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

JUDGMENT OF THE GENERAL COURT (Seventh Chamber)

20 October 2021 (*)

(Civil service – Officials – Transfer in the interests of the service – Article 12a of the Staff Regulations – Psychological harassment – Article 25 of the Staff Regulations – Obligation to state reasons – Rights of the defence and the right to be heard – Manifest error of assessment – Principle of sound administration and duty to have regard for the welfare of staff – Article 22a of the Staff Regulations – Misuse of powers – Article 24 of the Staff Regulations – Request for assistance – Refusal of the request – 2017 appraisal exercise – Appraisal report – 2018 promotion exercise – Proposed non-promotion – Liability)

In Joined Cases T‑671/18 and T‑140/19,

ZU, represented by C. Bernard-Glanz, lawyer,

applicant,

v

European Commission, represented by I. Melo Sampaio, D. Milanowska and L. Vernier, acting as Agents, and by D. Waelbroeck and A. Duron, lawyers,

defendant,

APPLICATIONS pursuant to Article 270 TFEU, in Case T‑671/18, first, for annulment of the decision of the Commission of 12 October 2018 to transfer the applicant to the European Anti-Fraud Office (OLAF) in Brussels (Belgium), of the letter of the Commission of 29 October 2018 by which it provisionally confirmed to the applicant that he would be transferred to OLAF as of 1 December 2018 and communicated to him practical information concerning his return to Brussels and of the decision rejecting the complaint lodged against those two decisions and, second, for compensation for the loss allegedly suffered by the applicant as a result, inter alia, of those decisions and, in Case T‑140/19, for annulment of the applicant’s 2017 appraisal report, of the proposal for his non-promotion for 2018, of the rejection of his request for assistance made on 26 January 2018 and of the decisions rejecting the complaints brought against those three decisions,

THE GENERAL COURT (Seventh Chamber),

composed of R. da Silva Passos, President, I. Reine and L. Truchot (Rapporteur), Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 14 January 2021,

gives the following

Judgment

I.      Background to the dispute

1        The applicant, ZU, entered the Commission of the European Communities on 1 June 2007, when he was assigned to the European Anti-Fraud Office (OLAF) in Brussels (Belgium). He remained at OLAF until 29 February 2016.

2        From 1 March 2016, the applicant was transferred to Moscow (Russia) where he held the post of Trade Affairs Manager in the Trade and Economic Section of the European Union Delegation to Russia (‘the Delegation’). His posting at the European External Action Service (EEAS) was intended to last for four and a half years and was due to end in August 2020.

A.      Case T‑671/18

3        By note of 14 September 2018, acting on behalf of the Commission, the Head of the Career Management & Mobility Unit, which is part of the Directorate-General (DG) for Human Resources and Security, informed the applicant of its intention, at the request of the Directorate-General to which he had been transferred, namely DG Trade, to transfer him to OLAF, his service of origin, in the interest of the service, pursuant to Article 7 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).

4        By letter of 26 September 2018, the applicant submitted his comments to the Commission.

5        By note of 12 October 2018, the Head of Unit for Career Management & Mobility, which is a part of the DG for Human Resources and Security, acting on behalf of the Commission, responded to the applicant’s comments and decided to transfer him to OLAF in Brussels (‘the transfer decision’).

6        In the transfer decision, the Commission specified the part of OLAF to which the applicant would be transferred and added that he was to take up his post on 1 December 2018, so that he would have time to arrange his return to Brussels.

7        By letter of 29 October 2018, the Commission confirmed to the applicant, provisionally, that the date of his transfer to OLAF would be 1 December 2018 and gave him practical information concerning his return to Brussels (‘the letter of 29 October 2018’).

8        On 13 November 2018, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the transfer decision and the letter of 29 October 2018 (together, ‘the contested decisions’). That complaint was accompanied by a request for assistance lodged pursuant to Article 24 of the Staff Regulations.

B.      Case T‑140/19

1.      The 2017 appraisal exercise

9        On 8 January 2018, the Commission launched the appraisal exercise for 2017 (‘the 2017 appraisal exercise’), covering the period 1 January to 31 December 2017, by means of a publication in Administrative Notices No 01/2018.

10      On 30 January 2018, the applicant signed his self-assessment for the 2017 appraisal exercise.

11      On 9 February 2018, the reporting officer interviewed the applicant.

12      On 6 March 2018, the reporting officer appraised the applicant’s performance for the purposes of the 2017 appraisal exercise. In that appraisal, several criticisms are levelled at the applicant’s difficulties in the performance of his duties, in particular as regards his efficiency and conduct in the service. It was concluded that the applicant’s performance ‘continues’ not to meet the high requirements expected of an official employed in a delegation as strategic as that of Moscow.

13      On 12 March 2018, the applicant refused to accept that appraisal and on 25 March 2018 he lodged an appeal with the appeal assessor against his appraisal report.

14      On 11 April 2018, the appeal assessor interviewed the applicant.

15      On 25 April 2018, the appeal assessor confirmed the reporting officer’s appraisal and added his own comments. He stated, inter alia, that the applicant’s attitude was particularly problematic in an environment such as that of an EU delegation. The appeal assessor signed the applicant’s appraisal report for the 2017 appraisal exercise (‘the 2017 appraisal report’).

2.      The 2018 promotion exercise

16      On 3 April 2018, the Commission launched the promotion exercise for 2018 (‘the 2018 promotion exercise’) by means of a publication in Administrative Notices No 13/2018.

17      On 18 June 2018, DG Trade published the list of officials which it proposed for promotion in the 2018 promotion exercise (‘the list of officials proposed for promotion by DG Trade’). The applicant’s name was not on that list.

18      On 13 November 2018, the list of officials promoted in the 2018 promotion exercise was published in Administrative Notices No 34-2018. The applicant’s name was not on that list.

3.      The request for assistance lodged pursuant to Article 24 of the Staff Regulations

19      By email of 26 January 2018, the applicant lodged a request with the Commission in order for it to ‘take relevant action as provided for in the [Staff Regulations] aimed at ensuring objectivity of [his] appraisals and eradicating repeated acts (indications of discrimination, exclusion from training/seminar relevant for job performance, unfavourable time management, etc.), having an adverse effect on [his] career’ (‘the request for assistance at issue’).

20      In the request for assistance at issue, the applicant mentioned ‘a number of unfavourable decisions made with regard to [him]’ which, he claimed, had a negative impact on his ‘development’. He thus relied on the following decisions: cancellation of an approved mission to Tbilisi (Georgia) to attend a regional trade seminar in March 2017; rejection of a mission order to attend a pre-posting training in Brussels which was, in principle, mandatory prior to his transfer to Moscow; rejection of his request to attend the international investment forum in Sochi (Russia); and refusal to grant a flexitime compensation. The applicant also questioned the objectivity of his appraisal reports, in particular the 2017 appraisal report.

21      In a document dated 18 April 2018, entitled ‘Outline of allegations and preliminary analysis of the evidence’, the Commission set out an initial analysis of the request for assistance at issue, on which the applicant was invited to comment.

22      The applicant replied by letter of 25 April 2018. In that document, he referred, inter alia, to difficulties encountered during his move to Moscow and to the time, which he considered too long, it took for him to have the benefit of an ergonomic chair following his arrival at the Delegation.

23      On 28 May 2018, the Director of the Legal Affairs Directorate of DG Human Resources and Security, acting on behalf of the Commission, rejected the request for assistance at issue (‘the decision rejecting the request for assistance at issue’).

24      In the decision rejecting the request for assistance at issue, the Commission stated, in the part on the legal analysis of the request, in the chapter headed ‘General allegations made by [the applicant]’, that, ‘as a general remark, it should be noted that the elements put forward by [the applicant] demonstrate[d] disagreements between him and the administration/his hierarchy’, that ‘these agreements [were] of a purely administrative nature dealing with the normal running of [the service]’ and that ‘[the applicant] formulate[d] only general complaints’.

25      The Commission considered that the applicant did not provide any concrete prima facie evidence of the attacks of which he claimed to have been the victim and that the evidence before it suggested, on the contrary, that the administration had acted in compliance with the principle of sound administration.

26      The Commission then noted that the applicant ‘[did] not identify any threat, or insulting or defamatory acts or utterances’ but ‘merely point[ed] to situations where his superiors, after conducting a thorough evaluation [of the situation, had turned down] normal administrative requests’.

27      After concluding the part on general allegations by stating that the request for assistance at issue must be rejected as unfounded, the Commission responded specifically to the action which had been taken, namely, failure to take into account, in the context of his appraisal, the administrative burden associated with his request for reimbursement of removal expenses; the delay in providing an ergonomic chair in Moscow; the refusal of flexitime recuperation; non-approval of a mission to Sochi; cancellation of a mission to Tbilisi; refusal to authorise participation in the international economic forum held in Saint Petersburg (SPIEF, Russia); non-approval of a request for pre-post training in Brussels; the adoption of the 2017 appraisal report and of its content.

28      In the part of the decision rejecting the request for assistance at issue headed ‘Conclusion’, the Commission considered that ‘the evidence submitted by [the applicant did] not support his allegations made in [the] request for assistance and in [his] subsequent communication’. For that reason, the Commission rejected the request for assistance at issue.

4.      Pre-litigation procedure

29      On 24 July 2018, the applicant lodged a complaint against, first, the 2017 appraisal report; second, the list of officials which DG Trade proposed for promotion in so far as his name was not included (‘the 2018 proposed non-promotion’); and, third, the decision rejecting the request for assistance at issue.

30      By letter of 4 September 2018, the applicant provided the Commission with additional information in connection with his complaint against the decision rejecting the request for assistance at issue.

31      In that letter, the applicant referred to an accusation by his superiors concerning compliance with the applicable confidentiality procedure as regards the disclosure of the minutes of the meeting held on 30 October 2017 between the Russian Ministry of Foreign Affairs and the European Business Association (EBA). He also maintained that he was excluded by the Head of Delegation from a meeting held in March 2018 on Eurasian connectivity, although the Head of Delegation was aware that the applicant was competent in that field.

32      By decision of 21 November 2018, the Commission rejected the complaint referred to in paragraph 29 above in respect of the 2017 appraisal report and the 2018 proposed non-promotion. On the same day, it adopted another decision rejecting that complaint in respect of the decision rejecting the request for assistance at issue.

II.    Procedure and forms of order sought

A.      Case T‑671/18

33      By application lodged at the Court Registry on 15 November 2018, the applicant brought an action for annulment of the contested decisions (Case T‑671/18).

34      By separate document lodged at the Court Registry on the same day, the applicant requested a stay of execution of the contested decisions (Case T‑671/18 R).

35      Pursuant to Article 91(4) of the Staff Regulations, the proceedings in Case T‑671/18 were stayed. The proceedings resumed following the express rejection, on 13 March 2019, of the complaint which the applicant had lodged on 13 November 2018 against the contested decisions (‘the decision of 13 March 2019 rejecting the complaint’).

36      By order of 28 November 2018, ZU v Commission (T‑671/18 R, not published, EU:T:2018:862), the President of the General Court rejected the request for a stay of execution of the contested decisions.

37      By separate document lodged at the Court Registry on 19 December 2018, pursuant to Article 66 of the Rules of Procedure of the General Court, the applicant requested anonymity. By decision of 11 January 2019, the Court (Third Chamber) granted that request.

38      By decision of 18 October 2019, the President of the General Court, pursuant to Article 27(3) of the Rules of Procedure, reassigned Case T‑671/18 to a new Judge-Rapporteur attached to the Seventh Chamber.

B.      Case T‑140/19

39      By application lodged at the Court Registry on 4 March 2019, the applicant brought an action for annulment of the 2017 appraisal report, of the 2018 proposed non-promotion and of the decision rejecting the request for assistance at issue.

40      By separate document lodged at the Court Registry on 22 March 2019, pursuant to Article 66 of the Rules of Procedure, the applicant requested anonymity. By decision of 10 April 2019, the Court (Third Chamber) granted that request.

41      By decision of 18 October 2019, the President of the General Court, pursuant to Article 27(3) of the Rules of Procedure, reassigned Case T‑140/19 to a new Judge-Rapporteur attached to the Seventh Chamber.

C.      Joinder of the cases and subsequent procedure

42      By decision of the President of the Seventh Chamber of 22 October 2019, Cases T‑671/18 and T‑140/19 were joined for the purposes of the written part and any oral part of the procedure and of the decision concluding the proceedings.

43      By letter of 1 April 2020, the applicant requested a hearing, disputed certain elements of the rejoinder and sought a measure of inquiry for the purpose of the summoning and examination of a witness.

44      By letter of 11 December 2020, the applicant requested that Cases T‑671/18 and T‑140/19 be joined for the purposes of the oral part of the procedure with Case T‑689/19, in which an action had been brought on 8 October 2019 and the EEAS was the defendant. He also requested that the hearing be postponed in Cases T‑671/18 and T‑140/19. Furthermore, he proposed to offer further evidence in advance.

45      By decision of 17 December 2020, the Court refused to postpone the hearing in Cases T‑671/18 and T‑140/19.

46      By letters of 7 January 2021, the Commission and the EEAS opposed the applicant’s request for joinder (see paragraph 44 above) on which the Court had requested their observations.

47      By decision of 9 January 2021, the Court dismissed the applicant’s application for joinder.

48      By letter of 12 January 2021, the applicant provided further evidence.

D.      Forms of order sought

49      In Case T‑671/18, the applicant claims that the Court should:

–        annul the contested decisions and, in so far as necessary, the decision of 13 March 2019 rejecting the complaint;

–        order the Commission to pay damages in respect of the harm sustained as a result, first, of the contested decisions and of the decision of 13 March 2019 rejecting the complaint and, second, of the Commission’s failure to take action in response to the request for assistance submitted in the complaint lodged on 13 November 2018;

–        order the Commission to pay the costs.

50      In Case T‑140/19, the applicant claims that the Court should:

–        annul the 2017 appraisal report, the 2018 proposed non-promotion, the decision rejecting the request for assistance at issue and, so far as necessary, the decisions rejecting the complaint in respect of those decisions;

–        order the Commission to pay the costs.

51      In both cases, the Commission contends that the Court should:

–        dismiss the application;

–        order the applicant to pay the costs.

III. Law

52      The Court considers it appropriate to examine the claims of the applicant in Case T‑671/18 and in Case T‑140/19 in turn.

53      However, it should be noted that the applicant’s claims in both cases are based on psychological harassment of which he claims he was the victim as of his arrival at the Delegation. In each action, the applicant states that, in the request for assistance at issue, he complained of ‘psychological harassment’. He repeatedly alleges such harassment as justification for the annulment of the decisions contested in both cases.

54      In such circumstances, and having regard to the particular shape of the applicant’s arguments (see paragraphs 64 to 66 below), it is appropriate to examine first of all the material which he has provided in support of such harassment.

A.      Psychological harassment

55      Article 12a(3) of the Staff Regulations provides:

‘“Psychological harassment” means any improper conduct that takes place over a period, is repetitive or systematic and involves physical behaviour, spoken or written language, gestures or other acts that are intentional and that may undermine the personality, dignity or physical or psychological integrity of any person.’

56      It is clear from that provision that the concept of ‘psychological harassment’ is defined as ‘improper conduct’, first, in the form of physical behaviour, spoken or written language, gestures or other acts, which takes place ‘over a period’ and is ‘repetitive or systematic’, suggesting that psychological harassment must be understood as a process that occurs over time and presupposes the existence of repetitive or continual behaviour which is ‘intentional’, as opposed to ‘accidental’. Second, in order to fall under that definition, such physical behaviour, spoken or written language, gestures or other acts must have the effect of undermining the personality, dignity or physical or psychological integrity of a person (see judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 76 and the case-law cited).

57      Accordingly, it is not necessary to establish that the physical behaviour, spoken or written language, gestures or other acts in question were committed with the intention of undermining the personality, dignity or physical or psychological integrity of a person. In other words, there can be psychological harassment without it being established that there has been any intention on the part of the harasser, by his or her conduct, to discredit the victim or deliberately impair the latter’s working conditions. It is sufficient that such improper conduct, provided that it was intentional, led objectively to such consequences (see judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 77 and the case-law cited).

58      However, as the conduct in question must, under Article 12a(3) of the Staff Regulations, be improper, the classification of such conduct as ‘harassment’ is subject to the condition of its being sufficient, when viewed objectively, to be considered real, in the sense that an impartial and reasonable observer, of normal sensitivity and in the same situation, would consider the behaviour or act in question to be excessive and open to criticism (see judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 78 and the case-law cited).

59      Lastly, psychological harassment may, by definition, be the outcome of a set of different acts which, considered in isolation, would not necessarily constitute per se psychological harassment but which, viewed as a whole and in context, including because of their build-up over time, could be regarded as such. That is why, when examining whether the acts alleged by the applicant constitute psychological harassment, those facts should be examined both individually and jointly as part of the general working environment created by the behaviour of one member of staff towards another (see, to that effect, judgments of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraphs 93 and 94, and of 28 May 2020, Cerafogli v ECB, T‑483/16 RENV, not published, EU:T:2020:225, paragraphs 395 and 396).

60      Furthermore, it should be pointed out that an official is entitled to rely on psychological harassment in order to challenge the legality of any decision adversely affecting him or her in so far as he or she demonstrates the effect of the conduct allegedly constituting such harassment on the substance of the decision in question. It is prima facie for the official concerned to establish the existence of the alleged psychological harassment (see, to that effect, judgments of 24 February 2010, Menghi v ENISA, F‑2/09, EU:F:2010:12, paragraph 69, and of 12 May 2016, FS v EESC, F‑50/15, EU:F:2016:119, paragraph 109).

61      However, the burden of proof is different where a decision is challenged following a request for assistance based on the first paragraph of Article 24 of the Staff Regulations, under which the European Union is to assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or she or a member of his or her family is subjected by reason of his or her position or duties.

62      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 – particularly ones which are alleged to constitute psychological harassment – of which he or she claims to have been the victim actually took place, so that the institution concerned be 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 (see, to that effect, judgments of 26 January 1989, Koutchoumoff v Commission, 224/87, EU:C:1989:38, paragraph 16, and of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 80 and the case-law cited).

63      It is on the basis of the considerations set out in paragraphs 55 to 62 above that the applicant’s reliance, both in Case T‑671/18 and in Case T‑140/19, on psychological harassment of which he claims to have been the victim must be examined.

64      In that regard, it should be noted, first of all, that the facts on which the applicant relies are not presented exhaustively or structured, for example chronologically, in a part of his argument specifically concerned with the alleged harassment, but appear, sometimes repeatedly, throughout his pleadings.

65      Next, it must be pointed out that the facts on which the applicant relies do not, for the most part, include further details enabling them to be identified nor, a fortiori, appraised.

66      Furthermore, the applicant frequently makes unsubstantiated assertions. He puts forward very little material capable of substantiating the facts on which he relies. In particular, he does not sufficiently relate the voluminous annexes which he has produced to the claims which he makes in his written pleadings. Thus, he makes no reference in those documents, in a precise and reasoned manner, to internal administrative documents, such as emails, minutes or summaries of meetings, capable of proving the facts on which he relies.

67      However, it is possible to identify several events which appear to be considered by the applicant to constitute the psychological harassment of which he considers himself to be the victim.

68      It is therefore necessary, in the interests of the sound administration of justice and at the risk of a certain degree of interpretation to respond, as fully as possible, to the substance of the arguments put forward by the applicant, to examine, in chronological order, each of those events, in order to determine whether, taken together, they might reveal the existence of psychological harassment or of prima facie evidence of the attacks to which he claims to have been subjected.

69      In the first place, the applicant referred to difficulties during his move to Moscow in March 2016, the responsibility for which he attributes to his administration on the ground that he had not received a sufficiently early proposal from it for accommodation which could have been available from the time he arrived at his new place of employment.

70      The applicant also referred to a period of several months before he received, in November 2016, an ergonomic seat suited to his needs.

71      It must be held that those two events, relied on by the applicant during the pre-litigation procedure, cannot per se be regarded as abusive or as constituting prima facie evidence of psychological harassment. Furthermore, they must be assessed in the light of the constraints and complexity faced by the administration in organising the transfer of an EU official to an EU delegation located in a third country.

72      Furthermore, the applicant stated that the time he had to devote ‘to his defence’ to obtain an ergonomic seat could have been used to carry out the duties required by his position. It should be noted at this juncture that, from the early months of his transfer to Moscow, the applicant devoted part of his working time to procedural steps relating to his personal situation.

73      In the second place, the applicant submits that the Head of the Trade and Economic Section of the Delegation (‘the Head of Section’) made a remark which he described as discriminatory with regard to his physique, when he told him, during a meeting, in 2016, as follows: ‘You are so big.’

74      Even if that remark were made, the assessment it involves of the applicant’s physique is in no way insulting or disagreeable such as to undermine his self-esteem. It does not therefore constitute evidence, or even prima facie evidence, of the existence of psychological harassment.

75      In the third place, even if the Head of Section stated in 2016 that he and the applicant ‘cannot work together’, that single sentence cannot give rise to a presumption, contrary to the applicant’s contention, that his superior intended to threaten him. It does not therefore constitute evidence, or even prima facie evidence, of the existence of psychological harassment.

76      In the fourth place, the applicant refers to the rejection by his superiors of requests for additional rest under the flexible working-time arrangements. That argument, which is imprecise, appears to relate to two events.

77      First, although he obtained the prior consent of his superiors to be granted leave on 5 September 2016, his formal request was rejected.

78      It should be pointed out, however, that the applicant has neither established nor even claimed that the consent which he had obtained concerned a request based on compensatory rest in respect of the flexible working-time arrangements and not on a day of annual leave. In the absence of prior consent on that point, the refusal to grant the applicant’s request cannot, in any event, constitute evidence, or even prima facie evidence, of psychological harassment.

79      Furthermore, it is common ground that the applicant challenged that refusal by stating the following to his superiors:

‘Dear …

Please, refer to the rules in question. I suggest that you also review the timesheet and draw conclusions based on that. You replied too quickly.

…’

80      It is now appropriate to note the fairly sharp and critical tone of that message.

81      Next, despite the rejection of his request, the applicant did not go to work on 5 September 2016, which was considered by his superiors to be an unjustified absence.

82      It must be pointed out that the factors mentioned in paragraphs 80 and 81 above may have contributed to the emergence of tensions between the applicant and his superiors or to their intensification.

83      Second, the applicant wished to take part in a forum held in Astana (Kazakhstan) on 5 and 6 October 2017 and, for that purpose, he applied for the grant of a compensatory rest in respect of the flexible working-time arrangements because he did not wish to use days of annual leave for that purpose.

84      Taking the view that his workload had not justified the numerous hours of overtime which he had accumulated, the applicant’s superiors decided that his request could not be granted.

85      It must be borne in mind that although, under the first paragraph of Article 57 of the Staff Regulations, an official is entitled, per calendar year, to a minimum annual leave of 24 working days and no more than 30 working days, it has been held that a refusal to allow annual leave in order to ensure the proper functioning of the service cannot be regarded per se as an example of psychological harassment (see judgment of 9 March 2010, N v Parliament, F‑26/09, EU:F:2010:17, paragraph 78 and the case-law cited).

86      A fortiori, the two refusals of the applicant’s requests, which are examined in paragraphs 77 to 84 above, which concern the grant of compensatory rest in respect of the flexible working-time arrangements and not the official’s entitlement to annual leave, cannot, in themselves, and in the absence of any specific argument capable of demonstrating their abusive nature, constitute evidence, or even prima facie evidence, of psychological harassment.

87      In addition, as regards the second refusal, account must be taken of the fact that, as of the appraisal report drawn up for 2016, the applicant’s appraisers criticised him for unsatisfactory performance (see paragraph 167 above). In such a context, a refusal to grant a request for compensatory rest in respect of the flexible working-time arrangements appears even less capable of being regarded as abusive.

88      In the fifth place, the applicant refers to several missions in which his superiors refused his participation.

89      First, the applicant’s superiors refused to allow him to take part in a forum to be held in Sotchi on 27 and 28 February 2017.

90      The applicant stated that he had wished to recover the time spent on travelling to that forum, but that his superiors had not been able to inform him clearly whether that was possible.

91      In addition, the Director of the Legal Affairs Directorate of DG Human Resources and Security stated, in the decision rejecting the request for assistance at issue, that the applicant’s superiors had considered that the participation of only one member of the service was necessary and that it had decided that another member of staff would participate in the forum in question.

92      Second, the applicant’s superiors refused to allow him to take part in a mission to Tbilissi in March 2017. The applicant wished to travel there by car in order to be able to combine a tourist trip before his mission and requested that part of his journey time be taken into account as part of his mission. The applicant’s superiors then decided that only one member of the service, and not the applicant, would take part in the mission.

93      The Court finds that such refusals of the applicant’s requests cannot per se constitute evidence, or even prima facie evidence, of psychological harassment.

94      In view of the broad discretion enjoyed by the institutions in the organisation of their services, neither administrative decisions, even if they are difficult to accept, nor disagreements with the administration over questions relating to the organisation of services, can by themselves prove the existence of psychological harassment (judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 108). A decision to approve or refuse a mission certainly falls within the organisation of services (judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 98).

95      In addition, it appears that the applicant wished, for each of the missions in question, to have recuperation time for the journey.

96      It is clear from the documents in the file, in particular the testimony of the Deputy Head of the Delegation and of the Head of Administration of the Delegation, taken by the Investigation and Disciplinary Office of the Commission (IDOC) in February 2019 and April 2019 respectively, in the context of an administrative inquiry into the applicant’s conduct while in his post at the Delegation, that he tended to combine his missions with private trips, that sometimes he did not make this transparent and that his conduct made the processing by his superiors of administrative matters concerning his missions more complicated.

97      In such a context, the refusals to allow the applicant’s mission appear to be commensurably less abusive.

98      In the sixth place, the applicant relied on the refusal to approve an application for training in Brussels.

99      In that regard, as is clear from the documents before the Court, that training course, which was intended to be completed before transfer to a delegation, could not have been completed by the applicant prior to his arrival in Moscow, since no training of that kind was organised at that time. Lastly, a training course was possible for June 2017, that is to say more than a year after the applicant took up his duties in Moscow.

100    The applicant’s superiors informed him that they agreed to allow him to participate in that training course, but that his participation on the first and last days of the training course, of four days in total, was not necessary.

101    The applicant nevertheless submitted a request for the four-day training course, which he was refused.

102    It should be noted that such a refusal, despite the fact that it had been preceded by a proposal by the applicant’s superiors to limit the duration of participation in the training course to two days, cannot be regarded as abusive in the case of training in preparation for transfer to a delegation, the necessity of which, although the applicant had been in his post for more than a year at the Delegation, does not therefore appear immediately obvious. Such a refusal also cannot constitute evidence, or even prima facie evidence, of the existence of psychological harassment.

103    In the seventh place, according to the applicant, the Head of Section, unbeknown to the applicant, drafted a report in October 2017 which fell exclusively within the remit of the applicant’s portfolio. Furthermore, the Head of Delegation was aware of the fact that the applicant had not been consulted on that report.

104    In that regard, the applicant has not specified any of the circumstances relating to the event on which he relies, merely stating that it ‘had taken place before DG Trade’s mission to Moscow’. Thus, reliance on such an event cannot constitute evidence, or even prima facie evidence, of the existence of psychological harassment.

105    In the eighth place, the applicant referred to accusations by his superiors concerning his failure to comply with the applicable confidentiality procedure as regards the disclosure of the minutes of the meeting held on 30 October 2017 between the Russian Ministry of Foreign Affairs and the EBA. The applicant also refers to the organisation of an external meeting, the purpose of which he has not specified, which ultimately did not take place, or the existence of a report, sent in November 2017, the transmission of which was clearly approved by the Head of Section.

106    It should be noted that the applicant has not even adduced prima facie evidence of the unreasonable or abusive nature of the conduct in question. Nor has he provided the explanations necessary to understand the relevance of the evidence on which he relies.

107    In the ninth place, the applicant maintains that he was excluded by the Head of Delegation from a meeting held in March 2018 on Eurasian connectivity, a field in which the applicant was competent.

108    In that regard, it is apparent from the documents in the file that the applicant decided to prepare a draft note in that field of his own initiative. The fact that the applicant’s superiors did not react to the submission of the report and that he was not subsequently invited to take part in the meeting held in March 2018 does not constitute evidence, or even prima facie evidence, of abusive conduct, in particular as regards an initiative taken by the applicant rather than instructions given to him.

109    In the tenth place, the applicant mentions a series of events which took place in April and May 2018. The applicant asserts in that regard that the ‘adverse acts intensified’ after he informed his superiors, on 17 April 2018, that he was going ‘[to] [resort] to statutory defence measures against the earlier acts affecting [him] adversely’.

110    First, the applicant was excluded from a meeting held on 25 April 2018. However, that claim is not accompanied by sufficient details and thus it is not possible to establish even prima facie evidence of psychological harassment.

111    Second, in an email dated 26 April 2018, applicant’s Head of Delegation stated the following:

‘I am tired of your permanent and manipulative way of making up excuses for non-performance.’

112    Although the wording of the email of 26 April 2018 calls into question the applicant’s professional ethics, that email does no more than show that there were tensions between the applicant and his superiors, which result, at least in part, from his attitude, as is apparent from paragraphs 72, 79 to 82 and 95 to 97 above.

113    In that regard, it should be borne in mind that the fact that an official has difficult, or even conflictual, relations with his or her colleagues or superiors does not in itself constitute proof of psychological harassment (see judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 78 and the case-law cited).

114    In addition, the applicant maintains that the criticisms made by the Head of Delegation in the email of 26 April 2018 were made in reference to the extension, several months previously, of a break to lunch beyond the scheduled times. As is apparent from the application in Case T‑671/18, the applicant himself acknowledges that he did not comply with working hours on that occasion. Although he now attempts to justify his late return to work, in particular by his state of health, he has not adduced any evidence capable of supporting his assertions. In those circumstances, it does not appear unusual, in the context of tensions between the applicant and his superiors, as established in paragraph 112 above, that a failure to observe office hours could lead the Head of Delegation to react by expressing a certain exasperation, without his reaction being capable of being regarded as exceeding the limits of reasonable criticism.

115    Consequently, the email cited in paragraph 111 above cannot constitute evidence, or even prima facie evidence, of the existence of psychological harassment.

116    Third, the applicant states that he had refused to take part in a particular evening event which took place in an embassy on the eighth day following his return from sick leave solely on the ground that he would then have been forced to work for two consecutive weeks, of up to 10 or 12 hours per day, without any day of rest. However, he has not produced any evidence capable of supporting those assertions. Nor has he established that the Head of Section and the Head of Delegation had considered that his unavailability for that evening event was unacceptable or that he had ‘sabotaged’ the work of the Delegation on that occasion.

117    Moreover, even if the remarks referred to in paragraph 116 above were confirmed, they could not, in the absence of additional explanations supported by evidence, be regarded as abusive. They too cannot constitute evidence, or even prima facie evidence, of the existence of psychological harassment.

118    Fourth, the applicant relies on a note of 29 May 2018 sent by the Head of Delegation, in which he stated that the applicant had infringed certain rules applicable to missions carried out by members of staff of the Delegation (‘the Note of 29 May 2018’). The applicant claims that the disclosure of the Note of 29 May 2018 to several recipients within the EEAS and the Commission has damaged the applicant’s professional reputation. The applicant considers that that note was adopted in order to undermine his credibility. The applicant adds that the Head of Delegation used ‘elaborate manipulation techniques’.

119    In that regard, it is not apparent from the wording of the Note of 29 May 2018 that the Head of Delegation exceeded the limits of reasonable criticism, since, first, that note is based on a body of detailed evidence relating to the missions to be carried out in Sotchi and Erevan (Armenia) and, second, the tone used in that note is measured.

120    Furthermore, the applicant’s arguments concerning that note are not convincing. In that regard, the applicant relies on a ‘relevant legal and procedural nuance’ which, in his view, would allow a staff member wishing to take part in a mission to record, at a stage subsequent to the mission order, detours of a private nature. However, he has not specified the provision allegedly constituting the textual legal basis for such a ‘nuance’. Furthermore, the applicant has not provided the mission itinerary on which he relies when he states that, during a mission, the Delegation itself introduced a fictional mission route despite the fact that he had provided the real itinerary for his mission. Lastly, the applicant has not responded to the concerns, in terms of safety, raised by the Head of Delegation, who reiterated that it was necessary, in the case of missions in third countries, for the Delegation to know in advance of any private detours carried out by its officials during their journey.

121    The matters relied on by the applicant in relation to the Note of 29 May 2018 cannot therefore be regarded as indicative of abusive conduct. They also do not constitute prima facie evidence of psychological harassment.

122    Fifth, the applicant relies on the fact that his superiors refused to allow him to take part in an international economic forum, the SPIEF, which took place from 24 to 26 May 2018 in Saint Petersburg.

123    In that regard, the applicant has adduced no specific evidence to suggest that such a refusal by the Head of Delegation to his request to participate in the SPIEF was abusive. In essence, the applicant merely relies on ‘previous agreements concluded within the section’ or on a ‘subsequent’ statement by the Head of Delegation at a ‘daily briefing in June 2018’, without giving any further details. He has not therefore adduced even prima facie evidence of psychological harassment.

124    In addition, it is apparent from the decision rejecting the request for assistance at issue that the applicant had been informed by his superiors that the Head of Delegation had decided to reduce the number of members of the Delegation attending that forum since there were no ‘high-level’ EU participants.

125    In the absence of precise and convincing evidence to support a contrary interpretation, such an explanation appears reasonable.

126    In the eleventh place, the applicant claims on several occasions that the criticism he received from his superiors as to the inadequacy of his performance was unjustified. In his view, his superiors should have taken into account the time he devoted to the administrative procedures which he initiated to defend himself. In particular, the applicant maintains that the Head of Delegation criticised him for having been late in submitting a report on an economic forum, although that delay was justified, according to the applicant, by the fact that he was preparing a claim under the Staff Regulations.

127    The applicant thus claims that his unsatisfactory performance resulted from a lack of availability due to the time he spent on the procedures which he had initiated pursuant to Articles 24 and 90 of the Staff Regulations.

128    The explanation which the applicant puts forward, even if proved, is not capable of establishing that the criticism levelled at him concerning his performance was not objectively justified. An official must be available to his or her institution at any time during his or her normal working hours in order to carry out his or her professional activity.

129    In that regard, it should be noted that the steps taken under Articles 24 and 90 of the Staff Regulations are not among the services which an official provides in the performance of the duties assigned to him or her in the post to which the administration, in accordance with Article 7(1) of the Staff Regulations, assigns that official by appointment or transfer in a function group which corresponds to his or her grade. They cannot therefore fall within the scope of ability, efficiency or conduct in the service of the official concerned, which are the subject of a staff report, in accordance with Article 43 of the Staff Regulations. The applicant is therefore not justified in maintaining that the Commission should have taken account of his ‘performance related to his defensive steps’ in order to assess his productivity.

130    In the twelfth place, even if the applicant does claim that the appraisal reports drawn up since his arrival at the Delegation constitute alone conduct contributing to the psychological harassment to which he considers himself to be a victim, it should be noted that neither the content of his appraisal reports nor the measured tone used in those reports makes it possible to establish that they are abnormal or abusive.

131    It is not possible from the arguments put forward by the applicant to call into question the finding set out in paragraph 130 above.

132    The applicant complains, in the context of the appraisal exercise for 2016, of the insufficient effort of his Head of Section to treat staff fairly, without adducing any evidence in support of that assertion.

133    Similarly, by attempting to justify the delay in carrying out a task, which he does not identify, by exercising the right to bring an action and by merely complaining, without further explanation, of the ‘setting up to fail’ allegedly constituted by the Head of Section’s decision not to allow him to work at weekends, the applicant has not adduced any evidence to suggest that there was wrongful conduct on the part of the Head of Section towards him which would have had an impact on his appraisal in 2017.

134    The applicant also maintains that he was unable to submit his observations in the 2017 appraisal exercise. However, he has not adduced any evidence that his assertions are true, although there was dialogue both with the reporting officer and the appeal assessor (see paragraphs 11 and 14 above). The applicant cannot therefore legitimately claim that he was the victim, during the 2017 appraisal exercise, of a form of psychological harassment which allegedly took the form of rejection by his superiors of his request for dialogue.

135    Moreover, the fact that, in the context of the 2017 appraisal exercise, the new Head of Delegation confined himself, three months after the applicant’s arrival, to confirming his predecessor’s assessment of the applicant’s performance does not constitute evidence that the Head of Delegation’s attitude towards the applicant was hostile, which, according to the latter, consisted of covering, by confirming a biased assessment, the harmful actions of the Head of Section towards him.

136    As regards the applicant’s claim that, in the 2017 assessment report, both the Head of Delegation and the reporting and appeal officers sidestepped their responsibility to monitor the harmful conduct on the part of the Head of Section relating to ‘the applicant’s alleged disregard for instructions’, that claim has not been proved.

137    In addition, the applicant makes accusations in that regard against the Head of Section, referring to ‘deliberate manipulation’ and ‘(pathological) predispositions for giving subjective information … aimed at manipulating the perception of other persons’. Those allegations form further evidence of an attitude by which the applicant himself may have contributed to increased tensions with his superiors (see paragraph 112 above).

138    Even if, lastly, the applicant claims that his non-promotion constitutes, in itself, an act contributing to the psychological harassment of which he considers himself to be a victim, he has not adduced any evidence to suggest that such non-promotion was abusive.

139    It follows from the considerations set out in paragraphs 130 to 138 above that the applicant has not even adduced prima facie evidence of psychological harassment.

140    In the thirteenth place, the applicant refers to abusive conduct on the part of his superiors in connection with the accusations of domestic violence against him made by his wife and with the existence of an IDOC inquiry (see paragraph 96 above) concerning, inter alia, his private life during the period when he was posted to the Delegation. He adds that the accusations of domestic violence made by his wife were communicated to his superiors and were the cause of ‘attacks’ against him.

141    It must be held that those allegations are vague and lacking in detail. The only evidence to which the applicant refers in that regard is the existence of a defamation campaign conducted by the Head of Delegation against him. For the purposes of supporting his statements, the applicant relies on extracts from transcripts of voice messages from a member of staff of the Delegation in November 2019. The applicant requests that that member of staff be summoned as a witness in the proceedings before the Court (see paragraph 43 above).

142    However, the extracts quoted are not conclusive. They are not sufficiently precise to substantiate the existence of a campaign of defamation against the applicant by the Head of Delegation. They merely concern ‘rumours’ relating to the accusations of domestic violence against the applicant, which were starting to ‘circulate’ within the Delegation, and not precisely defined conduct allegedly adopted by the Head of Delegation or another of the applicant’s superiors. It is also stated that ‘there seems to be somewhere in the management or headquarters some official version of these’.

143    It follows from the foregoing that the evidence relied on by the applicant cannot be regarded as demonstrative of abusive conduct. Nor does it constitute prima facie evidence of psychological harassment.

144    Furthermore, since the extracts from the transcripts of voice messages presented by the applicant are inconclusive and the official who left those messages makes no reference to any specific event which he directly witnessed, there is no need to order the measure of inquiry requested (see paragraph 141 above).

145    In the fourteenth place, the applicant cites extracts from documents sent to him by IDOC in connection with the administrative inquiry procedure concerning him.

146    According to the applicant, some of those extracts prove that there was a ‘concerted plan’ drawn up against him by his superiors both at the Commission’s headquarters and at the Delegation. They also allegedly make it possible to establish the intention of his superiors to ‘build a case’ against him and to apply special and unfavourable treatment to him.

147    Those extracts originate from an email exchange on 1 August 2018 between the Head of Delegation and his point of contact at the EEAS, a copy of which was copied to the official following the case within DG Trade. In the course of that exchange, the Head of Delegation stated that he requested that the matter be referred to one of the members of the management of DG Trade, who, in a previous email, had urged him to ‘exercise a zero tolerance policy vis-à-vis [the applicant’s] hitherto known escapades’. As regards the point of contact at the EEAS, he stated that he recommended that ‘the Delegation continues to keep record of any breach of administrative responsibilities (for example, absence without approved leave), which may be useful in any future procedure’.

148    Contrary to the applicant’s assertions, such extracts confirm only the existence of tensions between the applicant and his superiors, who, as stated in paragraph 112 above, stem, at least in part, from the applicant’s attitude, as is also apparent from paragraphs 114 and 137 above. Such extracts do not therefore constitute evidence, or even prima facie evidence, of the existence of psychological harassment.

149    Furthermore, contrary to what the applicant claims, it cannot be inferred from the extracts in question that his superiors were prejudiced against him as a result of the accusations of domestic violence made against him. Those extracts make no reference to those accusations; they relate to the applicant’s alleged breaches of his professional duties, be they unauthorised absences or ‘escapades’, the latter term of which must be understood, in the absence of any other plausible explanation, as referring to the applicant’s superiors’ criticism that he tended to combine his missions with private trips (see paragraph 96 above).

150    It follows from all of the foregoing considerations that none of the facts relied on by the applicant reveals the existence of improper conduct capable of amounting to ‘psychological harassment’. None of that conduct can be regarded as objectively sufficiently real, in the sense that an impartial and reasonable observer, of normal sensitivity and in the same situation, would consider it to be excessive and open to criticism (see paragraph 58 above).

151    It should be pointed out that the applicant has not even adduced prima facie evidence that the attacks to which he claims to be the subject are true (see paragraphs 61 and 62 above).

152    The conclusions set out in paragraphs 150 and 151 above also apply where the facts at issue are examined together as part of a general working environment (see paragraph 59 above).

B.      Case T‑671/18

153    The applicant submits a claim for annulment of the contested decisions and of the decision of 13 March 2019 rejecting the complaint, and also a claim for damages to compensate the harm resulting from the abovementioned decisions and from the Commission’s inaction following the request for assistance made in the complaint lodged on 13 November 2018. The Court considers it appropriate to begin by examining the claim for annulment.

1.      The claim for annulment

154    The applicant puts forward, in essence, seven pleas in law, alleging, first, lack of transparency and breach of Article 25 of the Staff Regulations; second, breach of the rights of the defence, the right to be heard and Article 41 of the Charter of Fundamental Rights of the European Union; third, a manifest error of assessment of the interest of the service; fourth, breach of the principle of sound administration; fifth, disregard for the status of whistleblower provided for in Article 22a of the Staff Regulations; sixth, breach of the duty to have regard for the welfare of staff; and, seventh, misuse of powers.

155    The Court considers it expedient to examine each of those complaints in turn.

(a)    The first plea: lack of transparency and infringement of Article 25 of the Staff Regulations

156    The applicant maintains that, owing to the lack of information provided by the Commission concerning his alleged professional inadequacy and his alleged misconduct, he was unable to ascertain the reasons for his transfer.

157    The applicant states that the Commission refused to give him details of his alleged wrongful conduct and of his alleged underperformance. Similarly, he claims that it refused to send him the date of the first discussions relating to his transfer between DG Trade and DG Human Resources and Security, despite that information being necessary for his defence.

158    Furthermore, the applicant takes the view that the allegations of wrongful acts on which the Commission relied in deciding on his transfer should have been investigated by the competent departments in order to prevent the Commission from adopting arbitrary decisions based on a certain ‘bias’.

159    The applicant also relies on the existence of civil divorce proceedings for domestic violence brought by his wife before the Polish courts, claiming that the Commission took those proceedings into account in deciding to transfer him to Brussels.

160    The Commission submits that the plea must be rejected.

161    As a preliminary point, it must be borne in mind that the obligation to state reasons established by Article 296 TFEU is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate although it sets out reasons which are incorrect. It follows that objections and arguments intended to establish that a measure is not well founded are irrelevant in the context of a plea in law alleging an inadequate statement of reasons or a lack of such a statement (judgment of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 37).

162    In that regard, it should be noted that the applicant’s arguments referred to in paragraphs 158 and 159 above, which are based on the Commission being prejudiced towards him – allegedly the real reason for the transfer decision – relate to the merits of the transfer decision and not to its statement of reasons. Furthermore, they concern the plea alleging misuse of powers. Those arguments must therefore be examined in connection with that plea.

163    Furthermore, the Court notes that, pursuant to Article 25 of the Staff Regulations, any decision relating to a specific individual which is taken under the Staff Regulations and adversely affects an official is to state the grounds on which it is based. The obligation to state reasons laid down by that provision, which merely reiterates the general obligation laid down in the second paragraph of Article 296 TFEU, is intended, first, to provide the person concerned with details sufficient to allow him or her to ascertain whether the measure is well founded and whether it is appropriate to bring proceedings before the Court and, second, to enable the Court to review the legality of the measure (see judgment of 9 July 2019, VY v Commission, T‑253/18, not published, EU:T:2019:488, paragraph 48 and the case-law cited).

164    Although a statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the institution concerned, it must be assessed by reference to the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the person concerned may have in obtaining explanations. It is thus not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 12 September 2018, De Geoffroy and Others v Parliament, T‑788/16, not published, EU:T:2018:534, paragraph 50 and the case-law cited).

165    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 13 December 2017, CJ v ECDC, T‑692/16, not published, EU:T:2017:894, paragraph 116 and the case-law cited).

166    In the present case, the transfer decision refers to the note of 14 September 2018 (see paragraph 3 above). In the introductory paragraph of the transfer decision, the Commission recalls that the applicant was informed by that note of its intention to transfer him to OLAF.

167    In the note of 14 September 2018, the Commission, after pointing out the specific nature and high level of expectations of an official posted to a delegation, stated that its intention to transfer the applicant was due to his difficulties in performing his duties as a trade affairs manager. It stated that he had not demonstrated the behaviour and flexibility necessary to adapt to that environment and had not met the expected requirements. It added that the need to improve his performance had already been highlighted in his 2016 and 2017 appraisal reports, but that no improvement had been found.

168    By letter of 26 September 2018, the applicant claimed, inter alia, that his underperformance resulted from the conduct of his superiors towards him, which had had a negative effect on both his performance and his general well-being. The applicant further claimed that such a transfer undermined the procedures which he had initiated on the basis of Articles 24 and 90 of the Staff Regulations, which were then pending.

169    In response to the applicant’s observations, the Commission stated, in the transfer decision, that the applicant’s professional performance gave rise to major concerns for his superiors. It added that the applicant had been informed of this both by his superiors and in his 2016 and 2017 appraisal reports. Lastly, the Commission pointed out that corrective action had been suggested, but that that suggestion did not appear to have had the desired results.

170    It follows from the matters set out in paragraphs 167 and 169 above that the applicant was in a position to understand that the transfer decision had been adopted on the basis of two grounds, namely, first, his unsatisfactory performance and, second, failure to improve his performance.

171    It is true that the Commission also stated in the transfer decision, in response to a comment made by the applicant, that a transfer in the interest of the service would not prejudice the outcome of other proceedings, initiated by the applicant pursuant to Article 90 of the Staff Regulations. It added that, in so far as the applicant claimed that his working environment within the Delegation had had an adverse effect on his health, it hoped that his return to Brussels and reintegrating OLAF would help improve his situation.

172    In addition, the Commission informed the applicant that the date of his taking up duty in OLAF should be 1 December 2018 in order to allow him the necessary time to find appropriate accommodation for himself and his family. It also provided him with details of his new assignment.

173    However, the matters mentioned in paragraph 171 above were intended to respond to the applicant’s observations only and did not constitute new grounds added to those set out in the note of 14 September 2018 and reiterated in the transfer decision. As regards the matters mentioned in paragraph 172 above, they consist of mere clarification of the arrangements for the transfer.

174    Similarly, by letter of 29 October 2018, the Commission merely confirmed to the applicant the date of his assignment to OLAF and provided him with practical information concerning his return (see paragraph 7 above) without adding further reasons to those which it had enumerated in the transfer decision.

175    It follows from all the foregoing considerations that the applicant had sufficient information to assess whether the transfer decision was well founded and whether it was appropriate to bring an action before the Court.

176    It should be added that the transfer decision was adopted in circumstances in which the Commission’s concerns regarding the applicant’s performance were known to him (see paragraphs 12, 15 and 169 above).

177    Furthermore, since it is not necessary for the statement of reasons to specify all the relevant facts and points of law (see paragraphs 164 and 165 above), the Commission was not required to give the applicant more detail concerning the ‘wrongs’ of which he was accused or his unsatisfactory performance. Nor was the Commission required to inform him of the date on which DG Trade first contacted DG Human Resources and Security regarding his transfer, or required to open a preliminary investigation in order to satisfy the obligation to state reasons incumbent on it.

178    Lastly, the decision of 13 March 2019 rejecting the complaint was adopted after the present action had been brought (see paragraph 35 above). Therefore, the applicant, who chose to avail himself of Article 91(4) of the Staff Regulations, cannot legitimately rely on any failure to state reasons vitiating the decision of 13 March 2019 rejecting the complaint.

179    In any event, the Commission, in the decision of 13 March 2019 rejecting the complaint, rejected the arguments raised against the transfer decision by the applicant and confirmed that decision and the grounds on which it was based. It thus substantiated the statement of reasons for the transfer decision, which was already sufficient.

180    In the light of all the foregoing considerations, the plea alleging infringement of the obligation to state reasons must be rejected.

(b)    The second plea: infringement of the rights of the defence, of the right to be heard and of Article 41 of the Charter of Fundamental Rights

181    The applicant maintains that, as he was not informed of the reasons for his transfer, he was not in a position to express his views and his rights of defence were therefore not observed, nor was his right to be heard, as set out in Article 41 of the Charter of Fundamental Rights.

182    Furthermore, the applicant claims that his lack of availability for work, which led to the finding that his performance was unsatisfactory, was attributable to the time which he devoted to implementing the procedures provided for in Articles 24 and 90 of the Staff Regulations in order to defend himself against his superiors’ actions against him.

183    The applicant further maintains that the decision to transfer him was taken with the aim of punishing him for the steps which he had taken to defend himself.

184    The applicant also puts forward a complaint alleging breach of the principle of the presumption of innocence. He maintains that his right to a presumption of innocence was breached since he was the victim of bias on the part of his employer, who did not verify the truth of his wife’s allegations of domestic violence or allow him to contest them before deciding to transfer him.

185    The Commission submits that the plea must be rejected.

186    As a preliminary point, the Court notes that the argument that the purpose of the transfer decision was to punish the applicant (see paragraph 183 above), and also the complaint relating to breach of the principle of the presumption of innocence (see paragraph 184 above), in so far as they presuppose that the Commission prejudiced the applicant, and which would constitute the real reason for the transfer decision, concern an allegation of misuse of powers. Those arguments must therefore be examined in connection with that plea.

187    As regards the complaint referred to in paragraph 181 above, alleging failure to communicate the reasons for the transfer decision, suffice it to state that the applicant, contrary to what he claims, was informed in advance, by the note of 14 September 2018, of the reasons for his transfer (see paragraph 167 above) and that he was able to submit his observations on those reasons in the letter of 26 September 2018 (see paragraphs 4 and 168 above).

188    The complaint therefore has no factual basis and must be rejected.

189    As regards the complaint referred to in paragraph 182 above, relating to the time devoted by the applicant to the preparation of his requests and complaints, it should be noted that such a complaint is ineffective in respect of a plea alleging breach of the rights of the defence, of the right to be heard and of Article 41 of the Charter of Fundamental Rights. That complaint does not seek to establish the illegality of the procedure culminating in the adoption of the transfer decision, but relates to the merits of the grounds for it, namely the applicant’s unsatisfactory performance and the lack of improvement in that regard. In any event, that complaint is unfounded, as is apparent from the considerations set out in paragraphs 127 to 129 above.

190    In view of the foregoing, the second plea must be rejected in its entirety.

(c)    The third plea: manifest error in the assessment of the interests of the service

191    The applicant maintains that the grounds advanced by the Commission for adopting the transfer decision, namely his underperformance and failure to improve his performance, are unlawful since they are vitiated by a manifest error in the Commission’s assessment of the interests of the service.

192    The applicant divides this plea into five limbs. The first limb alleges failure to take account of the ongoing procedure initiated under Articles 24 and 90 of the Staff Regulations. The second limb alleges that the transfer decision is based on selective use of the content of the applicant’s appraisals in order to justify the interest of the service in transferring him to Brussels. The third limb alleges that the transfer decision disregards the substantial change in the situation which occurred in the Delegation. The fourth limb alleges failure to take into account relevant situations which were the subject of requests and complaints under Articles 24 and 90 of the Staff Regulations which, although prior to the contested decisions, were at the origin of procedures still ongoing at the time when those decisions were adopted. The fifth limb alleges that the Commission, in relying on medical grounds to justify the applicant’s transfer, vitiated its decision by a manifest error of assessment.

193    The Commission submits that the plea must be rejected.

194    It should be noted at the outset that the first subparagraph of Article 7(1) of the Staff Regulations provides that ‘[the administration] shall, acting solely in the interest of the service and without regard to nationality, assign each official by appointment or transfer to a post in his function group which corresponds to his grade’.

195    According to the case-law, the institutions have a broad discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, on condition that the staff are assigned in the interest of the service. That broad discretion is exercised on condition, however, as follows from Article 7 of the Staff Regulations, that such assignment be in the interest of the service and the post in the function group correspond to the grade (judgments of 21 June 1984, Lux v Court of Auditors, 69/83, EU:C:1984:225, paragraph 17, and of 7 March 1990, Hecq v Commission, C‑116/88 and C‑149/88, EU:C:1990:98, paragraph 11; see also, to that effect, judgment of 4 December 2018, Schneider v EUIPO, T‑560/16, not published, EU:T:2018:872, paragraphs 54 and 82).

196    As regards the definition of the interests of the service, first, it must be recalled that that concept, within the meaning of Article 7(1) of the Staff Regulations, relates to the smooth running of the institution in general and, in particular, to the specific requirements of the post to be filled (judgment of 9 July 2019, VY v Commission, T‑253/18, not published, EU:T:2019:488, paragraph 72).

197    Second, according to settled case-law, the obligation for the EU institutions to assign their staff solely in the interests of the service applies even where it is likely to entail a change in the place of employment not desired by the staff member concerned (judgment of 11 July 1996, Aubineau v Commission, T‑102/95, EU:T:1996:104, paragraph 28; see also, to that effect, judgment of 14 July 1988, Aldinger and Virgili v Parliament, 23/87 and 24/87, EU:C:1988:406, paragraph 17). Moreover, reassignment in the interest of the service does not require the consent of the official concerned (judgments of 22 January 1998, Costacurta v Commission, T‑98/96, EU:T:1998:6, paragraph 40, and of 7 June 2018, OW v EASA, T‑597/16, not published, EU:T:2018:338, paragraph 79; see also, to that effect, judgment of 24 February 1981, Carbognani and Coda Zabetta v Commission, 161/80 and 162/80, EU:C:1981:51, paragraph 28).

198    Third, having regard to the extent of the institutions’ discretion in evaluating the interests of the service, the review undertaken by the Court of whether that condition has been respected must be confined to the question whether the administration remained within reasonable limits and did not use its discretion in a manifestly wrong way (see judgment of 28 October 2004, Meister v OHIM, T‑76/03, EU:T:2004:319, paragraph 64 and the case-law cited).

199    In that regard, according to the case-law, an error is manifest only where it can be readily detected, in the light of the criteria to which the legislature intended the exercise of a decision-making power to be subject. Consequently, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of a decision, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the challenged assessment may be accepted as being still true or valid (see judgment of 24 September 2019, VF v ECB, T‑39/18, not published, EU:T:2019:683, paragraph 110 and the case-law cited).

200    It is in the light of the foregoing considerations and the limited scope of the review of legality incumbent on the Court that the first plea must be examined.

(1)    The first limb: failure to take account of the ongoing procedure initiated under Articles 24 and 90 of the Staff Regulations

201    This limb of the plea is, in essence, comprised of two parts. In the first part, the applicant claims that there is a link between his unsatisfactory performance and his alleged psychological harassment. In view of that link, the applicant maintains that the transfer decision, which is based on an incorrect assessment of his performance, is vitiated by a manifest error in the assessment of the interests of the service. Furthermore, the unlawful conduct which the applicant reported corresponds to various categories of act which the European Agency for Safety and Health at Work (EU-OSHA) considers to be acts of harassment. In the second part, the applicant claims that the transfer decision is unlawful in so far as a procedure initiated under Articles 24 and 90 of the Staff Regulations was still pending at the time of its adoption.

202    As regards the first part, as is apparent from the grounds set out in paragraphs 64 to 152 above, not only is there no evidence of the alleged harassment, but the applicant has not even adduced prima facie evidence of attacks of which he claims to have been victim. Furthermore, the applicant has not adduced any evidence to suggest that the reprehensible conduct of which he complains falls within categories of conduct recognised by the EU-OSHA as examples of psychological harassment. In those circumstances, the applicant is also not justified in relying on the definition which the EU-OSHA would give of psychological harassment.

203    Consequently, the first part of the first limb of the third plea must be rejected as having no factual basis.

204    As regards the second part, the applicant disputes the lawfulness of the transfer decision on the ground that it was adopted despite the fact that he had relied on his situation as a victim of psychological harassment in the course of various proceedings still pending at the time that that decision was adopted.

205    In that regard, first, the applicant, who invokes the principle of sound administration, must be regarded as calling into question the impartiality of the decision-maker of the transfer decision.

206    It should be recalled that Article 41 of the Charter of Fundamental Rights enshrines the principle of sound administration and that it follows from Article 41(1) of that charter that every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.

207    According to the case-law, the fact that a staff member has lodged a complaint of harassment against the official who is to assess his or her professional performance cannot of itself, without more, call into question the impartiality of the person against whom the complaint has been lodged (see judgment of 8 November 2018, QB v ECB, T‑827/16, EU:T:2018:756, paragraph 94 and the case-law cited).

208    In the present case, the transfer decision was adopted by an official of DG Human Resources and Security (see paragraph 5 above) and not by a member of the applicant’s superiors within the Delegation, or even the EEAS or DG Trade, which allegedly harassed the applicant.

209    Given that the authority which adopted the transfer decision and the persons allegedly involved in the acts of harassment alleged are not the same, and also the absence of obvious or evidenced links between them, a fortiori the case-law cited in paragraph 207 above applies.

210    Second, it should be noted that the case-law requires the official concerned to adduce prima facie evidence of the attacks of which he or she claims he or she is the victim so that the institution concerned be under an obligation to take the necessary measures (see paragraph 62 above). An obligation imposed on the administration, in the case of ongoing proceedings relating to the alleged existence of psychological harassment, to suspend the adoption of any act adversely affecting the official concerned, where he or she has not adduced prima facie evidence of the attacks to which he or she claims to have been subjected, would create too great a risk of paralysis on the part of the EU institutions in the management of their staff. In the present case, as is apparent from the grounds set out in paragraphs 64 to 152 above, not only is there no evidence of harassment, but the applicant has not even adduced prima facie evidence of attacks of which he claims to have been victim. Accordingly, the administration was not required, in the absence of such prima facie evidence, to refrain from adopting any act adversely affecting the applicant for the purposes of managing the applicant effectively.

211    Third, even if, in the present case, the transfer decision was not adopted on a ground relating to the protection of the applicant’s interests, it did nevertheless have the effect of removing the applicant from his then working environment, which was responsible for the alleged harassment. Despite the applicant’s – unsubstantiated – assertions (see paragraphs 283 and 284 below) that the transfer decision aggravated his health problems, such a decision, by its very purpose, does not appear unfavourable to a person who considers himself to be the victim of harassment.

212    Thus, by reason of its very purpose, the transfer decision could, or even had to, be adopted even before the proceedings initiated by the applicant under Articles 24 and 90 of the Staff Regulations had been closed.

213    Fourth, the applicant had submitted, as early as 26 January 2018, the request for assistance at issue concerning the alleged acts of harassment. That request was rejected in a decision of 28 May 2018, that is to say, before the adoption of the transfer decision. It is true that the applicant lodged a complaint against that decision and the procedure for examining that complaint was ongoing when the transfer decision was adopted. Furthermore, the applicant appears to rely on other procedures. However, the request for assistance at issue had already been the subject, at the date of adoption of the transfer decision, of a preliminary examination which led to the position adopted by the administration.

214    In the light of all the foregoing, the second part of the first limb of the third plea must be rejected, as must the first limb in its entirety.

(2)    Second limb: selective use of the content of the applicant’s appraisals in order to justify the interest of the service

215    The applicant submits, in support of the second limb of the third plea, that the Commission vitiated its assessment of the interests of the service in a manifest error by referring only to the assessments of his superiors and the appraisers of his performance and not to the objective evidence which he had reported during the 2016 and 2017 appraisal exercises.

216    First, the applicant claims that his Head of Section did not take account of ‘objective factors’ which justified the delay in carrying out a ‘certain task’ and refers, in that regard, to his right under the Staff Regulations to bring an action.

217    However, the applicant does not explain, even summarily, how the exercise of his right under the Staff Regulations to lodge an action would not have enabled him to comply with the time limits imposed on him to carry out the task in question.

218    Furthermore, as is apparent from the reasons set out in paragraphs 127 to 129 above, the applicant is not justified in claiming that the Commission should have taken account of his steps under Articles 24 and 90 of the Staff Regulations in order to assess his performance.

219    Second, the applicant submits that he was unable to submit observations on the contribution of the Head of Delegation to his appraisal reports before that contribution was recorded in the staff management information system known as ‘Sysper 2’. However, he has not adduced any evidence in support of that assertion. It should be added that the applicant was able to submit his observations in that regard before the appraisal report was definitively drawn up, since he had the right to appeal, of which he availed himself in respect of the 2017 appraisal report (see paragraph 13 above).

220    Third, the applicant complains of a ‘manipulation’ by his Head of Section, which consisted of making the Head of Delegation believe that he deliberately ignored some of his instructions. However, he has not adduced any evidence in support of that assertion.

221    Fourth, the applicant complains of a lack of dialogue with his superiors, but provides no evidence in that regard, despite the fact that, as regards the 2017 appraisal exercise, there was dialogue both with the reporting officer and the appeal assessor (see paragraphs 11 and 14 above).

222    It follows from the foregoing that not only has the applicant not adduced any evidence to prove the facts on which he relies, but he has also not demonstrated that those facts, if proved, would reveal a lack of objectivity in the appraisal of his performance. Similarly, the applicant has not established that when the Commission adopted the transfer decision it should have taken specific measures to ensure that its assessment was objective.

223    In those circumstances, the second limb of the first plea must be rejected.

(3)    The third limb: disregard for the substantial change in the situation which occurred in the Delegation

224    The applicant maintains that the Commission adopted the transfer decision without taking into account the substantial improvement in his working conditions which occurred with the departure of the Head of Section and which enabled him to reveal his high level of expertise.

225    As a preliminary point, it should be noted that the Commission informed the applicant on 14 September 2018 that it intended to transfer him (see paragraph 3 above).

226    As is apparent from the documents in the file, in particular the testimony provided by the Head of Section in response to the questions put by IDOC in the context of the investigation concerning the applicant (see paragraphs 96 and 140 above), the Head of Section left the Delegation at the end of August 2018, that is to say, less than 15 days before 14 September 2018.

227    Therefore, in the light of the circumstances of the present case, it is unlikely that a sufficiently significant improvement in the applicant’s performance, capable of calling into question a finding based on his two previous appraisal reports (see paragraphs 167 and 169 above) could have taken place during such a brief period.

228    Even if the date of the transfer decision itself were required to be taken into account, since it was adopted on 12 October 2018 (see paragraph 5 above), that is to say, less than a month and a half after the Head of Section had left, it is unlikely that a sufficiently significant improvement in the applicant’s performance, capable of calling into question a finding based on his two previous appraisal reports occurred during such a brief period.

229    In any event, the evidence relied on by the applicant does not establish that the Commission erred in relying on his unsatisfactory performance when it adopted the transfer decision.

230    First, the applicant claims that the new Head of Delegation indirectly acknowledged that his unsatisfactory performance was linked to the poor managerial practices of the Head of Section.

231    In that regard, in January 2018, in his contribution to the applicant’s appraisal, the new Head of Delegation wrote as follows:

‘My advice to [the applicant] for 2018 was: … to make use of the arrivals of new HoD and HoS to improve his performance …’

232    It is clear from the wording of that extract that, by his contribution, the new Head of Delegation, who himself arrived on 1 October 2017, encouraged the applicant to take advantage of his own new posting and that of the future Head of Section in order to improve his performance.

233    The advice to the new Head of Delegation cannot, therefore, be interpreted either as meaning that he shares the applicant’s negative assessment of the conduct of the Head of Section, or as accepting that the applicant’s unsatisfactory performance is linked to such behaviour.

234    Furthermore, the comments of the new Head of Delegation do not demonstrate a substantial change in the applicant’s performance, since, on the one hand, it predates the replacement of the Head of Section deemed to be the cause of the improvement of that performance and, on the other hand, it implies only that the new Head of Delegation considers that the applicant’s performance could be improved.

235    Second, the applicant states that he produced ‘three in-depth reports’, two of which were considered to be very useful by DG Trade. The applicant relies in that regard on an assessment by a deputy head of unit in DG Health and Consumer Protection, allegedly dated 13 November 2018, according to which he received an excellent report of the applicant ‘that puts the tobacco traceability system in a much broader perspective’.

236    However, the applicant did not produce the document containing such an assessment. Nor did he explain why DG Health and Consumer Protection, for which he was not responsible, had received one of his reports.

237    Third, the new Head of Section identified ‘the applicant’s great expertise’ in ‘related’ areas and was prepared to engage in dialogue, unlike his predecessor. However, the applicant has not adduced any evidence in support of his argument, which does not specify the areas or types of expertise to which he refers.

238    Although the applicant also relies on ‘a number of substantive arguments’ put forward in his observations of 26 September 2018, he does not repeat them in support of this complaint.

239    It follows from all of the foregoing considerations that the third limb of the third plea must be dismissed.

(4)    Fourth limb: omission of relevant situations subject to requests and complaints under Articles 24 and 90 of the Staff Regulations that preceded the contested decisions

240    In support of the fourth limb of the third plea, the applicant submits that the Commission failed to take account of bad practices which he suffered on the part of his superiors and which he pointed out in his complaints and in the request for assistance at issue. Allegedly, those practices, between 1 October and 31 December 2017 and throughout 2018, affected his performance and explain the delay in performing his work, so that by adopting the transfer decision on the ground of underperformance, the Commission vitiated its assessment of the interests of the service by a manifest error.

241    In that regard, as is apparent from the grounds set out in paragraphs 64 to 152 above, not only have the facts of harassment relied on by the applicant not been established, but the applicant has not even adduced prima facie evidence of the attacks to which he claims to be subject.

242    Furthermore, although the facts relied on by the applicant and examined in paragraphs 64 to 152 above disclose tensions with his superiors, they result, at least in part, from the attitude of the applicant himself (see paragraph 148 above).

243    Consequently, the applicant is not justified in claiming that the finding that his performance was insufficient, on which the transfer decision is based, is incorrect on account of his superiors’ poor practices to which he was subject.

244    The fourth limb of the third plea must therefore be dismissed.

(5)    The fifth limb: error of assessment vitiating ‘the medical grounds’ of the transfer decision

245    The applicant submits that the Commission erred in the ‘medical grounds’ on which it based its transfer decision.

246    In the present case, the applicant’s transfer from the Delegation to OLAF’s headquarters in Brussels was proposed and adopted on the basis of the interests of the service, justified, according to the Commission, first, by the inadequacy of the applicant’s performance and, second, by the failure to improve his performance as of his arrival at the Delegation (see paragraphs 166 and 170 above). It was on the basis of those two grounds, and not on the applicant’s state of health, that the transfer decision was adopted. Consequently, the applicant’s complaint has no factual basis.

247    It is true that the Commission stated in the transfer decision that the applicant claimed that his working environment within the Delegation had had an adverse effect on his health and well-being and added that it hoped that his return to Brussels and reintegrating in OLAF would help improve his situation. However, as stated in paragraph 173 above, such a statement is merely the response to an observation by the applicant.

248    Furthermore, the applicant’s health was not at issue in the note of 14 September 2018 which informed the applicant of the Commission’s wish to transfer him to Brussels and of the reasons for the envisaged transfer (see paragraph 167 above). It is not apparent from the wording of the transfer decision that the Commission intended to amend those grounds. On the contrary, it confirmed them by rejecting the objections raised against them by the applicant in his observations of 26 September 2018 (see paragraph 4 above).

249    Consequently, the fifth limb of the third plea must be rejected.

250    In the light of the considerations set out in paragraphs 191 to 249 above, the third plea in law, alleging a manifest error in the assessment of the interests of the service, must be dismissed in its entirety.

(d)    Fourth plea: infringement of the principle of sound administration

251    The applicant structures his plea in two limbs.

252    In support of the first limb, the applicant maintains that there was a breach of the principle of sound administration in so far as the contested decisions were adopted before several proceedings concerning psychological harassment which he had initiated on the basis of Articles 24 and 90 of the Staff Regulations were concluded.

253    In that regard, since the arguments set out in the first limb of the fourth plea overlap with those already relied on in the first limb of the third plea, the first limb of the fourth plea must be rejected for the reasons set out in paragraphs 204 to 214 above.

254    In support of the second limb, the applicant submits that the principle of sound administration was also breached because the Commission did not verify the applicant’s claims in the Note of 29 May 2018 before deciding to transfer him.

255    The applicant alleges that the Head of Delegation accused him, in the Note of 29 May 2018, of conduct consisting of concealing his plans to make a detour for private reasons while on mission, which had a financial impact on EU taxpayers. In the applicant’s submission, the Head of Delegation thus accused him of a lack of transparency in planning his mission and of having intentionally misled the Delegation. The applicant emphasises that the Head of Delegation distributed the Note of 29 May 2018 within the EEAS and the Commission with the aim of undermining the applicant’s credibility.

256    The Commission submits that the applicant’s argument must be rejected.

257    It should be noted that the transfer decision, as noted in paragraphs 166 to 170 above, is based on the applicant’s unsatisfactory performance and lack of improvement. The Commission does not refer to the Note of 29 May 2018 and the applicant has not established that the Commission relied on the allegations made against him in that note.

258    Consequently, the second limb of the fourth plea, which is based on the premiss that the Head of Delegation’s allegations concerning the reimbursement of the applicant’s travel expenses contained in the Note of 29 May 2018 are incorrect, is therefore ineffective and must therefore be rejected.

259    In the light of the foregoing, the second limb of the fourth plea must be rejected and, therefore, the fourth plea must be dismissed in its entirety.

(e)    Fifth plea: infringement of Article 22a of the Staff Regulations on the status of whistleblower

260    The applicant states that he reported to the Head of Delegation and his Deputy, in their capacity as ‘paymasters’, a number of situations revealing the existence of deficiencies and irregularities within the Delegation of such a kind as to have an adverse impact on the EU’s finances.

261    The applicant maintains that the transfer decision was adopted as a reprisal for his attempt to report instances of maladministration and irregularities within the Delegation. He claims that that decision therefore disregards the protection afforded to whistleblowers, as provided for in Article 22a(3) of the Staff Regulations.

262    The Commission submits that the fifth plea must be rejected.

263    In that regard, Article 22a of the Staff Regulations provides as follows:

‘1.      Any official who, in the course of or in connection with the performance of his duties, becomes aware of facts which give rise to a presumption of the existence of possible illegal activity, including fraud or corruption, detrimental to the interests of the Union, or of conduct relating to the discharge of professional duties which may constitute a serious failure to comply with the obligations of officials of the Union, shall without delay inform either his immediate superior or his Director-General or, if he considers it useful, the Secretary-General, or the persons in equivalent positions, or [OLAF] direct.

Information mentioned in the first subparagraph shall be given in writing.

…

3.      An official shall not suffer any prejudicial effects on the part of the institution as a result of having communicated the information referred to in paragraphs 1 and 2, provided that he acted reasonably and honestly.’

264    In the present case, first, it is not apparent from the documents in the file that the applicant ‘informed’ his superiors, within the meaning of the second subparagraph of Article 22a(1) of the Staff Regulations, which provides that any information communicated by a whistleblower to his or her superiors or OLAF is to be sent ‘in writing’.

265    The applicant merely claims to have reported the existence of the irregularities on which he relies towards the end of 2016, and on several occasions between 2016 and 2018, and does not produce, or even mention in his pleadings, any document which he communicated to his superiors or OLAF, despite the fact that the Commission disputes his status as a whistleblower.

266    Second, under the first subparagraph of Article 22a(1) of the Staff Regulations, Article 22a(1) applies to an official who is aware of facts ‘which give rise to a presumption’ of illegal activity or a serious failure to comply with the obligations of officials.

267    That condition is satisfied if the official concerned communicates genuine, or at least probable, specific facts a preliminary examination of which would have reasonably led him or her to assume the existence of illegal activity or serious failure to comply with the obligations of officials (judgment of 13 January 2011, Nijs v Court of Auditors, F‑77/09, EU:F:2011:2, paragraph 66; see also, to that effect, judgment of 8 October 2014, Bermejo Garde v EESC, T‑530/12 P, EU:T:2014:860, paragraphs 125 and 129).

268    In the present case, the applicant puts forward, in his written pleadings, only very general and unsubstantiated allegations from which it cannot be determined whether he could reasonably assume the existence of illegal activity or serious failure to comply with the obligations of officials.

269    Consequently, it cannot be concluded that the applicant had informed his superiors of the existence of facts which could give rise to a presumption of illegal activity or serious failure to comply with the obligations of officials, as provided for in the first subparagraph of Article 22a(1) of the Staff Regulations.

270    It follows from the reasons set out in paragraphs 264 to 269 above that the applicant has not fulfilled the conditions laid down in Article 22a(1) of the Staff Regulations. Consequently, Article 22a(3) of the Staff Regulations, relating to the protection of whistleblowers, was not applicable to him.

271    In the light of all the foregoing considerations, the fifth plea in law must be dismissed.

(f)    Sixth plea: breach of duty to have regard for the welfare of staff

272    The applicant maintains that the Commission failed to fulfil its duty to have regard for the welfare of staff by failing to pay attention to his working conditions and, in particular, by disregarding the numerous ‘anomalies’ that the applicant reported relating to his working conditions.

273    The applicant also claims that the Commission did not take account of the damaging impact on his career, his health and his financial situation which could be caused by the transfer decision.

274    The applicant states, moreover, that the administration’s refusal to give a favourable response to requests for reimbursement of what he describes as ‘unexpected’ costs, which he claims to have been required to pay as a result of being transferred, constitutes a breach of the right to sound administration since such refusal breaches Article 71 of the Staff Regulations.

275    The Commission contends that the present plea should be rejected.

276    As a preliminary point, as regards the argument relating to breach of Article 71 of the Staff Regulations, the Court notes that that article relates to the reimbursement of expenses incurred by an official in the performance of his or her duties. Any breach of that article therefore has no bearing on the legality of the transfer decision or, more broadly, of the contested decisions, which have neither the purpose nor the effect of refusing to respond favourably to requests made by the applicant pursuant to that article.

277    Furthermore, according to settled case-law, while not mentioned in the Staff Regulations, the administration’s duty to have regard for the welfare of staff reflects the balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between a public authority and officials. A particular consequence of that duty and of the principle of sound administration is that when the authority takes a decision concerning the situation of an official, it should take into consideration all the factors which may affect its decision and that, in so doing, it should take into account not only the interests of the service but also those of the official concerned (see judgment of 7 November 2019, WN v Parliament, T‑431/18, not published, EU:T:2019:781, paragraph 105 and the case-law cited; see also, to that effect, judgment of 28 May 1980, Kuhner v Commission, 33/79 and 75/79, EU:C:1980:139, paragraph 22).

278    In the present case, as regards, in the first place, the ‘anomalies’ which the applicant claims to have reported to his superiors (see paragraph 272 above), since the applicant has failed to provide any clarification in that regard, that argument must be rejected.

279    Even if the applicant had implicitly intended to refer to the matters relied on in the plea alleging infringement of the status of whistleblower, that argument must also be rejected on the basis of the grounds set out in paragraphs 264 to 270 above.

280    As regards, in the second place, the existence of harm allegedly caused to the applicant by the transfer decision, it must be borne in mind that the requirements arising from the administration’s duty to have regard for the welfare of staff cannot prevent it from adopting the reassignment or transfer measures which it considers necessary, since the filling of each post must be based primarily on the interest of the service (see judgment of 19 October 2017, Bernaldo de Quirós v Commission, T‑649/16, not published, EU:T:2017:736, paragraph 81 and the case-law cited).

281    In the present case, the interest of the service must be regarded as established, since the third plea in law alleging a manifest error of assessment of the interests of the service has been rejected (see paragraph 250 above).

282    Furthermore, as regards, first, the negative effects which the transfer decision may have had on the applicant’s career, that does not prove their existence. He merely refers to his observations of 26 September 2018, in an annex to the application, without identifying the items or passages of that annex to which he intended to refer.

283    As regards, second, the effects of the transfer decision on the applicant’s health, the medical certificates which he produces do not make it possible to establish that the psychological disorders from which he suffers were caused by the transfer decision.

284    In the light of the extracts translated and cited by the applicant in his reply, the medical certificates produced by him make it possible, at most, to establish a link between the impression of injustice apparently felt by the applicant following the adoption of the transfer decision and the deterioration in his disorders. Such an impression, which is necessarily subjective, does not show an objective causal link between an administrative decision and a psychological disorder.

285    As regards, third, the financial consequences of the transfer decision, it should be noted that, among the expenses which the applicant considers to have been caused by that decision, the only costs which he has specified are import costs connected with the purchase of a new personal vehicle. Such a private purchase is the result of a choice made by the applicant.

286    It should be added that the applicant states that he purchased that vehicle four days before receipt of the note of 14 September 2018 informing him of the Commission’s intention to transfer him to Brussels (see paragraph 3 above). It is apparent from the background to the dispute that during the 2017 assessment exercise, reference was made, in March 2018 and then in April of that year, to the applicant’s unsatisfactory performance, which was considered not to be suited to an environment such as that of an EU delegation (see paragraphs 12 and 15 above). The applicant therefore knew, when he decided to purchase a new personal vehicle, that his superiors considered that his performance was not suited to the working environment of a delegation. He could not therefore be unaware of the risk that his assignment to the Delegation might not be maintained until the end of the period fixed, with the possibility that that suspension might entail import costs associated with the purchase of that new vehicle.

287    It follows from all the foregoing that the requirements arising from the duty to have regard for the welfare of staff could not, in the present case, prevent the Commission from adopting the transfer decision. Accordingly, the present argument must be rejected, and the sixth plea dismissed in its entirety.

(g)    Seventh plea: misuse of powers

288    The applicant submits that the transfer decision is vitiated by misuse of powers. He claims, in particular, that it constitutes a veiled sanction for being a whistleblower.

289    Furthermore, the applicant states that the transfer decision was adopted on the ground of accusations of domestic violence made by his wife. In his view, those accusations are the real reason for the transfer decision.

290    The Commission submits that the plea must be rejected.

291    The Court notes, as stated in paragraph 195 above, that the institutions have a broad discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, on condition that the staff are assigned in the interest of the service. That broad discretion is exercised on condition, however, as follows from Article 7 of the Staff Regulations, that such assignment be in the interest of the service and the post in the function group correspond to the grade.

292    Furthermore, according to settled case-law, where a transfer decision has not been deemed to be contrary to the interest of the service, there can be no question of a misuse of powers (judgments of 10 July 1992, Eppe v Commission, T‑59/91 and T‑79/91, EU:T:1992:87, paragraph 57; of 17 November 1998, Gómez de Enterría y Sanchez v Parliament, T‑131/97, EU:T:1998:263, paragraph 62; and of 7 June 2018, OW v EASA, T‑597/16, not published, EU:T:2018:338, paragraph 99; see also, to that effect, judgment of 14 July 1983, Nebe v Commission, 176/82, EU:C:1983:214, paragraphs 24 and 25).

293    In the present case, as is apparent from paragraph 250 above, the plea alleging a manifest error in the assessment of the interest of the service in transferring the applicant to OLAF’s headquarters was dismissed. Moreover, it is not disputed that the transfer decision was taken in compliance with the principle of equivalence of posts. Consequently, the transfer decision cannot be regarded as a misuse of powers.

294    For that first reason, the applicant’s plea must be dismissed.

295    In addition, the Court notes that the concept of misuse of powers has a precise meaning and encompasses the use by an administrative authority of its powers for a purpose other than that for which they were conferred upon it. A decision is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the purpose of achieving ends other than those stated. In that regard, it is not sufficient to refer to certain facts in support of claims; evidence of a sufficiently specific, objective and consistent nature must also be adduced to support their truth or, at the very least, their probability, failing which the material accuracy of the statements of the institution concerned cannot be challenged (see judgment of 18 November 2020, H v Council, T‑271/10 RENV II, EU:T:2020:548, paragraph 48 and the case-law cited).

296    In the present case, in the first place, in so far as the applicant claims that the transfer decision constitutes a veiled sanction, which follows, inter alia, from the reports which he allegedly communicated, it should be noted that it is not apparent from the documents in the file that the applicant ‘informed’ his superiors within the meaning of the second subparagraph of Article 22a(1) of the Staff Regulations (see paragraph 264 above).

297    In addition, in order to demonstrate that the transfer decision constitutes a veiled sanction, the applicant relies on comments in his 2016 appraisal report which do not reveal an intention to discipline the applicant, but only tensions between him and his superiors, the existence of which was found in paragraphs 112 and 148 above.

298    In the second place, as regards the complaint that the reason for the transfer decision was his wife’s accusations of domestic violence, the applicant refers, first, to the opening, on 17 September 2018, of an IDOC inquiry which related not only to professional conduct but also to the ‘private sphere’ (see paragraphs 96 and 140 above). In addition, he states that his wife went to Moscow to meet with his superiors during the summer of 2018, only a few weeks before he was informed of the Commission’s intention to transfer him to Brussels.

299    In that regard, it should be noted that a mere simultaneity between the applicant’s wife’s meeting with his superiors at the Delegation, the opening of an inquiry concerning him entrusted to IDOC and the communication to the applicant of a note informing him of the Commission’s intention to transfer him to Brussels does not lead to the conclusion that the transfer decision was adopted for reasons connected with the accusations of domestic violence against the applicant.

300    Second, the applicant has produced extracts from transcripts of voice messages from a member of staff of the Delegation in November 2019. However, the extracts quoted do not support the applicant’s claims that the transfer decision was based on the accusations of domestic violence. Those extracts refer only to ‘rumours’ circulating within the Delegation (see paragraph 142 above).

301    Third, the evidence produced by the applicant as an annex to his letter of 12 January 2021 (see paragraph 48 above) does not establish that the accusations of domestic violence were based on the transfer decision.

302    First of all, as regards the request for transfer sent by DG Trade to DG Human Resources and Security, it is apparent from the email exchange of 1 August 2018 between the Head of Delegation and his point of contact at the EEAS (see paragraph 147 above), a copy of which was sent to the official following the case within DG Trade, that the Delegation’s communication to the EEAS of a report on the accusations of domestic violence constituted the latest development of an approach, already under way, by which the applicant’s superiors within the Delegation sought to obtain his transfer. It is also apparent from that exchange that those accusations merely had the effect of accelerating the transfer procedure.

303    As regards, next, the transfer decision itself, none of the evidence produced by the applicant, in particular the exchange of emails on 1 August 2018, establishes that the appointing authority which adopted that decision, which belonged to DG Human Resources and Security and not to the Delegation, the EEAS or DG Trade (see paragraphs 3 and 5 above), even knew about the accusations of domestic violence on the date on which that decision was adopted. Indeed, no official of DG Human Resources and Security received that exchange. It has not therefore been established that that decision was adopted on the basis of those accusations.

304    In the light of all the foregoing, it must be concluded that the existence of a misuse of powers has not, in any event, been established.

305    Consequently, the applicant’s arguments, relied on several times in his pleadings and based on the allegation that the Commission was prejudiced against him, which – it is alleged – is the real reason for the transfer decision and is reflected, in particular, in the lack of transparency, must also be rejected.

306    It follows from all of the foregoing that the seventh plea must be rejected.

307    Since all the pleas in law relied on by the applicant have been dismissed, the claim for annulment submitted in the action brought in Case T‑671/18 must be dismissed.

2.      The claim for damages

308    Under Article 76 of the Rules of Procedure, an applicant is required to state in the application the subject matter of the proceedings and the form of order sought. Although Article 84(1) of those rules allows new pleas in law to be introduced in the course of the proceedings provided that they are based on matters of law or of fact which come to light in the course of those proceedings, that provision cannot be interpreted as authorising an applicant to seek a new form of order before the EU Courts and thereby to modify the subject matter of the proceedings or the nature of the action. Thus, such a new form of order altering the subject matter of the proceedings or the nature of the action is inadmissible unless it falls within the exception laid down in Article 86 of the Rules of Procedure, which provides for the possibility of modifying the application to take account of the replacement or amendment of the measure the annulment of which is sought (see, to that effect, judgments of 7 November 2019, Rose Vision v Commission, C‑346/18 P, not published, EU:C:2019:939, paragraph 43, and of 13 July 2018, PS v EIB, T‑612/16, not published, EU:T:2018:483, paragraph 38).

309    In the present case, the applicant seeks, in the reply, damages in compensation for the various losses which he claims to have suffered as a result of the illegality of the contested decisions and of the decision of 13 March 2019 rejecting the complaint. He adds that he suffered loss as a result of the ‘failure to take remedial action’ as sought by that complaint.

310    That addition to his form of order in respect of the payment of damages is new since it was presented for the first time in the reply. It modifies the nature and subject matter of the action by adding to the initial form of order a claim for compensation. Consequently, in accordance with the case-law cited in paragraph 308 above, such a modification to the form of order sought is inadmissible (see, to that effect, judgment of 14 February 2019, L v Parliament, T‑91/17, not published, EU:T:2019:93, paragraph 69).

311    In any event, the applicant has not established the existence of any wrong. As is apparent from the examination of the pleas in support of the form of order he seeks, none of the illegalities on which he relies has been established. Moreover, the applicant has not demonstrated the existence of wrongful conduct distinct from those alleged illegalities. In particular, as is apparent from the reasons set out in paragraphs 64 to 152 above, the applicant has not proved the existence of psychological harassment.

312    In the light of the considerations set out in paragraphs 308 to 311 above, the claim for compensation in the form of order sought must be dismissed as inadmissible and, in any event, unfounded. Consequently, the action in Case T‑671/18 must be dismissed in its entirety.

C.      Case T‑140/19

313    The applicant seeks the annulment of three measures, namely the decision rejecting the request for assistance at issue, the 2017 appraisal report and the 2018 proposed non-promotion, and also each decision rejecting the complaint lodged against each measure.

314    The Court considers it appropriate to examine each of those claims in turn.

1.      The claim for annulment of the rejection of the request for assistance at issue

315    The applicant formally relies on a single plea in law comprising three limbs, the first alleging a ‘manifest’ error of assessment, the second alleging breach of duty to have regard for the welfare of staff and of the principle of sound administration and the third alleging misuse of powers.

(a)    The first limb of the single plea in law: a ‘manifest’ error of assessment

316    In support of the first limb, alleging a ‘manifest’ error of assessment the applicant claims, in the first place, that the Commission did not carry out a full examination of all the circumstances of the case by ‘fragmenting’ the handling of his various requests. In the second place, he states that the Commission did not take account of certain events, which he has reiterated in his pleadings and which allegedly show that he was psychologically harassed. In the third place, he puts forward a series of arguments that the Commission was prejudiced against him.

317    The Court considers it appropriate to examine those three complaints in turn.

318    At the outset, it should be borne in mind that, with regard to the measures to be taken in a situation covered by Article 24 of the Staff Regulations, the administration enjoys a broad discretion – subject to review by the EU judicature – regarding the choice of measures and methods for implementing Article 24 of the Staff Regulations. However, as regards the issue of whether conduct does or does not amount to psychological harassment, it does not enjoy a broad discretion. Therefore, where psychological harassment has been alleged, it is necessary to examine whether the administration erred in its assessment of the facts, not whether that error is manifest (judgments of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraphs 74 and 75, and of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 82).

319    In the present case, as is apparent from the content of the decision rejecting the request for assistance at issue, as set out in paragraphs 25 to 28 above, the Commission based its refusal on the ground that the applicant had not adduced evidence capable of establishing the existence of the attacks of which he considered himself to be the victim. It took the view that the facts relied on by the applicant concerned the normal functioning of the service.

320    According to the applicant, the decision rejecting the request for assistance at issue was vitiated by the Commission’s ‘manifest’ error of assessment in taking the view that the facts on which he relied in that request fell solely within the normal functioning of an administration.

321    However, it is apparent from the applicant’s arguments that he disputes the Commission’s characterisation in law of the facts as regards the existence of psychological harassment. Since review by the EU Courts is, in this matter, not limited but unlimited in scope, as is apparent from the case-law cited in paragraph 318 above, the first limb of this plea must therefore be recharacterised as alleging an error of assessment rather than a manifest error of assessment.

322    Furthermore, in the first limb of this plea, the applicant, in essence, challenges the Commission’s alleged misapplication of the first paragraph of Article 24 of the Staff Regulations.

323    In that regard, it should be reiterated that it is sufficient that the official or other staff member who is, pursuant to the first paragraph of Article 24 of the Staff Regulations, seeking the protection of his or her institution provide prima facie evidence that the attacks – particularly ones which are alleged to constitute psychological harassment – of which he or she claims to have been the victim actually took place, so that the institution concerned be under an obligation to take the necessary measures, in particular to conduct an administrative inquiry, with the cooperation of him or her, to determine the facts which gave rise to the request (see paragraphs 61 and 62 above).

324    In the present case, it is therefore sufficient for the applicant to adduce prima facie evidence of the attacks against him which, in his view, amount to psychological harassment in order for an error of assessment to be established.

325    It is in the light of the foregoing considerations that the three distinct complaints raised by the applicant must be examined.

(1)    The first complaint: failure to carry out a full examination of the circumstances of the case owing to a fragmented handling of the applicant’s requests

326    The applicant maintains that the Commission erred in assessing the circumstances of the case by characterising the problems which the applicant had reported as administrative problems relating to the normal functioning of the service. The applicant considers that such an error of assessment is attributable to the ‘fragmented’ handling of the requests lodged by the applicant, resulting in an alleged failure to ‘draw a full picture’.

327    The Commission submits that the complaint must be rejected.

328    In that regard, the Court notes that the applicant does not rely, in a precise and reasoned manner, on the provisions of a legal text on the basis of which it would have been incumbent on the competent appointing authority, when deciding on the request for assistance at issue, to take account of matters which he did not put forward in that request or in the other letters which he had sent to that authority during the procedure relating to that request.

329    Moreover, the applicant has not produced any evidence to show that he was not in a position to submit to the competent appointing authority a general and complete request for assistance in which he would have grouped all his complaints together.

330    In any event, the applicant has not even shown that the appointing authority competent to rule on the request for assistance at issue did not take into account certain matters which he also sent to other appointing authorities in separate procedures.

331    The applicant thus refers, vaguely, to ‘information’, ‘accusations’, ‘circumstances’ and ‘specific situations’. When he mentions certain events to which he claims to have referred in his various requests or complaints, he does not cross-reference the specific passages of those requests or complaints which he considers capable of corroborating his assertions. He does not refer to any document annexed to his pleadings ultimately capable of substantiating his assertions.

332    Moreover, the applicant does not state in a sufficiently precise manner the impact that the failure to examine which he alleges could have had on the competent appointing authority’s assessment when it decided on the request for assistance at issue.

333    Consequently, the fact that various administrative procedures concerning the applicant, in particular his appraisal, promotion or transfer, were dealt with by the appointing authorities other than that which decided on the request for assistance at issue, whose competence the applicant does not challenge, is not sufficient, in the absence of further details, to demonstrate the illegality of the rejection of the request for assistance at issue.

334    In the light of the foregoing, since the applicant has not adduced any evidence capable of substantiating his claims, the complaint that the Commission, in taking the view that the facts on which he relied in the request for assistance at issue fell within the normal functioning of the service, erred in its assessment as a result of a fragmented handling of his complaints and his requests, must be rejected.

335    In addition, as regards the events mentioned by the applicant which can be identified and which appear to be relied on to demonstrate the existence of psychological harassment, namely the email of 26 April 2018 sent by the Head of Delegation to the applicant, the refusal of the applicant by his superiors to allow him to participate in an international economic forum, the SPIEF, and the Note of 29 May 2018 sent to several recipients in Brussels by the Head of Delegation, not only do not establish their abusive nature, but do not even amount to prima facie evidence of psychological harassment against him, as is clear from the considerations set out in paragraphs 111 to 115, 118, 119, 122 to 125 and 150 to 152 above.

(2)    The second complaint: failure to take account of certain facts

336    The applicant’s second complaint is comprised of three parts, the first alleging failure to take relevant factors into account in the assessment of the request for assistance at issue, the second alleging ‘manifest errors of assessment relating to selected issues not addressed in other parts of the action’, the third alleging ‘the narrow interpretation of psychological harassment [leading] to the failure to take the relevant facts referred to by the applicant in his complaints into account’. They shall be examined in turn.

(i)    Failure to take relevant factors into account in the assessment of the request for assistance at issue

337    The applicant maintains that the Commission failed to take account, when assessing the facts on which he relied in his requests under Articles 24 and 90 of the Staff Regulations, of certain factors which constitute ‘pre-conditions for psychological harassment’. According to the applicant, those factors are indicative of hostile acts and therefore of a form of psychological harassment of him. The Commission thus erred in its legal classification of the facts that led it to refuse to give a favourable response to the request for assistance at issue. The applicant relies, in particular, on the ‘gradual deterioration of his health’.

338    The Commission submits that the applicant’s argument must be rejected.

339    The Court has found that the applicant has not produced any prima facie evidence from which it may be presumed that he has been psychologically harassed.

340    He makes mere assertions. He thus complains, evasively, of an excessive workload, ‘poor working environment’, a ‘lack of work organisation’, errors in ‘leadership’ and unclear rules in order to justify his unsatisfactory performance, but does not provide any evidence in support of his claim. He also maintains, without further detail, that the factors on which he relies have worsened his working conditions.

341    Furthermore, the applicant does not refer to any document capable of corroborating what he maintains. He confines himself generally to all of his ‘actions based on Articles 90 and 24 of the Staff Regulations’.

342    As regards the applicant’s reliance on a ‘gradual deterioration of his health’, it should be borne in mind that the existence, even if proven, of disorders affecting the health of an official cannot per se make it possible to establish the abusive nature of conduct of which that official considers himself or herself to be the victim (see, to that effect, judgment of 6 February 2015, BQ v Court of Auditors, T‑7/14 P, EU:T:2015:79, paragraph 49).

343    Consequently, the applicant’s argument would, at most, substantiate other evidence on which he might rely, were such evidence proved. That is not the case.

344    In the light of all the foregoing, the evidence submitted by the applicant does not support the conclusion that the Commission erred in its assessment that the facts set out in the request for assistance were part of the normal functioning of the service. The present complaint must therefore be rejected.

345    In addition, as regards the events mentioned in the applicant’s line of argument which can be identified and which appear to be relied on to demonstrate the existence of psychological harassment, namely a remark by the applicant’s Head of Section concerning his height, the refusal to allow the applicant to recuperate flexitime in order to participate in a forum at Astana, the refusal to allow the applicant to take part in a forum in Sochi and the applicant’s 2016 and 2017 appraisals, not only have they not been proved to be abusive, but do not even amount to prima facie evidence of psychological harassment against the applicant, as is clear from the considerations set out in paragraphs 73, 74, 83 to 87, 89 to 91, 130 to 137 and 150 to 152 above.

(ii) ‘Manifest errors of assessment relating to selected issues not addressed in other parts of the action’

346    The applicant puts forward, without any detail, various arguments intended to prove that the Commission made an error of assessment in its handling of the request for assistance at issue.

347    The Commission submits that the applicant’s argument must be rejected.

348    As regards the events mentioned in the applicant’s line of argument which can be identified and which appear to be relied on to demonstrate the existence of psychological harassment, namely the refusal to allow him to take part in a mission to Tbilissi in March 2017, accusations by the applicant’s superiors about his failure to comply with the confidentiality procedure as regards the disclosure of the minutes of a meeting held on 30 October 2017 between the Russian Ministry of Foreign Affairs and the EBA, the email of 26 April 2018 and the refusal to allow the applicant to participate in an international forum, the SPIEF, not only have they not been proved to be abusive, but do not even amount to prima facie evidence of psychological harassment against the applicant, as is clear from the considerations set out in paragraphs 92 to 97, 105, 106, 111 to 115, 122 to 125 and 150 to 152 above.

349    In the light of the foregoing, the argument alleging errors of assessment relating to selected issues not addressed in other parts of the action must be rejected.

(iii) ‘Narrow interpretation of psychological harassment [leading] to the failure to take the relevant facts referred to by the applicant in his complaints into account’

350    The applicant maintains that the problems which he described in his appraisal files and his complaints come within the definition of psychological harassment provided by the EU-OSHA.

351    The Commission submits that the applicant’s argument must be rejected.

352    As is apparent from the grounds set out in paragraphs 64 to 152 above, not only is there no evidence of harassment, but the applicant has not even adduced prima facie evidence of attacks of which he claims to have been victim.

353    Furthermore, as has already been stated in paragraph 202 above, the applicant has not adduced any evidence to suggest that the reprehensible conduct of which he complains falls within categories of conduct recognised by the EU-OSHA as examples of psychological harassment. In those circumstances, the applicant is not justified in relying on the EU-OSHA’s definition of psychological harassment.

354    Lastly, the applicant, who has adduced no prima facie evidence giving rise to a presumption of psychological harassment against him, cannot validly rely, first, on what he describes as the ‘H. Leymann methodology’ in order to establish that the acts of which he was the victim correspond to the five stages described in that methodology as characterising psychological harassment, nor, second, on a document entitled ‘Statistical Manual of Mental Disorders Fifth Edition’.

355    It follows from all the foregoing that this complaint must be dismissed.

356    Consequently, the second complaint in the first limb of the applicant’s single plea, alleging an error of assessment, must be dismissed.

(3)    The third complaint: the Commission prejudiced the applicant

357    The applicant maintains that the fact that the Commission took into account his wife’s allegations accusing him of domestic violence led the Commission to prejudice him.

358    The Commission submits that the applicant’s argument must be rejected.

359    It should be noted that it is not apparent from the documents in the file that the appointing authority which adopted the decision rejecting the request for assistance at issue, which is part of DG Human Resources and Security and not a part of the Delegation, the EEAS or DG Trade (see paragraph 23 above), knew of the allegations of domestic violence of which the applicant was accused at the date on which that decision was adopted.

360    The applicant produces in that regard an exchange of emails of 1 August 2018 between the Head of Delegation and his point of contact at the EEAS (see paragraph 147 above). Although an official of DG Trade received a copy of that exchange, no official from DG Human Resources and Security received it.

361    Furthermore, that exchange did not concern the processing of the request for assistance at issue, but the final step in a procedure already under way by which the applicant’s superiors at the Delegation sought to obtain his transfer (see paragraph 302 above).

362    Moreover, the decision rejecting the request for assistance at issue was adopted on 28 May 2018, that is to say several months before the email exchange of 1 August 2018 which supposedly establishes the influence which the accusations of domestic violence had on that decision.

363    Thus, it has not been proved that DG Human Resources and Security was aware, at the time when it adopted the decision rejecting the request for assistance at issue, of the accusations of domestic violence laid against the applicant.

364    In addition, the applicant states that he was informed, in March 2019, of the opening, on 17 September 2018, of the IDOC investigation into the wrongful acts he allegedly committed during his period of assignment to the Delegation (see paragraphs 96 and 140 above). He asserts that there is a causal link between the existence of that administrative investigation and the decision rejecting the request for assistance at issue.

365    In that regard, it should be noted that the decision rejecting the request for assistance at issue was adopted on 28 May 2018. It therefore predates the opening, on 17 September 2019, of the IDOC investigation. That investigation cannot therefore have led to the decision rejecting the request for assistance at issue, or even the decision rejecting the complaint which subsequently confirmed that rejection.

366    As regards the documents which, according to the applicant, show that there was a ‘concerted plan’ drawn up against him by his superiors both within the Delegation and at the Commission’s headquarters, they confirm, at most, the existence of tensions between the applicant and his superiors (see paragraph 146 above).

367    Furthermore, as is apparent from the grounds set out in paragraphs 64 to 152 above, not only have the facts of harassment relied on by the applicant not been established, but the applicant has not even adduced prima facie evidence of the attacks to which he claims to be subject. The Commission was, on the basis of the finding that there was no evidence of the abusive conduct alleged (see paragraph 319 above), therefore entitled to reject the request for assistance at issue. That conclusion makes the existence of prejudice against the applicant on the part of the Commission, on which the rejection of the request for assistance at issue was allegedly based, implausible, since there is a convincing alternative ground justifying the rejection of that request.

368    In the light of all the foregoing, the third complaint, and the first limb of the single plea, must be rejected.

(b)    The second limb of the singleplea in law: breach of the principle of sound administration and of the duty to have regard for the welfare of staff

369    The applicant claims, in essence, that the Commission is responsible for the deterioration in his working conditions because it failed to comply with its duty to have regard for the welfare of staff by failing to react quickly and effectively to the various incidents which the applicant had reported in his requests and complaints. According to the applicant, the Commission should therefore have granted, inter alia, the request for assistance at issue. The applicant adds that the Commission is indirectly responsible for the deterioration in his working conditions because of shortcomings in the policy for the recruitment of management staff within delegations, which enabled the alleged perpetrators of the harassment to which he considers himself victim to have been recruited. In that regard, the applicant claims to have received information to the effect that working conditions within the Delegation were challenged in the context of a complaint under the Staff Regulations lodged by another official who stated that the EEAS was recruiting persons who were not officials and who, furthermore, tended to abuse their powers.

370    The Commission contends that the second limb of the single plea in law should be dismissed.

371    In the present case, each of the arguments in support of the present limb of the single plea in law presupposes the existence of conduct constituting psychological harassment or, at the very least, attacks of which the applicant was the victim and which were the cause of the deterioration in his working conditions.

372    However, as is apparent from the grounds set out in paragraphs 64 to 152 above, not only have the facts of harassment relied on by the applicant not been established, but the applicant has not even adduced prima facie evidence of the attacks to which he claims to be subject. Consequently, the deterioration in working conditions of which the applicant has complained has not been proved.

373    Since the premiss on which the present limb of the single plea in law is based has not been proved, that limb must be rejected.

374    Furthermore, as regards the information communicated to the applicant to the effect that working conditions within the Delegation were challenged in a complaint under the Staff Regulations, no document has been produced to prove the existence of such a complaint. Moreover, the mere existence of a complaint, lodged by an official other than the applicant, in which the working conditions within the Delegation are criticised, does not support the conclusion that the decision rejecting the request for assistance at issue was unlawful.

375    In the light of the foregoing, the second limb of the single plea in law, alleging breach of the duty to have regard for the welfare of staff and of the principle of sound administration, must be rejected.

(c)    The third limb of the single plea: misuse of powers

376    The applicant claims that both the Delegation and the Commission created conditions for the expression of general hostility towards him with the intention of causing him systematically to fail, which allegedly demonstrates a misuse of powers towards him, which led to his being transferred.

377    The applicant alleges that the existence of that climate of hostility created against him is, in particular, revealed by the following incidents: the hostile reaction of the Head of Delegation, which allegedly consisted of criticising the applicant for having lodged a complaint against the decision to cancel his participation in the mission to Tbilissi; the hostility of the Head of Delegation when he lodged another complaint which was considered to have prejudiced a task falling within the applicant’s duties whereas, according to the applicant, the lodging of that complaint took priority in view of the limitation period; and the attack launched by the Head of Delegation on the applicant in an email of 26 April 2018.

378    The Commission submits that the plea must be rejected.

379    In that regard, it should be noted that the incidents set out in paragraph 377 above do not prove that the applicant was the victim of a climate of hostility created by his superiors. The applicant merely expresses his personal opinion in alleging that the Head of Delegation ‘openly criticised’ his initiative to lodge a complaint against the decision to cancel his mission in Tbilissi, but has not adduced any prima facie evidence in support of that allegation, or referring, without mentioning any specific evidence, to a ‘similar hostility’ towards him allegedly displayed by the Head of Delegation when he commenced another administrative procedure. Lastly, as regards the email of 26 April 2018, it cannot, as has been found (see paragraphs 111 to 115 above), reveal the existence of abusive conduct towards the applicant.

380    Furthermore, since the acts of harassment relied on by the applicant have not been proved and the applicant has not even adduced prima facie evidence of the attacks against him, the Commission was entitled, on the basis of the finding that there was no evidence of the abusive conduct alleged, to reject the request for assistance at issue (see paragraph 367 above).

381    The third limb of the applicant’s single plea in law must therefore be dismissed on the ground of the foregoing considerations and the case-law referred to in paragraph 295 above, according to which it is not sufficient to refer to certain facts in support of claims, for evidence of a sufficiently specific, objective and consistent nature must also be adduced to support their truth or, at the very least, their probability, failing which the material accuracy of the statements of the institution concerned cannot be challenged.

382    Since all the complaints put forward by the applicant have been rejected, the claim for annulment of the decision rejecting the request for assistance at issue and of the decision rejecting the complaint brought against that decision must be dismissed.

2.      The claim for annulment of the 2017 appraisal report

383    The applicant raises a single plea in law in support of which he maintains, first of all, that there is a clear link between the psychological harassment he suffered and the content of his appraisal, as follows from his 2017 appraisal report. According to him, the existence of acts constituting psychological harassment against him is shown by the evidence relating to the request for assistance. Such evidence relates in particular to the decision cancelling his mission to Tbilisi, the existence of ‘unfavourable administrative decisions’, the decision not to approve his mission to Sochi, the subjective statements of his superiors in the 2017 appraisal report, false allegations of failure to follow his immediate superior’s instructions and ‘other acts of bullying’.

384    The applicant maintains, next, that the assessment in the 2017 appraisal report that he was late, without the authorisation of his hierarchy, in submitting the first and then the second version of a report is manifestly incorrect in that it does not take account of the objective factors that impaired his working conditions.

385    Lastly, the applicant states that his wife’s accusations of domestic violence against him increased his appraisers’ prejudice against him.

386    The Commission submits that the plea must be dismissed.

387    In that regard, Article 43 of the Staff Regulations provides as follows:

‘The ability, efficiency and conduct in the service of each official shall be the subject of an annual report as provided for by the appointing authority of each institution in accordance with Article 110. That report shall state whether or not the performance level of the official has been satisfactory. The appointing authority of each institution shall lay down provisions conferring the right to lodge an appeal within the reporting procedure, which has to be exercised before the lodging of a complaint as referred to in Article 90(2).

…’

388    It should be noted that, according to well-established case-law on the appraisal procedure for officials, reporting officers have the widest discretion when judging the work of persons upon whom they must report and it is not for the Courts to interfere with their assessments or review the validity thereof, save in the case of error or manifest exaggeration. Indeed, review by the Courts of the content of appraisal reports is limited to ensuring that the procedure has been conducted in a lawful manner, the facts are materially correct and there is no manifest error of assessment or misuse of powers (see judgment of 3 December 2019, Pethke v EUIPO, T‑808/17, EU:T:2019:832, paragraph 39 and the case-law cited).

389    In addition, the evidence which it is for the applicant to adduce in order to prove that the administration committed a manifest error of assessment must be sufficient to make the findings of fact made in the contested appraisal report implausible (see judgment of 14 December 2018, UC v Parliament, T‑572/17, not published, EU:T:2018:975, paragraph 99 and the case-law cited).

390    In the present case, as regards the applicant’s argument set out in paragraph 383 above, that he was the victim of psychological harassment, it must be borne in mind, as is apparent from the considerations set out in paragraphs 64 to 152 above, that not only have the acts of harassment relied on by the applicant not been proved, but he has not even adduced prima facie evidence of the attacks against him.

391    Next, as regards the argument set out in paragraph 384 above alleging, in essence, that the competent authority committed a manifest error in considering that the applicant had submitted a report late, the applicant states that the relevant field was new to him, that he had not received any guidance from his immediate superior, that the distribution of tasks within his section was unbalanced and that he had not benefited from assistance similar to that received by an external consultant.

392    The Commission, for its part, states that the report was to be delivered within one to two months after July 2016, that is to say, by September 2016 at the latest, and that it was delivered in November 2017, that is to say, after a period of approximately 16 months. It adds that the applicant, who is classified in the administrators’ function group at grade AD 7, should have been able to organise himself and work independently. Lastly, the Commission adds that he received support from his superiors in the form of email exchanges in July 2016, October 2016 and February 2017.

393    In the light of the explanations provided by the Commission and the vague nature of the evidence relied on by the applicant, which, moreover, does not refer to any document annexed to his pleadings in order to prove his allegations, the Court finds that that evidence is not such as to render the contested assessments implausible.

394    Lastly, as regards the argument referred to in paragraph 384 above, relating to the existence of prejudice on the part of the assessors towards the applicant as a result of the accusations of domestic violence, it should be noted that there is nothing in the file to prove that the applicant’s assessors, who belonged to DG Trade, were aware, during the various stages of the appraisal procedure for 2017, of those accusations. In particular, the 2017 appraisal report was confirmed by the appeal assessor on 25 April 2018, that is to say, before the only evidence capable of establishing that an official of DG Trade was aware of the accusations in question, namely an email from the Head of Delegation sent on 31 July 2018, inter alia, to an official of DG Trade. It should be added that that official was not one of the applicant’s reporting officers.

395    In any event, in the absence of precise and well-founded arguments capable of proving that the applicant’s performance was under-evaluated, the mere fact that the applicant’s appraisers were aware of accusations of domestic violence concerning him, or even that they might have been convinced that those accusations were well founded, is not sufficient to establish the under-evaluation of the applicant’s performance and the manifestly erroneous nature of the assessments made of that performance by the appraisers.

396    In the light of the foregoing, the single plea concerning the 2017 appraisal report must be dismissed.

397    Even if, by this plea, the applicant could be regarded as also relying on a misuse of powers, it would be necessary to dismiss such a complaint on the ground of the foregoing considerations and the case-law referred to in paragraph 295 above, according to which it is not sufficient to refer to certain facts in support of claims, for evidence of a sufficiently specific, objective and consistent nature must also be adduced to support their truth or, at the very least, their probability, failing which the material accuracy of the statements of the institution concerned cannot be challenged.

398    Since all the complaints put forward by the applicant have been rejected, the claim for annulment of the 2017 appraisal report and of the decision rejecting the complaint brought against that decision must be dismissed.

3.      The claim for annulment relating to the 2018 proposed non-promotion

399    The Commission raises a plea of inadmissibility against the claim for annulment of the 2018 proposed non-promotion in so far as that claim concerns a preparatory act which does not constitute an act affecting the applicant adversely within the meaning of Article 90(2) of the Staff Regulations, since such an act does not definitively determine the position of the institution with regard to him.

400    In that regard, under Article 90(2) of the Staff Regulations, ‘any person to whom these Staff Regulations apply may submit to the appointing authority a complaint against an act affecting him adversely, either where the said authority has taken a decision or where it has failed to adopt a measure prescribed by the Staff Regulations’. Article 91(1) of the Staff Regulations provides that ‘the Court of Justice of the European Union shall have jurisdiction in any dispute between the Union and any person to whom these Staff Regulations apply regarding the legality of an act affecting such person adversely within the meaning of Article 90(2)’.

401    According to settled case-law, for any action brought by an official against the institution by which he or she is or was employed to be admissible, it is a necessary condition that there be an act adversely affecting him or her within the meaning of Article 90(2) and Article 91(1) of the Staff Regulations. Only acts and decisions the legal effects of which are binding on and capable of affecting, directly and immediately, the interests of the applicant by bringing about a distinct change in his legal position may be the subject of an action for annulment (see order of 25 March 2020, Lucaccioni v Commission, T‑507/19, not published, EU:T:2020:118, paragraph 36 and the case-law cited).

402    When an act is adopted by a procedure involving several stages, and particularly where it is the culmination of an internal procedure, in principle, a measure only adversely affects an applicant if it definitively determines the position of the institution upon the conclusion of that procedure, and not intermediate measures the purpose of which are to prepare the final decision. Acts preparatory to a decision do not adversely affect officials and an applicant may rely on defects in acts prior to the decision and closely linked to it only in the context of an action challenging the decision adopted at the end of the procedure (see order of 31 March 2020, ZU v EEAS, T‑499/19, not published, EU:T:2020:134, paragraph 33 and the case-law cited).

403    In the present case, the 2018 promotion exercise was implemented pursuant to Commission Decision C(2013) 8968 final of 16 December 2013 laying down general provisions for implementing Article 45 of the Staff Regulations (the General Implementing Provisions for Article 45; ‘GIP 45’).

404    It follows from Article 5 of GIP 45, which governs the promotion procedure, that the promotion exercise is a procedure comprised of several stages, one of which consists in the drawing up, for each relevant Directorate-General, of the list of officials which that DG wishes to propose for promotion.

405    In the present case, when, on 18 June 2018, DG Trade drew up the list of officials it proposed for promotion in 2018, it did not propose that the applicant be promoted (see paragraph 17 above).

406    On that date, the Commission’s position was not definitively determined.

407    First, the 2018 proposed non-promotion was, as its name indicates, only a proposal and, second, a complaint in respect of that proposal could be lodged before the Joint Promotion Committee (JPC) pursuant to Article 5(7) of GIP 45, but the applicant did not lodge any such complaint.

408    It was only after the JPC has been convened that, on 13 November 2018, the Commission adopted a final decision in respect of the promotion procedure in question by drawing up the list of officials promoted (see paragraph 18 above).

409    It is necessary, however, to consider whether the fact that the applicant did not appear on the list of officials proposed for promotion by DG Trade prevented his inclusion in the list of promoted officials, since it is clear from the case-law of the Court that, if a decision not to place the name of an official on a list of officials eligible for promotion in practice causes that person to lose any chance of being promoted because the appointing authority is bound by that list, an action challenging that decision is admissible (see order of 21 June 1995, Vigel v Commission, T‑370/94, EU:T:1995:110, paragraph 23 and the case-law cited).

410    In that regard, it should be noted that Article 5(7) of GIP 45 provides that the JPC is to compare the merits of ‘officials eligible for promotion’ and that Article 5(8) of GIP 45 provides that the appointing authority is to carry out a final comparison of the merits of ‘eligible officials’ and adopt the list of officials promoted.

411    It follows that the fact that an official is not on the list of officials proposed for promotion is not binding either on the JPC or on the appointing authority.

412    The 2018 proposed non-promotion was therefore a preparatory measure, so that, as the Commission maintains, the action is inadmissible in so far as it seeks its annulment (see, to that effect, order of 7 December 2017, Durazzo v EEAS, T‑559/16, not published, EU:T:2017:882, paragraphs 26 and 27 and the case-law cited; order of 16 July 2015, FG v Commission, F‑20/15, EU:F:2015:93, paragraph 63).

413    That conclusion is not called into question by the argument, even if it were relied on, that the applicant would not have been able to bring an action before the JPC against the 2018 proposed non-promotion by fear of retaliation. Referral to the JPC is optional and its absence did not prevent the applicant from bringing an action against the decision not to promote him which affected him adversely.

414    Furthermore, the applicant does not put forward, in support of his claim for annulment of the 2018 proposed non-promotion, any specific argument, distinct from those relied on elsewhere in support of his claim for annulment of the rejection of the request for assistance at issue and of the 2017 assessment report, which were dismissed on their merits.

415    Since all the complaints put forward by the applicant have been rejected, the claim for annulment of the 2018 proposed non-promotion and of the decision rejecting the complaint brought against that proposal must be dismissed. The action in Case T‑140/19 must therefore be dismissed in its entirety.

IV.    Costs

416    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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, including those of the application for interim measures in Case T‑671/18 R, in accordance with the forms of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Seventh Chamber)

hereby:

1.      Dismisses the actions in Joined Cases T‑671/18 and T‑140/19;

2.      Orders ZU to pay the costs of the proceedings, including those proceedings for interim measures in Case T‑671/18 R.

Delivered in open court in Luxembourg on 20 October 2021.

[Signatures]

*      Language of the case: English.

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