU:T:2018:852, paragraph 33).

47 In the present case, the decision opening the invalidity procedure was adopted on the basis of Article 59(4) of the Staff Regulations. In that regard, it has previously been held that a decision to refer an applicant’s case to the Invalidity Committee was a preparatory act which was a step in the procedure for retiring an official and that it was only in connection with an action brought against the decision taken at the conclusion of that procedure that an applicant could contest the legality of earlier steps which were closely linked to it (order of 24 May 1988, Santarelli v Commission, 78/87 and 220/87, EU:C:1988:255, paragraph 13, and judgment of 11 April 2006, Angeletti v Commission, T‑394/03, EU:T:2006:111, paragraph 43; see also, to that effect, order of 25 March 2020, Lucaccioni v Commission, T‑507/19, not published, EU:T:2020:118, paragraphs 39, 41 and 42).

48 Therefore, in accordance with the case-law cited in paragraph 47 above, it should be stated that the decision opening the invalidity procedure is not an act which definitively lays down the Commission’s position in that regard, but is an act preparatory to a final decision to be taken upon the conclusion of the invalidity procedure. The decision opening the invalidity procedure is therefore not an act adversely affecting the applicant within the meaning of Article 90(2) of the Staff Regulations.

49 Accordingly, the claim for annulment of the decision opening the invalidity procedure must be rejected as inadmissible, without it being necessary to examine the other pleas of inadmissibility raised by the Commission or the parties’ arguments concerning the substance.

The claim for annulment of the decision rejecting the request for assistance

50 In support of her claim for annulment of the decision rejecting the request for assistance, the applicant relies on four pleas in law.

51 The first plea in law alleges infringement of Articles 12a and 24 of the Staff Regulations, the duty of care, and Articles 7 and 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and failure to observe the principle of good administration. The first part of that plea alleges failure to observe the principle according to which the alleged victim is not obliged to provide evidence of the harassment. The second part alleges that the competent appointing authority failed to take account of the elements provided by the applicant and, more specifically, of her medical documents. The third part alleges that the competent appointing authority based its assessment solely on the findings of the alleged harasser and refused to exercise its power to review and assist. The fourth part alleges infringement of Article 41 of the Charter and failure to observe the principle of good administration.

52 The second plea in law alleges infringement of Articles 12a, 24, 59 and 60 of the Staff Regulations. The applicant claims, in that regard, that she was required to work during sick leave which entailed total incapacity for work on her part and that, in that context, she was set unattainable objectives.

53 As regards the third plea in law, the applicant confirmed at the hearing that she is relying on it in support of her claim for annulment of the decision rejecting the request for assistance. That plea alleges infringement of Articles 59 and 90 of the Staff Regulations, read in the light of Articles 12a and 24 thereof, on the ground that the competent appointing authority opened an invalidity procedure at a date on which the applicant had not attained the required duration of sick leave.

54 The fourth plea in law alleges infringement of Articles 7 and 8 of the Charter. The applicant submits that the failure to respect her private life and health is a result of repetitive requests to provide active work during her sick leave. Furthermore, she claims that her right to the protection of her personal data was not respected on the ground that she received enquiries from her co-workers about her personal medical data.

55 It is appropriate to examine in turn (i) the fourth part of the first plea in law, (ii) the first part of the first plea, (iii) the second and third parts of the first plea, together with the second and third pleas and, lastly, (iv) the fourth plea.

The fourth part of the first plea in law, alleging failure to observe the principle of good administration

56 By the fourth part of the first plea in law, the applicant submits, in essence, that the competent appointing authority disregarded the right to good administration and, in particular, her right to be heard and Article 41(2)(a) of the Charter, on the ground that, for the purpose of assessing the request for assistance and analysing the alleged harasser’s conduct, it failed to take proper account of all the relevant evidence in her file, in particular her medical documents and the communications she received during her sick leave. She adds that, if that evidence had been taken into consideration properly and included in the IDOC file and in her personal file, the outcome of the assessment of her request for assistance would have been different. She states that her hearing before IDOC was not accurately reflected in the minutes of the meeting with IDOC, since IDOC failed to take account of her presentation of that evidence during that meeting. In the applicant’s submission, the appointing authority and IDOC claimed, by way of explanation, that those documents were covered by medical confidentiality.

57 The Commission raises, in essence, two pleas of inadmissibility and submits, in any event, that the applicant’s arguments are unfounded.

58 As regards the first plea of inadmissibility, alleging failure to comply with the rule of correspondence, according to the Commission, the applicant did not assert an infringement of her right to be heard in her complaint. Thus, the applicant’s arguments relating to such an infringement are inadmissible on account of a failure to comply with the rule of correspondence between the complaint and the action. As regards the second plea of inadmissibility, according to the Commission, the applicant does not specify, as regards the evidence allegedly not taken into consideration by the competent appointing authority, either the evidence to which she is referring or the reason why that evidence should have been taken into consideration as prima facie evidence of harassment. Thus, since the Commission is not in a position to reply to that claim, those arguments are inadmissible in the absence of sufficient details in the application.

59 First, the applicant submits that she has complied with the rule of correspondence. She claims that she based her presentation of the relevant facts before IDOC and in the administrative procedure on her medical documents. She states that she could not know that the competent appointing authority had not taken account of the entirety of those documents until after she learned about the contents of the decision rejecting her request for assistance. Second, she claims that she presented the facts and proof of the alleged harassment in the application.

60 It must be borne in mind that the rule that there should be correspondence between the complaint and the subsequent action requires that, for a plea before the Courts of the European Union to be admissible, it must have already been raised in the pre-litigation procedure, thus enabling the appointing authority to know in sufficient detail the criticisms made of the contested decision (judgments of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 71, and of 25 June 2020, XH v Commission, T‑511/18, EU:T:2020:291, paragraph 57 (not published)).

61 It follows that, in actions brought by officials, claims before the Courts of the European Union may contain only heads of claim based on the same matters as those raised in the complaint, although those heads of claim may be developed before the Courts of the European Union by the presentation of pleas in law and arguments which, while not necessarily appearing in the complaint, are closely linked to it (judgments of 27 October 2016, ECB v Cerafogli, T‑787/14 P, EU:T:2016:633, paragraph 35, and of 25 June 2020, XH v Commission, T‑511/18, EU:T:2020:291, paragraph 58 (not published)).

62 However, first, since the pre-litigation procedure is informal in character and those concerned are acting without the assistance of a lawyer at that stage, the administration must not interpret complaints restrictively. Second, Article 91 of the Staff Regulations should not have the effect of binding, strictly and absolutely, the contentious stage of the proceedings, if any, provided that the action changes neither the legal basis nor the subject matter of the complaint (judgment of 25 June 2020, XH v Commission, T‑511/18, EU:T:2020:291, paragraph 59 (not published); see also, to that effect, judgments of 1 July 1976, Sergy v Commission, 58/75, EU:C:1976:102, paragraph 33, and of 19 November 1998, Parliament v Gaspari, C‑316/97 P, EU:C:1998:558, paragraph 17).

63 Furthermore, a person who has lodged a request for assistance under Articles 12a and 24 of the Staff Regulations on the ground that he or she has been the victim of psychological harassment may rely, by virtue of the principle of good administration, on the right to be heard regarding the facts concerning him or her (see judgment of 4 June 2020, EEAS v De Loecker, C‑187/19 P, EU:C:2020:444, paragraph 66 and the case-law cited).

64 Indeed, Article 41(2)(a) of the Charter provides that the right to good administration includes, inter alia, the right of every person to be heard, before any individual measure which would affect him or her adversely is taken. The right to be heard guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely (judgment of 4 June 2020, EEAS v De Loecker, C‑187/19 P, EU:C:2020:444, paragraphs 67 and 68).

65 In addition, it must be borne in mind that, although for the rights of the defence and the right to be heard to be observed, the EU institutions must enable the person concerned by the act adversely affecting him or her to make his or her views known effectively, those institutions cannot be required to accept those views (see judgment of 12 October 2022, Paesen v EEAS, T‑88/21, EU:T:2022:631, paragraph 110 and the case-law cited).

66 In the present case, in her complaint against the decision rejecting the request for assistance, the applicant claimed that, in that decision, the competent appointing authority had not ‘referred’ exhaustively to all the correspondence that she had submitted and all the facts that she had presented.

67 In that regard, it is true that the right to be heard requires the administration to pay due attention to the observations submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case (judgment of 22 November 2012, M., C‑277/11, EU:C:2012:744, paragraph 88).

68 Nevertheless, that claim made by the applicant in the complaint, read in its context, sought exclusively to challenge the merits of the competent appointing authority’s assessments of her request for assistance. Furthermore, in Decision R/138/21 rejecting the complaint, the competent appointing authority did not interpret that claim as seeking to assert an infringement such as that of the right to be heard.

69 Thus, it must be found that the applicant’s complaint against the decision rejecting the request for assistance does not contain any evidence concerning an alleged infringement of the right to be heard under the guise of the protection of medical confidentiality.

70 Consequently, the plea of inadmissibility alleging failure to comply with the rule of correspondence between the action and the complaint in respect of the right to be heard must be upheld. Accordingly, the applicant’s arguments as regards the fourth part of the first plea in law should be rejected as inadmissible, without it being necessary to examine the second plea of inadmissibility submitted by the Commission in that regard.

71 In any event, it should be stated, first of all, that the applicant was invited to submit her comments on several occasions during the administrative procedure. On 20 November 2020, the applicant was invited to state her views on the contents of a preliminary analysis of her request for assistance, before the appointing authority had adopted the decision rejecting the request for assistance. On 6 May 2021, the applicant discussed, via video call with the Human Resources Unit and IDOC, the contents of her complaint. On 10 May 2021, the applicant was sent a summary of the arguments she had made during that video call. Lastly, on 11 May 2021, the applicant submitted her comments on that summary and sent additional documents, which she has not filed with the Court. It follows that the applicant incorrectly claims that her right to be heard was infringed.

72 Next, assuming that the applicant also maintains that there was a failure to comply with the obligation to state reasons laid down in Article 41 of the Charter and Article 25 of the Staff Regulations, it should be recalled that the reasons given for an act are sufficient when it is adopted in a context known to the official concerned, which enables that official to understand its scope (see judgment of 3 March 2021, Barata v Parliament, T‑723/18, EU:T:2021:113, paragraph 67 and the case-law cited). It follows that a statement of reasons does not need to be exhaustive, but, on the contrary, must be considered sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision (see judgment of 20 October 2021, ZU v Commission, T‑671/18 and T‑140/19, not published, EU:T:2021:715, paragraph 165 and the case-law cited).

73 In the present case, as is apparent from the case-law referred to in paragraph 72 above, the obligation to state reasons did not mean that the competent appointing authority had specifically to address all the documents submitted by the applicant. To that extent, it should be pointed out that it is not apparent from the decision rejecting the request for assistance, supplemented by Decision R/138/21 rejecting the complaint, that there was a failure to comply with that obligation, since those decisions set out sufficient reasons and allowed the applicant to challenge those decisions before the Court and for the Court to examine their lawfulness.

74 Lastly, as regards the applicant’s claim that the competent appointing authority failed to ‘take into account’ the documents that she considered relevant, it must be pointed out, in particular, that in Decision R/138/21 rejecting the complaint, the appointing authority referred to the documents submitted by the applicant on 11 May 2021.

75 It follows from the foregoing that the fourth part of the first plea in law must be rejected as inadmissible and, in any event, as unfounded.

The first part of the first plea in law, relating to the burden of proof applicable to a request for assistance based on alleged harassment

76 The applicant submits that it is not for the victim of alleged harassment to provide evidence supporting his or her situation at the workplace. In that regard, she refers to paragraph 50 of the judgment of 26 March 2015, CN v Parliament (F‑26/14, EU:F:2015:22), in which the Civil Service Tribunal held that ‘neither Articles 12a and 24 of the Staff Regulations nor the internal rules [laid down] the condition that a person who [considered] him or herself to be the victim of harassment is required to provide prima facie evidence of the claims made’.

78 According to settled case-law, 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 the Staff Regulations, it 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 and respond with the rapidity and solicitude required by the circumstances of the case so as to ascertain the facts and, having done so, to take the appropriate action in full knowledge of the matter. To that end, it is sufficient that the official or other staff member who is seeking the protection of his 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 (judgments of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraph 46, and of 14 July 2021, AI v ECDC, T‑65/19, EU:T:2021:454, paragraph 64).

79 With regard to the requirement that the applicant for assistance must provide prima facie evidence that the abusive conduct of which he or she claims to be a victim actually took place, the institution in question cannot be required to carry out an administrative investigation on the basis of mere allegations that are devoid of evidence, it being understood that in determining the measures which it considers appropriate to establish that the alleged facts actually occurred as well as their scope, the institution must also take care to protect the rights of the persons implicated in a request for assistance and liable to be the subject of an investigation (see judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 58 and the case-law cited; judgment of 19 October 2022, JS v SRB, T‑271/20, not published, EU:T:2022:652, paragraph 142).

80 Where, as in the present case, the allegations in the request for assistance concern psychological harassment, it is for the applicant for assistance to provide prima facie evidence of such harassment in the light of the definition in Article 12a(3) of the Staff Regulations (judgment of 9 December 2020, GV v Commission, T‑705/19, not published, EU:T:2020:590, paragraph 80), namely ‘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 person requesting assistance (judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 59).

81 Lastly, as regards the lawfulness of a decision rejecting a request for assistance without an administrative investigation having been opened, the Courts of the European Union must examine the merits of that decision in the light of the information brought to the knowledge of the institution, in particular by the applicant for assistance, when the latter took its decision (see judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 60 and the case-law cited; order of 14 July 2021, AI v ECDC, T‑79/20, not published, EU:T:2021:478, paragraph 65).

82 First, the judgment of 26 March 2015, CN v Parliament (F‑26/14, EU:F:2015:22) cannot be interpreted, as the applicant claims, to the effect that the Civil Service Tribunal sought to reverse the burden of proof and state that it is not for the victim of alleged harassment to provide evidence supporting his or her situation at the workplace. In that judgment, the Civil Service Tribunal merely sought to point out that, where the administration has available to it information other than that submitted by the applicant, the duty to have regard for the welfare of officials required that the administration take account of all the information at its disposal and that it could not limit itself to taking the view that the applicant had not provided prima facie evidence of the alleged harassment.

83 Second, it should be stated that the observation in paragraph 50 of the judgment of 26 March 2015, CN v Parliament (F‑26/14, EU:F:2015:22) (see paragraph 76 above) was made in specific circumstances. It is apparent from paragraph 54 of that judgment that, contrary to what the European Parliament had stated in the decision rejecting the complaint, it had not had at its disposal three emails only. The Parliament had had available to it many other items of evidence such as the complaint lodged by the applicant with the Advisory Committee on Harassment, containing a detailed description of the conduct of the Member of Parliament in question, the explanations given by the Parliament’s doctor and psychologist, the applicant’s cessation of work and explanation for it, the applicant’s resignation and the reasons for it, and the fact that another request for assistance in respect of harassment had been made by a different person against the same member.

84 In that specific context, the Civil Service Tribunal found, in paragraph 56 of the judgment of 26 March 2015, CN v Parliament (F‑26/14, EU:F:2015:22), that, taken together, the items of information that the Parliament had at its disposal were indices capable of giving rise to serious doubts regarding the question whether, in the case at hand, the conditions laid down in Article 12a of the Staff Regulations were met. Having regard to that specific context, the Civil Service Tribunal found, in paragraph 57, that the Parliament had disregarded its duty to have regard for the welfare of officials as regards the applicant.

85 In the light of the foregoing, it should be stated that, in the present case, the competent appointing authority did not err in law when it took the view that the applicant had to provide prima facie evidence of harassment.

86 Consequently, the first part of the first plea in law should be rejected as unfounded.

The second and third parts of the first plea in law and the second and third pleas in law, relating to whether the evidence provided in support of the existence of the alleged psychological harassment was sufficient

87 The applicant submits, in essence, that she provided sufficient evidence of psychological harassment and that the competent appointing authority, without carrying out a sufficient examination of that evidence, incorrectly concluded that there was no psychological harassment.

88 In that regard, first, the applicant submits in the reply that the decision opening the invalidity procedure should not be regarded as an isolated act. That decision should be looked at as a series of acts and actions by the Commission, resulting in the applicant’s continued harassment. She states that that decision was arbitrary and was taken even though there were no grounds to warrant it.

89 Second, the applicant submits that some items of evidence in her file, namely her medical documents, were important and relevant to the demonstration that the OLAF hierarchy and staff, in particular the secretary of Unit A and the Head of Unit C, were duly informed of the seriousness of her medical condition. However, no measure whatsoever was taken to respect her sick leave.

90 In the applicant’s submission, even though other offices were available at the OLAF premises, the secretary of Unit A continued to send the applicant emails asking her to prepare her office move herself and requesting her presence at those premises. Furthermore, the Head of Unit C requested her to work in order to finish her ongoing work, setting unrealistic deadlines. In that regard, the applicant does not dispute that the Head of Unit C was entitled to contact her to inform herself about the status of the ongoing cases during the applicant’s leave. Nevertheless, the applicant states that she referred, in her request for assistance, to that head of unit’s inappropriate behaviour. That head of unit requested, insistently, that the applicant participate in a video call scheduled for a date which coincided with a hospital visit and, on several occasions, that she provide explanations about case files – even though other colleagues could access them via the case management system – and to perform tasks linked to the backlog accumulated during the applicant’s absence. Despite her health condition and the availability of other staff members, the Head of Unit C or the competent appointing authority did not consider designating a replacement responsible for questions relating to her cases for the duration of her absence. Furthermore, even after sending a declaration of conflict of interest, the applicant was asked to analyse case files. Accordingly, the competent appointing authority based its assessment solely on the alleged harasser’s claims, without taking account of workload which had been intentionally accumulated in order deliberately to maintain the applicant in long-term conflict with her working environment.

91 Third, the applicant submits that the appointing authority committed an error of assessment by taking the view that emails from a colleague from Unit C were not an attempt to undermine the anonymity granted by the Court in another case in which she was an applicant.

92 Fourth, according to the applicant, the alleged harassment is the result of the Commission’s actions in their entirety. According to her, the conduct of her various colleagues formed a series of events that had to be regarded as a unitary whole constituting psychological harassment.

94 As a preliminary point, it must be borne in mind that it is for the applicant for assistance to provide prima facie evidence of psychological harassment in the light of the definition in Article 12a(3) of the Staff Regulations, namely ‘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 person requesting assistance (see paragraph 80 above).

95 Furthermore, where there is an allegation of infringement of Article 12a of the Staff Regulations, the Court must examine whether the institution concerned committed an error of assessment of the facts having regard to the definition of harassment in that provision, and not a manifest error of assessment of those facts, as the merits of the decision rejecting a request for assistance without an administrative investigation being opened must be assessed by the court having regard to information brought to the attention of the institution, in particular by the person seeking assistance, at the time that institution reached the decision (see judgment of 12 October 2022, Paesen v EEAS, T‑88/21, EU:T:2022:631, paragraph 242 (not published) and the case-law cited).

96 Thus, the applicant’s arguments, set out in paragraphs 87 to 92 above, must be interpreted to the effect that she asserts that the competent appointing authority committed an error of assessment when it took the view that the applicant had not provided prima facie evidence that the alleged psychological harassment had actually taken place.

97 As regards the applicant’s argument, raised in the reply, according to which the decision opening the invalidity procedure is part of the continued harassment against her, it must be noted that, in the application, the applicant alleges infringement of Articles 59 and 90 of the Staff Regulations, read in the light of Articles 12a and 24 thereof, in the context of the third plea in law and solely in support of her claim for annulment of the decision opening the invalidity procedure. When questioned on this point by the Court at the hearing, the applicant, in essence, confirmed that the decision opening the invalidity procedure had, according to her, also to be examined as an element relevant to the demonstration of the alleged psychological harassment, relied on in support of her claim for annulment of the decision rejecting her request for assistance.

98 In that regard, it must be noted that it is not apparent from the applicant’s pleadings that that argument was made explicitly in the application or that it is linked to a plea in law or argument made in the application. Accordingly, this is a new argument, raised in the reply. Furthermore, that argument is not based on matters of law or of fact that have come to light in the course of the procedure and must therefore be declared inadmissible, pursuant to Article 84(1) of the Rules of Procedure of the Court.

– The obligation allegedly imposed on the applicant to work during her sick leave

99 In the first place, it is true that the Head of Unit C did contact the applicant during her sick leave, on several occasions, between 8 June and 25 September 2020.

100 Nevertheless, first, it must be noted that the exchanges of 8 and 9 June 2020, referred to in paragraphs 7 and 10 above, do not contain any request to perform work. Those exchanges refer solely to an organisational plan concerning three ongoing cases. In those exchanges, the Head of Unit C decided, having regard to the assessments of a member of the former Unit A in respect of those cases, to extend the deadline initially scheduled for their closure and to wait to that end for the applicant’s return from her leave, initially expected to be on 23 June 2020. It is true that the applicant was the addressee of those emails and, in her reply, she stated that those cases could be finalised without waiting for her return. Nevertheless, during those exchanges, she was not asked to perform any specific work. The Head of Unit C merely informed her that she would take account of her sick leave and convey the situation to her new head of unit. Thus, the competent appointing authority was entitled to find that the email of 9 June 2020 did not contain any request to perform specific work.

101 Second, as regards the emails of 1 July 2020, referred to in paragraph 14 above, in which the Head of Unit C asked the applicant questions concerning Case E, it should be noted that those exchanges indeed consisted in a request for information concerning that case, with a view to analysing the report prepared by the applicant, but that the Head of Unit C also stated that a reply from the applicant was not expected until her return from sick leave.

102 Third, it must be stated that all the emails between the Head of Unit C and the applicant, referred to in paragraphs 100 and 101 above, were worded in a courteous and respectful manner. In addition, the applicant herself replied by stating that she was available to receive proposals in order to close the case files at issue. Furthermore, the Head of Unit C stated in those emails, on several occasions, that she was not expecting any reply until the applicant was back at work.

103 Fourth, it is true that two events referred to in the file of the present case could be regarded as a request to perform work. In the email of 23 June 2020, referred to in paragraph 11 above, the Head of Unit C sent the applicant an invitation to a video call in order to discuss a case. In addition, by her emails of 26 and 31 August 2020, referred to in paragraphs 16 and 17 above, she sent the applicant a new version of a report, for approval, and asked her to complete the missing information in it.

104 Nevertheless, it must be pointed out that, as regards the emails of 26 and 31 August 2020, the Head of Unit C took care to specify that the applicant was not required to perform the work requested until after the end of her sick leave.

105 Moreover, it must be noted that the email of 23 June 2020 was sent on a date which corresponded to the day following the one initially expected to be the end of the applicant’s sick leave, namely the foreseeable date of the applicant’s return to the office. In addition, it is apparent from several emails, and in particular from an email dated 31 August 2020, that the Head of Unit C was not aware of the extensions of that sick leave, since she was not the applicant’s line manager. She states in those emails that she could not know the duration of the applicant’s sick leave until after each of its successive extensions, since she was not part of the unit to which the applicant was assigned and had no access to her file in Sysper 2. Furthermore, it is apparent from the documents in the file that the applicant did in fact inform her head of unit of those successive extensions. However, the Head of Unit C was not among the addressees of those emails.

106 In those circumstances, even if, in principle, it is inappropriate to ask an official or other staff member on sick leave to perform certain specific tasks, it is apparent from the file that, in the present case, such conduct on the part of the Head of Unit C cannot be categorised as psychological harassment within the meaning of the definition referred to in paragraph 94 above.

107 In the second place, as regards the applicant’s alleged obligation to work and access the case files even after her declaration of conflict of interest concerning Case G, it should be recalled that the applicant signed that declaration electronically on 7 September 2020 (see paragraph 19 above). It is true that, on the following day, the Head of Unit C contacted the applicant regarding that case in particular, in order to inform her that she was released from two other cases and to ask her for information, in the event that, in the meantime, she returned from her sick leave. In that regard, even though the declaration of conflict of interest had not yet been considered or approved on 8 September 2020, which did not happen until 20 September 2020, the fact remains that that request of the Head of Unit C was inappropriate.

108 Nevertheless, such conduct cannot, on its own, constitute psychological harassment. In the email in question, the possibility remained open for the applicant not to comply with the request of the Head of Unit C. Moreover, it is not apparent from the file that the Head of Unit C would have insisted on receiving the information requested. On 25 September 2020, after having informed the applicant that the declaration of conflict of interest had been endorsed, she confirmed to the applicant that she was released from the case in question and that, consequently, she had no more pending cases within her unit (see paragraph 24 above).

109 In the third place, as regards the applicant’s argument, alleging that the competent appointing authority should have made provision for a person to replace her during her sick leave, it should be pointed out that, in fact, all the cases were closed without the applicant’s involvement (see paragraph 24 above), which means that other colleagues finalised those cases instead of her. In addition, it must be noted that the applicant’s sick leave was supposed to end, initially, on 22 June 2020 (see paragraph 5 above), and that the administration was not in a position to predict that the applicant would successively extend that leave until the end of October 2020.

110 Thus, the applicant’s claim that she was subjected to psychological harassment on account of being obliged to work during her sick leave must be rejected.

111 Consequently, it must be concluded that the competent appointing authority did not commit an error of assessment by taking the view that the facts examined in paragraphs 107 to 110 above did not constitute prima facie evidence of psychological harassment.

– The obligation allegedly imposed on the applicant to go to her workplace in order to move office

112 As regards the email exchanges between the secretary of Unit A and the applicant, with a view to preparing the applicant’s office move, it must be noted that the secretary of Unit A did contact the applicant to that end, on two occasions, on 8 and 30 June 2020 (see paragraphs 9 and 13 above).

113 However, by her email of 8 June 2020, the secretary of Unit A, while apologising for contacting the applicant during her sick leave, asked her whether she was willing to allow another person to move her belongings, which the applicant refused. It cannot be considered that, by acting in that way, the secretary of Unit A requested the applicant’s presence at the office during her sick leave. Likewise, it is not apparent from the file of the present case that she was insistent following the applicant’s reply in the negative, contrary to what the applicant claims.

114 As regards the email of 30 June 2020, the secretary of Unit A could not have known, at the time she sent that email, that the applicant’s sick leave had not ended. Having regard to the fact that they were no longer in the same unit and that the end of that leave had initially been expected on 22 June 2020, the secretary of Unit A was not aware that the applicant’s sick leave had been extended. Furthermore, the contents of that email remain courteous and are exclusively dedicated to facilitating the preparation of the applicant’s office move.

115 Accordingly, it is not apparent from those items of information that the applicant was compelled to move office during her sick leave. Therefore, the competent appointing authority was entitled, without committing an error of assessment, to take the view that they did not constitute prima facie evidence of the alleged psychological harassment.

– The alleged failure on the part of the competent appointing authority to take account of the medical information produced by the applicant

116 In the first place, it must be noted that it is only at the stage of the reply that the applicant refers to medical documents that are set out in three annexes. Accordingly, those arguments must be rejected as inadmissible for being out of time, pursuant to Article 84(1) of the Rules of Procedure.

117 In any event, as regards those three annexes referred to in the reply, it should be noted that the first merely confirms the reason for the applicant’s sick leave and its extension, the second refers to the fact that the applicant sent the Directorate-General for Human Resources and IDOC medical documents following the discussion of 6 May 2021, without, however, including the medical documents in question, and the third includes a medical certificate dated 16 August 2021.

118 It should be borne in mind, as stated in paragraph 81 above, that the lawfulness of a contested act must be assessed according to the information brought to the knowledge of the institution (see, to that effect, judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 60 and the case-law cited, and order of 14 July 2021, AI v ECDC, T‑79/20, not published, EU:T:2021:478, paragraph 65). Consequently, as regards the documents drawn up after the adoption of the contested acts, they can be taken into consideration only in so far as they constitute evidence of the authenticity and the extent of the information available to the author of the contested acts (judgment of 4 June 2003, Del Vaglio v Commission, T‑124/01 and T‑320/01, EU:T:2003:153, paragraph 77).

119 Thus, since, first, the certificate of 16 August 2021 presented in the third annex was drawn up after the adoption of Decision R/138/21 rejecting the complaint of 2 July 2021 and, second, it is apparent from paragraphs 99 to 110 above that the applicant did not, in any event, provide prima facie evidence that there was psychological harassment on the part of the Head of Unit C, that certificate cannot be taken into consideration.

120 In the second place, as regards the other annexes produced by the applicant, she included in them a medical report from 2018. However, that report, which concerns facts going as far back as 2014, was produced with a view to explaining the reason why the applicant had asked to change units at the time of OLAF’s reorganisation, and not with a view to substantiating the facts complained of in the request for assistance lodged in August 2020. In addition, the applicant does not claim, in her request for assistance, that the harassment in question goes as far back as 2014. Therefore, that item of information is irrelevant for the purposes of the present case. In any event, it is not apparent from the file of the present case that that document was submitted to the appointing authority when the applicant lodged her request for assistance. Furthermore, those same considerations apply as regards a decision of the European Ombudsman, also produced as an annex.

121 In the third place, and more generally, it must be noted that, in Decision R/138/21 rejecting the complaint, the appointing authority referred to the documents produced by the applicant on 11 May 2021, which means that it took them into account. Moreover, the decision rejecting the request for assistance and Decision R/138/21 rejecting the complaint are not based on the lack of knowledge, on the part of the persons implicated by the applicant, of her health condition, but, having regard to the fact that it was impossible for them to access the applicant’s Sysper 2 file, on their lack of knowledge of the dates of her sick leave and its successive renewals.

122 Thus, since, in addition, the applicant has not shown that she suffered harassment on account of obligations imposed on her to work during her sick leave, or as a result of preparing her office move during that leave (see paragraphs 99 to 115 above), the entirety of those documents does not appear to be relevant for the purpose of assessing whether she provided prima facie evidence of psychological harassment.

123 In those circumstances, it should be concluded that the applicant has failed to demonstrate, first, that the competent appointing authority did not analyse the medical documents that she had sent and, second, assuming that the appointing authority had failed to take account of those documents, that the competent appointing authority’s assessment would have been different had it taken them into account.

– The allegedly inappropriate conduct of a colleague of the applicant as regards a case heard by the General Court

124 As regards the emails sent by a colleague from Unit C, which, according to the applicant, were an attempt to undermine the anonymity granted by the Court in a case in which she was an applicant, it is apparent from the file of the present case that, as the Commission claims, that colleague did not directly ask the applicant if she was the applicant in the case in question. In that respect, in a first email, he simply congratulated her, in a friendly manner. Moreover, it is true that a second email from that colleague, sent a few days later, did contain a link to the judgment delivered by the Court in the case in question. Nevertheless, even if that conduct is characterised by a certain thoughtlessness, such an isolated act cannot be regarded as forming part of psychological harassment by that colleague acting in the name of Unit C. Consequently, it should be stated that the applicant has not provided any evidence in that regard.

125 Accordingly, those facts cannot be categorised as prima facie evidence provided by the applicant in support of her claims of psychological harassment. Therefore, it must be concluded that the appointing authority did not commit an error of assessment in that regard.

126 As regards the applicant’s claim that the conduct adopted by some of her colleagues should be regarded as a series of events forming a unitary whole constituting psychological harassment, it must be noted, first, that taken in isolation, the facts examined in paragraphs 99 to 125 above do not constitute prima facie evidence in that regard.

127 Second, it must be stated that that claim is solely based on a general assertion that there was continued harassment. The applicant does not establish any links between the persons she refers to and, in particular, between the Head of Unit C and the secretary of Unit A. Furthermore, it must be noted that the allegedly inappropriate conduct took place in a specific context characterised, in particular, by the reorganisation of OLAF, and by the successive extensions of the applicant’s sick leave of which the persons implicated by the applicant were not informed in advance, as the Commission stated, without this being challenged by the applicant. In those circumstances, and in the absence of any prima facie evidence, that claim by the applicant cannot suffice to give rise to serious doubts that the alleged harassers acted in the framework of one and the same collective harassment (see, to that effect, judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 110).

128 Having regard to the foregoing considerations, the information brought to the attention of the competent appointing authority is not capable of giving rise to serious doubts that the conditions laid down by Article 12a of the Staff Regulations are met, with the result that the appointing authority was entitled to take the view that the applicant had not provided prima facie evidence that there was psychological harassment of which she claims she was the victim.

129 Therefore, the second and third parts of the first plea in law and the second and third pleas in law must be rejected.

The fourth plea in law, alleging infringement of the right to respect for private life, the right to the protection of personal data and the right to health

130 The applicant submits that, first, by adopting Decision R/138/21 rejecting the complaint without taking account of the repetitive requests of her colleagues asking her to provide active work during her sick leave and, second, by gathering medical information or information relating to a case before the General Court that constitutes personal data, the Commission not only disregarded her health condition, but also infringed her right to respect for her private life and to the protection of her personal data. In the reply, the applicant states that the reference to Articles 7 and 8 of the Charter concerns simultaneously the first, second and fourth pleas in law, since those three pleas are based on the same facts. She further states that the decision opening the invalidity procedure may also be regarded as an act adopted in breach of those provisions.

132 According to the Commission, since the applicant did not rely on an infringement of Articles 7 and 8 of the Charter and on an infringement of the right to health in her complaint lodged against the decision rejecting the request for assistance, the fourth plea in law, inasmuch as it is directed against that decision, should be rejected as inadmissible for failing to comply with the rule of correspondence.

133 In support of the claim that that argument is admissible, the applicant states, in the reply, that the reference to Articles 7 and 8 of the Charter should be read together with the first, second and fourth pleas in law and, in essence, at the hearing, that, in her complaint, she referred to a negative impact on her reputation, her private life and the protection of her medical data.

134 It must be borne in mind that, according to the case-law, the rule of correspondence between the complaint, within the meaning of Article 91(2) of the Staff Regulations, and the subsequent action requires that, for a plea before the Courts of the European Union to be admissible, it must have already been raised in the pre-litigation procedure, thus enabling the appointing authority to know the criticisms made of the contested decision. Furthermore, since the pre-litigation procedure is informal in character and those concerned are acting without the assistance of a lawyer at that stage, the administration must not interpret the complaints restrictively but must, on the contrary, examine them with an open mind (see paragraphs 60 to 62 above).

135 In the present case, it is true that the applicant did not explicitly refer to Articles 7 and 8 of the Charter in her request for assistance or in her complaint. Nevertheless, in her request for assistance, the applicant claimed that there had been an ‘impact on [her] health and privacy, on several occasions’ as a result of the conduct of OLAF’s hierarchy and staff.

136 Furthermore, in her complaint, the applicant claimed that the emails sent by her colleague from Unit C, referred to in paragraphs 21 and 22 above, clearly failed to respect the anonymity of the Court’s judgment in question or data protection.

137 Thus, even though the complaint does not specifically refer to Articles 7 and 8 of the Charter, the asserted infringement of those provisions may be linked to the claims made in the applicant’s request for assistance and complaint.

138 Therefore, it should be considered that the fourth plea in law complies with the rule of correspondence and that it is admissible inasmuch as it seeks the annulment of the decision rejecting the request for assistance.

139 According to Article 7 of the Charter, everyone has the right to respect for his or her private and family life, home and communications. In accordance with Article 8(1) of the Charter, everyone has the right to the protection of personal data concerning him or her.

140 The right to the protection of personal data is closely connected with the right to respect for private and family life and precludes information in relation to identified or identifiable natural persons from being disseminated to third parties, whether that be public authorities or the general public, unless that dissemination takes place in the context of fair processing of that information meeting the requirements laid down in Article 8(2) of the Charter (see, to that effect, judgment of 18 June 2020, Commission v Hungary (Transparency of associations), C‑78/18, EU:C:2020:476, paragraph 126).

141 It must be also noted that Article 52(3) of the Charter provides the following:

‘In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.’

142 Article 7 of the Charter, concerning the right to respect for private and family life, contains rights which correspond to those guaranteed in Article 8(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘ECHR’). In accordance with Article 52(3) of the Charter, Article 7 thereof is thus to be given the same meaning and the same scope as Article 8(1) ECHR, as interpreted by the case-law of the European Court of Human Rights (‘ECtHR’) (see judgment of 24 May 2023, Meta Platforms Ireland v Commission, T‑451/20, EU:T:2023:276, paragraph 181 and the case-law cited). Likewise, in interpreting Article 8 of the Charter, it is necessary to have regard to Article 8 ECHR, as a minimum threshold of protection, as those two provisions contain equivalent rights (see, by analogy, judgment of 8 April 2014, Digital Rights Ireland and Others, C‑293/12 and C‑594/12, EU:C:2014:238, paragraph 54).

143 According to the case-law of the European Court of Human Rights, ‘private life’ is a broad concept that does not lend itself to an exhaustive definition. Thus, Article 8 ECHR also protects the right to identity and personal development and the right for every individual to establish and develop relationships with other human beings and with the outside world. There is no reason in principle to exclude professional or business activities from the concept of ‘private life’ (see ECtHR, 16 December 1992, Niemietz v. Germany, CE:ECHR:1992:1216JUD001371088, § 29; ECtHR, 16 February 2000, Amann v. Switzerland, CE:ECHR:2000:0216JUD002779895, § 65, and ECtHR, 4 May 2000, Rotaru v. Romania, CE:ECHR:2000:0504JUD002834195, § 43).

144 Nevertheless, it should be pointed out that the fact that the concept of ‘private life’ is broad, in accordance with the case-law of the European Court of Human Rights, and that the right to the protection of personal data may constitute one of the aspects of the right to respect for private life does not mean that all personal data are necessarily covered by the concept of ‘private life’ (see, to that effect, Opinion of Advocate General Léger in Parliament v Council and Commission, C‑317/04 and C‑318/04, EU:C:2006:346, point 209).

145 The European Court of Human Rights has previously ruled on the possibility of considering non-professional data contained in emails sent from the workplace as coming within Article 8 ECHR and, consequently, as covered by the concepts of ‘private life’ and ‘correspondence’ (ECtHR, 22 February 2018, Libert v. France, CE:ECHR:2018:0222JUD000058813, §§ 24 and 25). In that judgment, the European Court of Human Rights took the view that, 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.

146 Furthermore, the European Court of Human Rights found that where there has been compilation of data on a particular individual, processing or use of personal data or publication of the material concerned in a manner or degree beyond that normally foreseeable, private life considerations arise (ECtHR, 28 June 2018, M.L. and W.W. v. Germany, CE:ECHR:2018:0628JUD006079810, § 87).

147 In the present case, first, as regards the email exchanges between, on the one hand, the Head of Unit C and the secretary of Unit A and, on the other, the applicant, it should be noted that those exchanges are based on strictly professional matters, concerning ongoing cases and office changes following the reorganisation of OLAF. Furthermore, the applicant’s sick leave, which may be regarded as being covered by personal data, is addressed in a professional context and in a vague manner. In that regard, no reference is made to a specific date for her return from that leave. Thus, while those emails contain, in themselves, personal data of the applicant, they are nevertheless processed in a strictly professional context and do not concern the applicant’s private life. Furthermore, they did not result in any personal information being sent that is liable to infringe the applicant’s right to respect for her private life.

148 Second, as regards the two emails sent by the applicant’s colleague concerning a judgment delivered by the Court, it should be noted that, following a request for anonymity lodged by the applicant, the data contained in the judgment at issue were anonymised. Moreover, it is not apparent from those emails that their sender asked the applicant to confirm that she was a party to the proceedings culminating in the judgment delivered by the Court. Thus, the data contained in those emails are not data in relation to an identified or identifiable natural person and, accordingly, personal data within the meaning of the case-law referred to in paragraphs 140 and 146 above.

149 Third, as regards the ‘right to health’, it should be recalled that the competent appointing authority did not commit an error of assessment when it took the view that the applicant 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 (see paragraphs 99 to 115 above). In those circumstances, and assuming that the facts complained of by the applicant come within the scope of Article 35 of the Charter, the applicant’s right to health was not infringed.

151 Having regard to the foregoing, the claim seeking annulment of the decision rejecting the request for assistance must be rejected in its entirety as unfounded.

152 In the present case, the applicant is seeking compensation, in the amount of EUR 20 000, for the non-material damage she alleges she has suffered on account of the allegedly irregular activities at issue, which affected her personal situation and led to a deterioration of her health condition. She submits that the Commission and OLAF’s Director-General took no initiative to address that situation.

153 According to settled case-law regarding claims for compensation in staff cases, the European Union may incur non-contractual liability only if a number of conditions are fulfilled, namely: (i) the institution’s conduct must be unlawful, (ii) actual damage must have been suffered, and (iii) there must be a causal link between the conduct and the damage alleged. Those three conditions are cumulative, which means that if one of them is not satisfied, the European Union cannot be held liable (see, to that effect, judgment of 25 June 2020, XH v Commission, T‑511/18, EU:T:2020:291, paragraph 161 and the case-law cited).

154 It has also been held that claims for compensation for material or non-material damage had to be rejected to the extent that they were closely related to the claims for annulment which had themselves been dismissed as inadmissible or unfounded (judgments of 5 February 1997, Ibarra Gil v Commission, T‑207/95, EU:T:1997:12, paragraph 88, and of 22 March 2018, Popotas v Ombudsman, T‑581/16, EU:T:2018:169, paragraph 171).

155 Furthermore, it must be recalled that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to the procedure before the General Court, in accordance with the first paragraph of Article 53 thereof and Article 76(d) of the Rules of Procedure, all applications must indicate the subject matter of the dispute and contain a summary of the pleas in law on which the application is based. That summary must be nevertheless sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. Accordingly, it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated coherently and intelligibly in the application itself, even if only in summary form (judgments of 12 March 2008, Giannini v Commission, T‑100/04, EU:T:2008:68, paragraph 61, and of 25 June 2020, XH v Commission, T‑511/18, EU:T:2020:291, paragraph 45 (not published)).

156 In the present case, first, it is not clear from the application that the applicant is seeking compensation for the damage she alleges she has suffered on account of the adoption of the decision opening the invalidity procedure. In those circumstances, in the absence of sufficient details, that claim for compensation does not satisfy the requirements of Article 76(d) of the Rules of Procedure and must be regarded as inadmissible (see paragraph 155 above). Furthermore, and in any event, since that claim is closely linked with the claim for annulment of the decision opening the invalidity procedure, which has been rejected as inadmissible (see paragraph 49 above), it should, pursuant to the case-law set out in paragraph 154 above, be regarded as inadmissible and rejected on that basis.

157 Second, since the applicant’s claim for annulment of the decision rejecting the request for assistance has been rejected as unfounded (see paragraph 151 above), the claim for compensation of the non-material damage referred to in paragraph 152 above, which is closely linked, must consequently also be rejected pursuant to the case-law recalled in paragraph 154 above.

158 Therefore, the applicant’s claim for compensation should be rejected in its entirety.

159 In support of the first head of claim, the applicant requests the Court to order the Commission to produce numerous items of evidence concerning, in particular, the workload of staff members of Units A, C and D, the exchanges between OLAF and the medical service of the Commission on the opening of the invalidity procedure and the documents relating to the number of sick days of certain members of staff of OLAF. In the reply, the applicant also requests the Court to ask the Commission to produce the entire content of the file of the ongoing invalidity procedure concerning her and, if necessary, to obtain an expert medical report with a view to ascertaining whether or not her health condition warrants the suspension of that procedure. Furthermore, in a request for the adoption of measures of inquiry, lodged with the Court Registry on 2 March 2023, she requests the submission of information relating to an investigative procedure of OLAF which is ongoing against a colleague.

160 In that regard, it must be borne in mind that Article 90 of the Rules of Procedure provides that measures of organisation of procedure are to be prescribed by the Court. Furthermore, it is apparent from Article 92(1) of the Rules of Procedure that the Court has exclusive jurisdiction to assess the usefulness of measures of inquiry for the purpose of resolving the dispute (judgment of 10 July 2012, Interspeed v Commission, T‑587/10, not published, EU:T:2012:355, paragraph 81).

161 In the present case, since the present dispute may be resolved on the basis of the documents in the Court’s file, the measures of inquiry sought by the applicant are irrelevant for the resolution of the dispute. Thus, all of those requests must be rejected.

162 Accordingly, the measures sought by the applicant must be rejected and, consequently, the action in its entirety must be dismissed.

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

164 Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> XH v Commission (Civil service - Psychological harassment - Judgment) [2023] EUECJ T-613/21 (22 November 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/T61321.html Cite as: EU:T:2023:739, [2023] EUECJ T-613/21, ECLI:EU:T:2023:739

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