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

ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Second Chamber)

6 April 2011 (*)

(Civil service - Duty to provide assistance - Articles 12a and 24 of the Staff Regulations - Psychological harassment by a hierarchical superior - Production of a confidential document - Article 44(2) of the Rules of Procedure)

In Case F-42/10,

ACTION under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,

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

applicant,

v

European Commission, represented by J. Currall and J. Baquero Cruz, acting as Agents,

defendant,

THE CIVIL SERVICE TRIBUNAL (Second Chamber),

composed of H. Tagaras, President, I. Boruta and S. Van Raepenbusch (Rapporteur), Judges,

Registrar: W. Hakenberg

makes the following

Order

1 By application received at the Registry of the Tribunal on 3 June 2010 by fax (the original being lodged on 10 June 2010), Ms Skareby seeks, in essence, annulment of the decision of the European Commission of 23 July 2009 rejecting her claim that she was subjected to psychological harassment by a former hierarchical superior.

2 This case arises from a letter of 10 November 2008, by which the applicant submitted a request for assistance under Article 24 of the Staff Regulations. In that letter the applicant claimed that she had been the victim of psychological harassment as a result of the behaviour of her two successive hierarchical superiors.

3 By judgment of 8 February 2011 in Case F-95/09 Skareby v Commission, the Tribunal annulled the Commission's decision, contained in a letter of 4 March 2009, refusing, on the ground that the request for assistance was out of time, to open an administrative inquiry into alleged harassment by the first hierarchical superior.

4 With regard to the allegations of psychological harassment made against the second hierarchical superior, the Commission informed the applicant, by the letter of 4 March 2009 referred to above, that the Investigatory and Disciplinary Office (IDOC) had received a mandate to open an administrative inquiry.

5 By letter of 23 July 2009, the Commission informed the applicant that the administrative inquiry was closed, without any disciplinary follow-up, since IDOC had found that the alleged harassment had not been established. The Commission therefore decided not to comply with the request for assistance made by the applicant ('the contested decision').

6 The applicant puts forward three pleas in support of her claims: (i) breach of the rights of the defence and of the right to good administration, (ii) infringement of Article 12a(3) of the Staff Regulations of Officials of the European Union, and (iii) manifest errors of assessment, breaches of the duty to state reasons, breach of the duty to have regard for the welfare of officials and breach of the duty to provide assistance.

7 One of the applicant's claims is that the Tribunal should ask the Commission to produce the IDOC report, with the supporting evidence on which the contested decision is based. That claim should be seen, inter alia, in the light of the first plea, in which the applicant voices doubts about the inquiry alleged to have been conducted by IDOC, although she does not expressly argue that that inquiry was ineffective.

8 In its defence, the Commission asserts that it cannot disclose the documents in question to the applicant because they affect the interests of third parties and include personal data that must be protected. However, the Commission declares that it is willing to provide the Tribunal with a confidential version of those documents if the Tribunal so asks by a reasoned order, but draws the Tribunal's attention to the difficulty of producing a non-confidential version, given that the alleged harassment took place in a small unit, so that blanking out the names of witnesses would not prevent them being identified by other evidence.

9 It is apparent from the application that the IDOC report and the supporting documents are documents which cannot, a priori, be considered to be irrelevant for the purposes of enabling the Tribunal to adjudicate on the applicant's complaints in full knowledge of the facts. In order to be in a position to exercise its powers of review, the Tribunal must have full cognisance of the circumstances of the case.

10 In the light of the foregoing, the Tribunal considers it necessary, in the interests of the proper administration of justice, to order the Commission to produce the inquiry report prepared by IDOC following the request for assistance of 10 November 2008, and the documents on which that report is based.

11 It follows, however, from Article 44(1) of the Rules of Procedure, that the production of documents in principle entails making them available to the applicant.

12 However, in accordance with Article 44(2) of the Rules of Procedure, the IDOC report and the supporting documents will not be made available to the applicant, at least at the stage of verifying their actual relevance and confidentiality vis-à-vis that party.

13 In order to involve the applicant as much as possible in the decision-making process, it is appropriate none the less to invite her to submit her observations on the Commission's assertion that the IDOC inquiry report and the documents on which it is based are confidential.

14 If it emerges from examination of those documents that they are not ultimately relevant for deciding the case, the Tribunal will return them to the Commission without waiting until the end of the proceedings. If, on the other hand, the Tribunal envisages using them as a basis for deciding the case, it will be incumbent on it, taking into account the applicant's observations mentioned above, to verify that each document which is claimed to be confidential is actually secret or confidential, and to what extent.

15 If the Tribunal finds as a result of the abovementioned examination that some of the documents and information at issue must be regarded as secret or confidential in respect of the applicant, it will be necessary for it to weigh up the interests involved and determine how to reconcile the applicant's procedural rights with the interests justifying such confidentiality.

On those grounds,

THE CIVIL SERVICE TRIBUNAL (Second Chamber)

hereby orders:

1. Ms Skareby is invited to submit, within 15 days of service of this order, her observations on the Commission's statement that the inquiry report prepared by the Investigatory and Disciplinary Office (IDOC) following her request for assistance of 10 November 2008, and the documents on which it is based, are confidential.

2. The European Commission shall produce the documents referred to in point (1) within 15 days of service of this order.

3. Neither the applicant nor her lawyers shall be authorised to have access to the documents referred to in point (1) at least until a decision has been taken regarding the relevance and confidentiality of those documents.

4. The costs shall be reserved.

Luxembourg, 6 April 2011.

* Language of the case: English.

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