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

JUDGMENT OF THE GENERAL COURT (Seventh Chamber)

19 October 2022 (*)

(Civil service – Members of the temporary staff – Time limit for complaints – Admissibility – Psychological harassment – Article 12a of the Staff Regulations – Request for assistance – Article 24 of the Staff Regulations – Rejection of the request – Absence of prima facie evidence – Duty to have regard for the welfare of staff – Liability)

In Case T‑271/20,

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

applicant,

v

Single Resolution Board (SRB), represented by L. Forestier and H. Ehlers, acting as Agents, and by D. Waelbroeck and A. Duron, lawyers,

defendant,

THE GENERAL COURT (Seventh Chamber),

composed, at the time of the deliberations, of R. da Silva Passos, President, V. Valančius (Rapporteur) and M. Sampol Pucurull, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure,

further to the hearing on 23 September 2021,

gives the following

Judgment

1        By his action based on Article 270 TFEU, the applicant, JS, seeks, first, annulment of the decision of the Single Resolution Board (SRB) of 14 June 2019 rejecting his request for assistance submitted on 2 May 2019 and, in so far as necessary, of the decision of the SRB of 23 January 2020 rejecting his complaint against the decision of 14 June 2019 and, second, compensation for the harm which he claims to have suffered as a result of those decisions.

 Background to the dispute

2        The applicant began working with [confidential] as [confidential] in grade [confidential] on [confidential].

3        The applicant began working with the SRB as [confidential] in grade [confidential] on [confidential].

4        During the period [confidential] to [confidential], the applicant worked under the authority of a head of unit, who was also his reporting officer (‘the former head of unit’).

5        On 14 January 2019, the SRB launched the 2018 appraisal exercise, which covered the period from 1 January 2018 to 31 December 2018 (‘the appraisal period’). The applicant submitted his self-assessment on the same day.

6        In the context of the appraisal procedure, the applicant’s former head of unit requested input from other members within her unit regarding the applicant’s performance. One of those members was responsible for coordinating the work of the unit during the former head of unit’s maternity leave, between August and the end of 2018.

7        On 11 March 2019, the appraisal dialogue took place between the applicant and the former head of unit in the presence of an independent observer, a member of the SRB’s Staff Committee, following the request of the applicant, who wished to have a third person present during the appraisal dialogue.

8        On 14 March 2019, the former head of unit signed the applicant’s 2018 appraisal report, which concluded that his performance during the reference period had been unsatisfactory (‘the initial appraisal report’).

9        On 21 March 2019, in accordance with Article 4(1) of the decision of the SRB of 25 March 2015 laying down general provisions for implementing Article 43 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), and implementing the first paragraph of Article 44 of the Staff Regulations for temporary staff, the initial appraisal report was confirmed by the immediate superior of the former head of unit in his capacity as countersigning officer.

10      On 2 May 2019, the applicant, considering that he was a victim of continuous psychological harassment on the part of his former head of unit, submitted a request for assistance under Article 24 of the Staff Regulations, applicable to members of the temporary staff pursuant to Article 11 of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), and requested his reassignment as a matter of urgency (‘the request for assistance’).

11      On [confidential], a meeting was held between the applicant, an SRB board member in charge of human resources, the SRB compliance team and the confidential counsellor, during which the applicant orally presented his allegations of harassment by the former head of unit.

12      On [confidential], the SRB decided to reassign the applicant, from [confidential], to another unit.

13      On [confidential], the authority empowered to conclude contracts of employment (‘the AECE’) informed the applicant that, in order for his request for assistance to be examined, he was required to provide prima facie evidence in support of his claims and, consequently, requested him to provide the SRB’s compliance team, within two weeks, with any information capable of substantiating the allegations contained in his request for assistance.

14      On 5 June 2019, following the applicant’s refusal to accept the initial appraisal report, the appeal assessor confirmed that report, as drafted by the former head of unit and the countersigning officer for the appraisal period, and it became final (‘the 2018 appraisal report’).

15      After granting the applicant on two occasions an additional period to substantiate his allegations of psychological harassment by his former head of unit in support of his request for assistance, first at the applicant’s request, dated [confidential], for an additional period of two weeks and, second, of its own motion, on [confidential], for an additional period of one week, the AECE, by decision of 14 June 2019, rejected the applicant’s request for assistance on the ground that he had not provided prima facie evidence of his allegations (‘the decision rejecting the request for assistance’ or ‘the first contested decision’).

16      On [confidential] the applicant resigned from his position with effect from [confidential], citing health reasons.

17      On 12 September 2019, the applicant lodged a complaint, pursuant to Article 90(2) of the Staff Regulations, applicable to members of the temporary staff pursuant to Article 46 of the CEOS, against the 2018 appraisal report, which was rejected by decision of 28 January 2020.

18      On Saturday 14 September 2019, at 23.59, the applicant sent the SRB a complaint, by email, against the decision rejecting the request for assistance aimed at substantiating his allegations of harassment (‘the complaint’).

19      By decision of 23 January 2020, the SRB rejected the complaint (‘the decision rejecting the complaint’ or ‘the second contested decision’).

20      The applicant brought an action before the General Court, registered as Case T‑270/20, seeking annulment of the 2018 appraisal report and compensation for the damage he claims to have suffered as a result.

 Forms of order sought

21      The applicant claims that the Court should:

–        annul the first contested decision;

–        annul, so far as necessary, the second contested decision;

–        order the SRB to pay him, by way of compensation, the sum of EUR 20 000, for the non-pecuniary damage suffered, and the sum of EUR 77 408 in respect of the material damage suffered;

–        order the SRB to pay the costs.

22      The SRB contends that the Court should:

–        dismiss the action as inadmissible;

–        in the alternative, dismiss the action as unfounded;

–        order the applicant to pay the costs.

 Law

 Subject matter of the action

23      In the application, the applicant seeks annulment of the first contested decision, by which his request for assistance was rejected, and, so far as necessary, of the second contested decision, by which the complaint, lodged against the first contested decision, was rejected.

24      According to settled case-law, an administrative complaint, such as that referred to in Article 90(2) of the Staff Regulations, and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the court. Consequently, the action before the judicature, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the applicant against which the complaint was submitted, except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made (see judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 70 and the case-law cited).

25      An express decision rejecting a complaint may, in the light of its content, not be confirmatory of the measure contested. That is the case where the decision rejecting the complaint contains a re-examination of the situation of the person concerned in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such circumstances, the rejection of the complaint constitutes a measure subject to review by the judicature, which will take it into consideration when assessing the legality of the contested measure or will even regard it as an act adversely affecting the applicant replacing the contested measure (see judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 71 and the case-law cited).

26      However, in accordance with the principle of economy of procedure, the judicature may decide that it is not appropriate to rule specifically on the claims directed against the decision rejecting the complaint where it finds that those claims have no independent content and are, in reality, the same as those directed against the decision against which the complaint has been made (see judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 72 and the case-law cited).

27      In the present case, it cannot be held that the decision rejecting the complaint has, as to its substance, a content independent of that of the decision rejecting the request for assistance, since in it the SRB rejects the applicant’s request for assistance, submitted in the complaint, without re-examining the situation of the person concerned in the light of new elements of law or of facts, or changing or adding to the first contested decision.

28      By the second contested decision, the SRB rejected the applicant’s complaint on a single ground, namely that it was submitted out of time, without in any way changing or adding to the substance of the first contested decision.

29      Accordingly, in the present case, the second contested decision, rejecting the complaint, is merely confirmatory of the first contested decision, with the result that the annulment of the second contested decision would have no effect on the applicant’s legal situation distinct from that which follows from the annulment of the first contested decision (see, to that effect, judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 33).

30      Therefore, the second contested decision, having rejected the complaint, has no independent effect on the substance.

31      Accordingly, there is no need to rule specifically on the claims directed against the second contested decision.

 Admissibility

32      The SRB contends that the action should be dismissed in its entirety as inadmissible, since the complaint was lodged out of time.

33      The applicant challenges that line of argument.

34      In that regard, it should be recalled that, under Article 91(2) of the Staff Regulations, applicable to members of the temporary staff pursuant to Article 46 of the CEOS, appeals against an act having an adverse effect lie only if the institution has previously had a complaint submitted to it pursuant to Article 90(2) of the Staff Regulations within the period prescribed therein, and the complaint has been rejected by express decision or by implied decision.

35      Under Article 90(2) of the Staff Regulations, a complaint must be lodged within three months, that period starting to run on the date of notification of the decision to the person concerned, but in no case later than the date on which the latter received such notification, if the measure affects a specified person.

36      According to the SRB, the decision rejecting the request for assistance was notified to the applicant on 14 June 2019, with the result that it was incumbent on him to lodge the complaint on Saturday 14 September 2019 at the latest, whereas he lodged it on 15 September 2019, that is to say, belatedly.

37      For his part, the applicant maintains that he was not able to acquaint himself with the decision rejecting the request for assistance until 17 June 2019, so that he was required to lodge the complaint by 17 September 2019 at the latest, and that he lodged it on 14 September 2019, that is to say, within the prescribed period.

38      In the present case, in the absence of specific rules, it is necessary, contrary to what the SRB maintained in its written pleadings and at the hearing, to refer to Council Regulation (EEC, Euratom) No 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time limits (OJ, English Special Edition1971(II), p. 354) (see, to that effect, judgment of 30 May 2002, Onidi v Commission, T‑197/00, EU:T:2002:135, paragraphs 46 to 49 and the case-law cited).

39      Article 3(4) of Regulation No 1182/71 provides that ‘where the last day of a period expressed otherwise than in hours is a public holiday, Sunday or Saturday, the period shall end with the expiry of the last hour of the following working day’.

40      Therefore, even if, as the SRB maintains, the starting point for the three-month period laid down in Article 90(2) of the Staff Regulations was 14 June 2019, it follows from Article 3(4) of Regulation No 1182/71 that that period ended not on 14 September 2019, which was a Saturday, but with the expiry of the last hour of the following working day, namely Monday 16 September 2019.

41      As the complaint against the decision rejecting the request for assistance was received no later than 15 September 2019, as the SRB claims, it was submitted within the prescribed period.

42      Accordingly, the plea of inadmissibility raised by the SRB must be rejected.

 Substance

43      By this action, the applicant seeks the annulment of the contested decisions and compensation for the damage allegedly suffered.

 The claim for annulment

44      In support of his claim for annulment, the applicant puts forward three pleas in law. The first plea alleges infringement of Article 12a(3) of the Staff Regulations and of point 2.1 of the rules on the SRB’s policy on protecting the dignity of the person and preventing psychological harassment and sexual harassment adopted by the decision of the SRB of 29 November 2017 (SRB/PS/2017/11) (‘the rules on the SRB’s policy on preventing harassment’), the second alleges infringement of Article 24 of the Staff Regulations and point 7.3 of the rules on the SRB’s policy on preventing harassment and the third, breach of the duty to have regard for the welfare of staff.

–       The first plea in law, alleging infringement of Article 12a(3) of the Staff Regulations and of point 2.1 of the rules on the SRB’s policy on preventing harassment

45      By the first plea in law relied on in support of his claim for annulment, the applicant alleges infringement of Article 12a(3) of the Staff Regulations and of point 2.1 of the rules on the SRB’s policy on preventing harassment.

46      In support of the first plea, the applicant puts forward several complaints with a view to establishing that the SRB was wrong to refuse, in the contested decisions, to find that he was the victim of psychological harassment.

47      According to the applicant, he was the victim of psychological harassment by his former head of unit from his recruitment until his resignation, consisting of serious and false accusations, defamatory remarks, denial of his basic statutory rights, intimidation, insults and threats.

48      Thus, his former head of unit did not issue his appraisal report for 2017 (‘the 2017 appraisal report’) until February 2019.

49      Despite repeated requests to that effect, the applicant states that he was never provided with clear professional objectives and was assigned to a position which was different from the one he had applied for and for which he had signed his employment contract, without ever receiving any job description.

50      He was refused leave on the combined grounds of sick leave taken and tasks he was involved in.

51      Although tasks that are said to have been impossible to perform had been assigned to him, his former head of unit refused to calculate his working time, while criticising him for not having performed those tasks when he was on sick leave.

52      The applicant states that he was wrongly accused of unjustified absences, whereas he was on sick leave or on annual leave, and of delays. More broadly, his former head of unit regularly made false accusations to his colleagues about his work capacity and conduct. She accused him, inter alia, first, of having revealed to the public sensitive information relating to a partially public meeting and, in particular, in the context of his 2018 appraisal report, concerning workshops with a national authority, and, second, of alleged delays in the performance of his tasks. His former head of unit thus consistently made destabilising and insulting remarks about him.

53      The applicant claims that such conduct clearly constitutes psychological harassment within the meaning of Article 12a(3) of the Staff Regulations and point 2.1 of the rules on the SRB’s policy on preventing harassment, particularly given that it was intentional conduct, since his former head of unit was fully aware of the applicant’s numerous periods of sick leave.

54      At the hearing and in response to a question put by the Court to that effect, the applicant specified that, in so far as he referred in his pleadings to discriminatory practices in relation to the complaints set out above, it was to be understood that those practices were fully covered by the broader concept of psychological harassment and that those practices were not the subject of independent complaints in the present action, the first plea in law being in any event based on psychological harassment.

55      The SRB contends that the first plea should be rejected.

56      For the purposes of ruling on the first plea, it must be noted that, in the first contested decision, the AECE concluded that the applicant had not adduced prima facie evidence of the reality of the psychological harassment of which he claims to have been the victim. Consequently, although the first plea formally alleges infringement of Article 12a(3) of the Staff Regulations and point 2.1 of the rules on the SRB’s policy on preventing harassment by the AECE, in that it wrongly concluded that there had been no psychological harassment, it must be understood that the applicant disputes the conclusion that he did not adduce prima facie evidence of the reality of that harassment (see, to that effect, judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 67). The Court’s review of legality is therefore limited to examining the merits of the decision rejecting the request for assistance on the ground that there is no prima facie evidence of the allegations and not to assessing, in the present case, whether there was psychological harassment on the part of the applicant’s former head of unit.

57      As a preliminary point, it should be recalled, first of all, that, under Article 12a(3) of the Staff Regulations, applicable to members of the temporary staff pursuant to Article 11 of the CEOS, ‘“psychological harassment” means any improper conduct which 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’.

58      In the context of the present case, it should also be noted that point 2.1 of the rules on the SRB’s policy on preventing harassment, infringement of which is also alleged by the applicant, has, in essence, the same wording as Article 12a(3) of the Staff Regulations, as interpreted by the case-law, in so far as that point 2.1 provides as follows:

‘Under the Staff Regulations 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.

Psychological harassment can manifest itself in various forms, in particular by:

–        offensive or degrading comments, in particular in public, bullying, antagonism, pressure, offensive behaviour, even refusal to communicate;

–        insults relating to someone’s personal or professional competence;

–        insulting or threatening remarks, both oral and written;

–        belittling someone’s contributions and achievements;

–        being isolated, set apart, excluded, rejected, ignored, disparaged or humiliated by their colleagues;

–        impairing their social relations;

–        setting unrealistic working objectives;

not giving someone any work, or systematically giving them work which does not meet the profile of their job and/or function …’

59      According to settled case-law, the concept of psychological harassment is defined, in Article 12a(3) of the Staff Regulations, 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 December 2017, HQ v CPVO, T‑592/16, not published, EU:T:2017:897, paragraph 101 and the case-law cited).

60      Moreover, as the conduct in question must, under Article 12a(3) of the Staff Regulations, be improper, it follows that 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).

61      Moreover, where the allegations in a request for assistance concern psychological harassment, it is for the applicant for assistance to provide prima facie evidence of such harassment in the light of the definition in Article 12a(3) of the Staff Regulations (judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 59).

62      It is in the light of those considerations that the first plea in law must be assessed, by examining the legality of the first contested decision in so far as it rejected the applicant’s request for assistance on the ground that he had not adduced prima facie evidence of psychological harassment, within the meaning of Article 12a(3) of the Staff Regulations and point 2.1 of the rules on the SRB’s policy on preventing harassment.

63      In the present case, the applicant claims to have been the victim of such practices and conduct by his former head of unit, constituting, in his view, psychological harassment, within the meaning of Article 12a(3) of the Staff Regulations and point 2.1 of the rules on the SRB’s policy on preventing harassment. He submits that, because of those practices and that conduct, an investigation should have been initiated.

64      In the first place, the applicant relies on the belated approval, by his former head of unit, of his 2017 appraisal report, a delay which he attributes to a refusal to approve that report.

65      In that regard, it is true that the 2017 appraisal report should, in principle, have been approved in 2018, whereas it was approved only in February 2019, which the SRB does not dispute.

66      Such a delay in the approval of an appraisal report is not exempt from criticism.

67      The fact remains that, in the present case, that delay cannot constitute prima facie evidence of psychological harassment by the former head of unit.

68      First, the applicant’s recruitment to the SRB in November 2017 implied, for the preparation of his 2017 appraisal report, having his former employer’s appraisal for the first 10 months of 2017, as the applicant acknowledged in an internal email of [confidential].

69      However, his former employer communicated that appraisal to the SRB only on [confidential], which the applicant does not dispute.

70      Second, it is common ground that the applicant’s reporting officer was on maternity leave throughout the second half of 2018, which explained her absence.

71      Thus, even though the former head of unit may have had approximately [confidential], between [confidential] and the beginning of her maternity leave, to approve the 2017 appraisal report, such a delay cannot in itself be regarded as prima facie evidence of a practice or conduct constituting psychological harassment by the applicant’s former head of unit.

72      For the sake of completeness, it must be stated that, in support of his argument, the applicant merely produces an internal email, dated 12 December 2018, concerning his professional objectives, in which he states that he did not receive his 2017 appraisal report.

73      Therefore, the applicant’s argument relating to the belated approval of his 2017 appraisal report cannot in any way succeed for the purposes of establishing prima facie evidence of psychological harassment.

74      In the second place, the applicant alleges a lack of clear professional objectives, after he was assigned to a post other than that for which he had applied for within the SRB.

75      As regards that complaint, it is true that the post for which the applicant was recruited was not that for which he had initially applied. Nevertheless, it is sufficient, in order to reject that complaint, to note that the applicant received, on 23 July 2017, an offer of employment and a description of the post of [confidential] in the unit in which he finally took up his duties and that he accepted that offer on 24 July 2017. Accordingly, the applicant became aware, on that occasion, of the objectives assigned to the members of the unit which he joined as set out in the job description. Moreover, it should be noted that, in his email of 24 July 2017, the applicant confirmed that the tasks outlined in the email of 23 July 2017 were fine for him and that he was glad to be entrusted with them. Accordingly, that second complaint cannot succeed.

76      As regards the definition of the applicant’s objectives for 2018, it is apparent from an email [confidential], sent by the head of unit to all the members of her unit, including the applicant, that she had drafted objectives for each of them and that she had circulated those objectives, indicating to them in the same email that those objectives would be discussed at the next unit meeting. It should be noted that, during that meeting, which was held the following day, on [confidential], all the members of the unit were able to discuss their professional objectives. In addition, by the head of unit’s email [confidential], the members of the unit were invited to review their professional objectives and to send any additional objectives by [confidential], which the applicant did on [confidential].

77      Thus, it must be held that the applicant had professional objectives for 2018 which he had been able to discuss with his former head of unit for the purposes of clarification if necessary.

78      For 2019, it is also clear from the documents in the file that the applicant was given professional objectives which he was able to discuss with his former head of unit.

79      During the appraisal dialogue for 2018, which took place on 11 March 2019, the applicant received from his former head of unit draft professional objectives for 2019, with which he was invited to acquaint himself and on which he was invited to submit his comments within two days. On 13 March 2019, his former head of unit reminded him to submit to her his comments on those draft objectives.

80      On 14 March 2019, the applicant replied that he agreed, in principle, with the professional objectives proposed, while recommending that some changes be incorporated in the final professional objectives. By email of the same date, his former head of unit communicated to him his final professional objectives, reproducing some of his suggestions, which were entered on the same day in the appropriate computer system.

81      Admittedly, it is apparent from the documents in the file, and from his answers to questions put at the hearing by the Court to that effect, that the applicant submitted, on that same date, 14 March 2019, after the former head of unit informed him of the imminent departure of a colleague with the same linguistic skills as him, which meant that he would also have an increased workload, that such objectives were unrealistic.

82      The fact remains that, as the SRB has argued, without being contradicted on that point by the applicant, that additional workload was divided between all the members of the unit of the former head of unit, with the result that the temporary assignment of additional tasks to the applicant and a reorganisation of priorities cannot be regarded as prima facie evidence of psychological harassment against the applicant.

83      In the same context, the applicant argued at the hearing that, although, in an email of 24 July 2017 in response to an email from the SRB of 23 July 2017, he had indeed stated that ‘the tasks outlined [were fine for him] and that [he was] glad to contribute to the achievement of the objectives of [his former head of unit’s] team’, that email from the SRB of 23 July 2017 mentioned only tasks, not objectives, the concept of objectives being distinct from that of tasks.

84      In that regard, the SRB argued that those two concepts are similar and that the applicant could understand that the tasks listed in the SRB’s email of 23 July 2017 corresponded to the objectives that would be assigned to him.

85      It is true, as the applicant submitted at the hearing, that it has already been held that knowledge of his or her tasks by an official does not in any way imply that objectives relating to those tasks have been duly set, whereas the administration is, in any event, under an obligation to set objectives under the conditions required. Moreover, the Courts of the European Union attach particular importance to the formal setting of objectives; a job description may not, as such, be regarded as a document fixing objectives for an official, since those two categories of documents have different aims and characteristics (see judgment of 12 May 2011, AQ v Commission, F‑66/10, EU:F:2011:56, paragraph 88 and the case-law cited).

86      The fact remains that those considerations, which are admittedly relevant in the context of challenging an appraisal report, cannot in the present context serve as a basis for identifying prima facie evidence of psychological harassment against the applicant. By that email from the SRB of 23 July 2017, the applicant acquainted himself, on that occasion, with the objectives assigned to the members of the unit in question as outlined in the job description, and, even if it did not set out objectives, but only tasks, that email does not constitute such prima facie evidence.

87      Accordingly, the applicant’s argument relating to the lack of any clear professional objectives, after he was assigned to a post other than that for which he had initially applied, cannot in any way succeed for the purpose of establishing prima facie evidence of psychological harassment by the former head of unit.

88      In the third place, the applicant claims that his former head of unit refused to allow him to take leave and refused to validate working hours, and assigned him tasks which could not be performed.

89      First of all, as regards refusals to grant leave, it is clear from the case-law that a refusal to allow leave in order to ensure the proper functioning of the service cannot be regarded, in principle, as an example of psychological harassment and that such refusal is all the more necessary where the official fails to complete the required administrative formalities (see, to that effect, judgment of 25 October 2007, Lo Giudice v Commission, T‑154/05, EU:T:2007:322, paragraph 107 and the case-law cited). For the same reasons, the official cannot validly claim that the subsequent failure to regularise his or her leave application constitutes conduct capable of being characterised as psychological harassment (see judgment of 25 October 2007, Lo Giudice v Commission, T‑154/05, EU:T:2007:322, paragraphs 107 and 108).

90      In the present case, as the SRB argued in the defence, the applicant was refused leave by his former head of unit only twice over a period of almost two years. The applicant accepted that assertion at the hearing in response to a question put by the Court.

91      Furthermore, those two refusals cannot constitute prima facie evidence of psychological harassment on the part of the former head of unit since they were justified by the need to ensure the proper functioning of the service.

92      In her first refusal, in January 2019, the applicant’s former head of unit informed him, in fairly direct terms, that the period was not appropriate for leave ‘because of several works in which [he was] involved and especially the potential crisis case that might be around that time’.

93      Likewise, in April 2019, the former head of unit refused to approve the applicant’s request for leave on the ground that he had been on sick leave during the previous two weeks and that a number of important tasks for him were pending.

94      Such isolated and justified refusals of leave, which cannot therefore be described as systematic or arbitrary, as the applicant claims, do not constitute prima facie evidence of conduct constituting psychological harassment.

95      Next, as regards the alleged refusal to validate overtime which, it is claimed, unlawfully forced the applicant to work unpaid hours and days, it must be stated that the applicant has not adduced any evidence capable of substantiating that claim, first, since he merely produces an email of 9 July 2019 which he himself wrote and which was subsequent to the first contested decision, with the result that its evidential value is limited.

96      Second, the applicant produces a calculation form for overtime from January to September 2019.

97      However, as the SRB argued in its written pleadings before the Court and in its reply to a question put by the Court at the hearing, without being contradicted on that point by the applicant, overtime worked under the Flexitime system allows members of its staff only to adapt their working hours or to request recovery of the excess hours worked, in the form of days of leave, but cannot give rise to additional remuneration.

98      In any event, it cannot be inferred from that timesheet, which is not disputed in substance by the SRB, that there is prima facie evidence of psychological harassment by the former head of unit.

99      Lastly, the same considerations apply to the alleged assignment of unrealistic tasks, inasmuch as the applicant does not adduce any evidence capable of substantiating that claim.

100    First, the applicant merely produces an email from a colleague, dated 20 February 2019, from which it is apparent that the former head of unit entrusted him with a task to be performed by the second half of March. Second, the applicant produces two emails of 2 May 2019, one from his former head of unit, written in a concise and imperative but respectful and non-aggressive manner, and the other from one of his colleagues, reminding him of the need to complete the task in question.

101    Thus, those three emails, from which it is not apparent that the tasks entrusted to the applicant were unfeasible, cannot suffice to establish prima facie evidence of psychological harassment by his former head of unit.

102    Moreover, the applicant’s allegations that his former head of unit prohibited any assistance from his colleagues in the performance of those tasks are clearly contradicted by the email from one of his colleagues of 2 May 2019, as well as by another email from another of his colleagues of the same day, which reflects teamwork by the members of the unit, including the applicant, on one of the projects in progress.

103    Accordingly, the applicant’s argument relating to the refusal to allow leave and to validate working hours as well as to the assignment of unfeasible tasks cannot succeed for the purposes of establishing prima facie evidence of psychological harassment.

104    In the fourth place, the applicant relies on a series of false accusations, threats and insults on the part of his former head of unit.

105    First, the applicant claims that his former head of unit accused him, wrongly, of an absence which was not justified by a medical certificate, even though such a certificate was not required, and in this respect he produced an email from his former head of unit of 7 May 2018.

106    However, it must be stated that it is apparent from that email, which followed an email sent to the applicant from the SRB’s Human Resources Unit informing him, in response to his request, that a medical certificate would be required beyond three days’ absence, that a medical certificate would be preferable, since the applicant had holidays planned after his sick leave. Furthermore, in her email, the former head of unit does not express any criticism against the applicant or reproach him, but, on the contrary, wishes him a speedy recovery.

107    That email, which the applicant has misinterpreted, cannot therefore be usefully relied upon as prima facie evidence of psychological harassment.

108    Second, the applicant claims that his former head of unit called him on a day for which he had requested leave, which she only approved on the same day, so that he should have been present at his place of work. To that end, he produces an email from his former head of unit of 21 February 2019.

109    However, it is clear from that email that, in reply to an email from the applicant of the previous day, sent at 19.14, in which he requested validation of leave for the following day, his former head of unit asked a third person at 10:49 to take responsibility for the request.

110    It is in no way apparent from that email that it was preceded by a telephone conversation or that the applicant should have been present at his place of work on that day. Moreover, according to the SRB, that leave was approved, which the applicant acknowledges in the application.

111    Accordingly, that email cannot usefully be relied upon in order to adduce prima facie evidence of psychological harassment.

112    Third, the applicant claims that his former head of unit accused him of failing to observe the SRB’s core working hours and to that end he produces an email from his former head of unit dated 21 February 2019.

113    However, it must be stated that it is apparent from that email that his former head of unit only deplored his departure from the office at 16.00 without informing her beforehand, reminding him of the SRB’s core working hours, namely until 16.30, and the urgency of certain files to be dealt with.

114    That email, which is justified by a failure on the part of the applicant to fulfil his obligations, cannot usefully be relied on as prima facie evidence of psychological harassment, since a warning to a member of a unit concerning compliance with working hours is part of the exercise of a management post.

115    Fourth, the applicant claims that his former head of unit ‘systematically spread false accusations’ concerning his work capacity and conduct, and to that effect produces an email from his former head of unit of 31 January 2019 concerning a joint seminar of the SRB and the EBA held on the same day, in the context of which his former head of unit allegedly accused him of unduly disclosing confidential information to the participants.

116    However, it must be stated that it is apparent from that email that his former head of unit merely drew his attention to the context of his intervention and to the sensitivity of certain subjects on which the SRB had not yet adopted an official position.

117    That email cannot usefully be relied upon in order to adduce prima facie evidence of psychological harassment, since that warning to a member of a unit is again part of the exercise of a management post.

118    Fifth, the applicant claims that his former head of unit threatened him and insulted him regularly and refers to that effect to oral comments made by her, the substance of which is disputed by the SRB.

119    In the absence of testimonies or other items of evidence attesting to such comments, the applicant’s arguments relating to a series of false accusations, threats and insults cannot succeed for the purposes of establishing prima facie evidence of psychological harassment.

120    In the fifth and last place, the applicant disputes the assessments of his former head of unit in his 2018 appraisal report.

121    In that regard, it should be borne in mind that it is settled case-law that an appraisal of the performance of an official made by a superior, even if critical, cannot as such be classified as harassment (see, to that effect, judgment of 2 July 2009, Giannini v Commission, F‑49/08, EU:F:2009:76, paragraph 136 and the case-law cited).

122    Furthermore, it has been held that, although negative comments made in probationary reports necessarily undermine the professional reputation of the person concerned, they do not undermine his or her personality, dignity or physical or psychological integrity where they are made in measured terms and where it is not apparent from the documents in the case that they are based on allegations that are unfair and lacking any connection with objective facts (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).

123    In that regard, it has also been held that the fact that the staff report contains negative comments about the official cannot be classified as psychological harassment where those comments remain within the limits of the assessor’s wide discretion, and in particular do not cross the line into offensive or hurtful criticism of the person concerned (see, to that effect, judgment of 9 March 2010, N v Parliament, F‑26/09, EU:F:2010:17, paragraph 86).

124    In the present case, it is apparent that, in the 2018 appraisal report, the applicant’s former head of unit, as a reporting officer, remained within the limits of her wide discretion and that she did not, in particular, cross the line into offensive or hurtful criticism of the applicant, the action brought by the latter against the 2018 appraisal report having, in any event, been dismissed by today’s judgment in JS v SRB (T‑270/20, not published).

125    That assessment cannot be called into question by the arguments put forward by the applicant at the hearing in response to a question put by the Court. After accepting that an appraisal report containing negative comments cannot, in itself, constitute psychological harassment, the applicant claimed that the position would be different in the absence of clearly defined professional objectives. However, it has been held above that, in the present case, the complaint alleging such a failure to define objectives has no factual basis.

126    Accordingly, the applicant’s line of argument based on the 2018 appraisal report for the purposes of adducing prima facie evidence of psychological harassment must be rejected.

127    Having examined in isolation the practices and conduct alleged by the applicant and concluded that they cannot be regarded as prima facie evidence of psychological harassment, within the meaning of Article 12a(3) of the Staff Regulations and point 2.1 of the rules on the SRB’s policy on preventing harassment, the Court finds that it is still necessary to examine them together.

128    In that regard, it should also be borne in mind that it is settled case-law that the fact that an official has difficult, or even conflictual, relations with 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).

129    In the circumstances of the present case, taken as a whole, it is true that the events put forward reveal a possibly conflictual relationship and, at the very least, a certain tension felt by the applicant in relation to his former head of unit, but do not reveal prima facie evidence of improper conduct which took place over a period, and which was repetitive or systematic on the part of the latter towards him.

130    The practices and conduct upon which the applicant relies, taken together and in context, irrespective of their very relative accumulation over time, cannot constitute, from the point of view of an impartial and reasonable observer, prima facie evidence of acts which may have the effect of undermining the applicant’s personality, dignity or physical or psychological integrity resulting from the malicious intent of his former head of unit.

131    The first plea must therefore be rejected.

–       The second plea in law, alleging infringement of Article 24 of the Staff Regulations and of point 7.3 of the rules on the SRB’s policy on preventing harassment

132    By the second plea in law relied on in support of his claim for annulment, the applicant alleges infringement of Article 24 of the Staff Regulations and of point 7.3 of the rules on the SRB’s policy on preventing harassment.

133    According to the applicant, the SRB was fully aware of the psychological harassment against him by his former head of unit, since he had reported it to human resources and had provided that department, as early as February 2019, with various pieces of evidence to that effect in addition to medical certificates. Those warnings prompted the involvement of the person responsible for compliance with professional ethics and the confidential counsellor in the human resources service. Following the submission of his request for assistance, hearings were held and, three days after his request for assistance, the applicant was reassigned to another unit as an emergency measure.

134    Notwithstanding that measure, the SRB decided not to initiate an administrative investigation on the ground that there was insufficient evidence to support the request for assistance. That rejection of the request for assistance is, according to the applicant, manifestly unlawful in such circumstances and the SRB should, at the very least, have initiated an investigation, irrespective of his reassignment to another unit.

135    Moreover, even after his reassignment, the applicant continued to suffer harassment by his former head of unit, in particular in the context of the appraisal exercise for 2018 and, even after his resignation, in his 2019 appraisal report.

136    The SRB contends that the second plea should be rejected.

137    In order to rule on the second plea, it is necessary to determine whether, by rejecting the request for assistance without initiating an investigation, the SRB infringed Article 24 of the Staff Regulations and point 7.3 of the rules on the SRB’s policy on preventing harassment.

138    As a preliminary point, it should be noted, first of all, that, under Article 24 of the Staff Regulations:

‘The Union shall 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 a member of his family is subjected by reason of his position or duties.

It shall jointly and severally compensate the official for damage suffered in such cases, in so far as the official did not either intentionally or through grave negligence cause damage and has been unable to obtain compensation from the person who did cause it.’

139    It is settled case-law that Article 24 of the Staff Regulations is designed to protect officials of the European Union against degrading treatment of any kind not only by third parties to the institution, but also by persons working for the institution, be that any other official or servant, irrespective of his or her hierarchical position, or Members of the institution (see judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 54 and the case-law cited).

140    An equivalent rule of evidence can be found in the fourth paragraph of point 7.3 of the rules on the SRB’s policy on preventing harassment, which provides:

‘Requests for assistance must be submitted to the SRB’s entity in charge of human resources, the appointing authority or the entity in charge of compliance … The appointing authority can then instruct the entity in charge of compliance to carry out an administrative inquiry to determine the facts of the case and apportion any responsibility. Any person who feels they are the victim of sexual harassment must provide all details which might support their allegations. In the case of psychological harassment, a degree of evidence must be provided by the complainant.’

141    Furthermore, as was noted in paragraph 61 above, where the allegations in a request for assistance concern psychological harassment, it is for the applicant for assistance to adduce prima facie evidence of psychological harassment in the light of the definition in Article 12a(3) of the Staff Regulations.

142    It follows, with regard to the requirement that the applicant for assistance must provide prima facie evidence of the reality of the abusive conduct of which he or she claims to be a victim, that the institution in question cannot be required to carry out an administrative investigation on the basis of mere allegations that are devoid of evidence, it being understood that in determining the measures which it considers appropriate to establish the reality and scope of the alleged facts, the institution must also take care to protect the rights of the persons implicated in a request for assistance and liable to be the subject of an investigation (see judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 58 and the case-law cited; order of 14 July 2021, AI v ECDC, T‑79/20, not published, EU:T:2021:478, paragraph 63).

143    In the context of the second plea in law relied on in support of his claim for annulment, it must be stated that the applicant merely reproduces arguments which he put forward in the context of the first plea, with the exception of an argument relating to the SRB’s alleged knowledge of psychological harassment from February 2019.

144    Apart from that latter argument, all the applicant’s arguments were rejected in the context of the assessment of the first plea, in so far as the practices and conduct of his former head of unit on which he had relied did not permit the inference that he had adduced prima facie evidence of psychological harassment.

145    In the assessment of the second plea, the same considerations must prevail under Article 24 of the Staff Regulations and under the fourth paragraph of point 7.3 of the rules on the SRB’s policy on preventing harassment.

146    Thus, the SRB cannot be criticised for not having initiated an investigation, on the basis of the obligation to provide assistance, pursuant to those provisions, in the absence of prima facie evidence of psychological harassment.

147    Accordingly, it remains to be ascertained whether the SRB had information which should have led it to initiate an administrative investigation, as of February 2019, after the applicant’s reassignment in May 2019 and even after his resignation, irrespective of the relevance of that information for the purposes of assessing the legality of the contested decisions.

148    First, the applicant’s request that a third party be present at the appraisal dialogue, which was, moreover, accepted by the former head of unit, cannot in itself constitute prima facie evidence of psychological harassment justifying the initiation of an investigation, and nor could his state of health. The same is true of his reassignment, requested by the applicant and accepted by the SRB. That interim measure does not show that the SRB had prima facie evidence of harassment, in so far as it is an emergency measure, taken as a precaution, without prejudging the veracity of the applicant’s allegations.

149    Second, nor can the SRB be accused of having failed to fulfil its duty to provide assistance in so far as it maintained, for the 2019 appraisal exercise, the former head of unit as the applicant’s reporting officer for the period prior to his reassignment, namely until [confidential]. Moreover, the role of reporting officer was entrusted to another person for the remainder of 2019, as the SRB argued at the hearing, without being contradicted on that point by the applicant.

150    Third, the applicant cannot usefully rely on the fact that his application for reclassification was unsuccessful, since the former head of unit was not involved in the assessment of the applicant’s application, as the SRB maintained, without being contradicted on that point by the applicant.

151    Fourth, the failure to take account of overtime in the context of the flexible organisation of working hours cannot be attributed to the former head of unit or, more broadly, to the SRB, in so far as the SRB claimed, without being contradicted on that point by the applicant, that that failure was the result of the applicant’s delay in entering those hours in the computer system provided for that purpose.

152    The second plea must therefore be rejected.

–       The third plea in law, alleging breach of the duty to have regard for the welfare of staff

153    By the third plea relied on in support of his claim for annulment, the applicant alleges breach of the duty to have regard for the welfare of staff.

154    According to the applicant, after being fully informed, in February 2019, of the conduct of his former head of unit against him and of the harm caused to his health, the SRB, having maintained his former head of unit in her role as reporting officer while taking note of the need for a reassignment, was required, under the duty to have regard for the welfare of staff, to grant his request for assistance, in particular with regard to the procedure for his appraisal.

155    As of March 2019, the applicant’s incapacity for work was recognised, in consultation with the European Commission’s medical service. Moreover, the resumption of his duties, with a request for assistance on 2 May 2019, ultimately resulted in his resignation, even though the SRB was fully informed of his state of health and of the practices of his former head of unit.

156    In May 2019, when the SRB requested additional evidence from him, the applicant was on sick leave and therefore very diminished in his capacity to provide such evidence, which the SRB is said to have not taken into account at all.

157    Under the duty to have regard for the welfare of staff, the SRB was required to examine the applicant’s request for assistance, taking into account all aspects of his situation, in particular his state of health.

158    The applicant states that rejecting the request for assistance without initiating an investigation, despite the fact that the SRB recognised the need to reassign the applicant as a matter of urgency immediately after his request for assistance, constitutes a clear breach of the duty to have regard for the welfare of staff.

159    The SRB contends that the third plea should be rejected.

160    In order to rule on the third plea, alleging breach of the duty to have regard for the welfare of staff, it should be borne in mind that that concept, while not mentioned in the Staff Regulations and the CEOS, reflects the balance of reciprocal rights and obligations established by that legislation in the relationship between a public authority and its staff. That duty implies in particular that when the authority takes a decision concerning the situation of a member of staff, it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the staff member concerned (judgments of 28 May 1980, Kuhner v Commission, 33/79 and 75/79, EU:C:1980:139, paragraph 22, and of 29 June 1994, Klinke v Court of Justice, C‑298/93 P, EU:C:1994:273, paragraph 38; see, also, judgment of 7 November 2019, WN v Parliament, T‑431/18, not published, EU:T:2019:781, paragraph 105 and the case-law cited).

161    Thus, it has already been held that, since, when the administration takes a decision pursuant to Article 24 of the Staff Regulations, it is obliged to take into consideration all the factors which may determine its decision on a request for assistance concerning alleged harassment, it may not reject such a request on the ground that the staff member concerned has not provided prima facie evidence of his or her claims where it is established that the administration is in possession of other information capable of supporting the allegation of harassment (judgment of 26 March 2015, CN v Parliament, F‑26/14, EU:F:2015:22, paragraph 52).

162    Moreover, the obligations arising for the administration from the duty to have regard for the welfare of staff are substantially enhanced where the situation of a member of staff whose physical or mental health is shown to be affected is involved (see judgment of 7 November 2019, WN v Parliament, T‑431/18, not published, EU:T:2019:781, paragraph 106 and the case-law cited).

163    The third plea in law must be assessed in the light of those considerations.

164    In the present case, in the third plea relied on in support of his claim for annulment, the applicant alleges breach of the duty to have regard for the welfare of staff, in that the SRB rejected his request for assistance without opening an investigation.

165    In that regard, the applicant claims, inter alia, that he requested, in February 2019, to be placed under the authority of another head of unit, that he requested to be accompanied at the appraisal dialogue and that he had referred the matter to confidential advisers and the Staff Committee.

166    However, those factors are not sufficient for it to be possible to conclude that the SRB infringed the duty to have regard for the welfare of staff by reason of the failure to open an administrative investigation for psychological harassment, particularly since, as is apparent from the examination of the first and second pleas, the applicant did not submit prima facie evidence to show that he had been the subject of psychological harassment by his former head of unit and that, as a result, the SRB should have granted his request for assistance.

167    That assessment cannot be called into question by the SRB’s awareness of the applicant’s increasing absences on sick leave, in so far as the applicant has not established in the present proceedings that the SRB had any evidence to suggest that his absences were attributable to possible psychological harassment.

168    In any event, it must be stated that, in the present case, the SRB acted in accordance with its duty to have regard for the welfare of staff.

169    First, following the applicant’s request for assistance in respect of alleged psychological harassment, the SRB immediately reassigned the applicant to another unit.

170    That immediate reassignment cannot be interpreted, contrary to what is claimed by the applicant, as an acknowledgement by the SRB of the alleged psychological harassment.

171    In so doing, the SRB simply exercised its duty to have regard for the welfare of staff in the interests of the applicant, by way of an emergency measure taken as a precaution.

172    Second, in order to take account of his state of health and by acceding to a leave request from the applicant, the SRB twice extended the period granted to the applicant to provide evidence of the alleged psychological harassment.

173    That assessment cannot be called into question by the fact that his former head of unit was maintained as the reporting officer for the preparation of the 2019 appraisal report.

174    Accordingly, the third plea in law must be rejected as must, therefore, the claim for annulment in its entirety.

 The claim for damages

175    In support of his claim for damages, the applicant alleges non-material damage, in the amount of EUR 20 000, and material damage, in the amount of EUR 77 408.

176    The SRB contends that the claim for damages should be rejected.

177    In that regard, it should be borne in mind that, according to settled case-law, in the context of a claim for damages made by an official or servant, the institution can be held liable in damages only if a number of conditions are satisfied: the illegality of the allegedly wrongful act committed by the institution, actual harm suffered, and the existence of a causal link between the act and the damage alleged to have been suffered. The three conditions for liability are cumulative, which means that where one of them is not met, the institution cannot be held liable (judgment of 16 December 1987, Delauche v Commission, 111/86, EU:C:1987:562, paragraph 30).

178    In the present case, it must be stated that the damage allegedly suffered by the applicant, both of a non-material and material nature, is alleged, as the applicant expressly acknowledged at the hearing, only in so far as it was caused by the contested decisions rejecting his request for assistance.

179    Since his claim for annulment of those decisions has been rejected by the present judgment, the claim for damages must be rejected and, therefore, the action must be dismissed in its entirety.

 Costs

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

181    In the present case, since the applicant has been unsuccessful, he must be ordered to pay the costs in accordance with the form of order sought by the SRB.

On those grounds,

THE GENERAL COURT (Seventh Chamber)

hereby:

1.      Dismisses the action;

2.      Orders JS to pay the costs.

Delivered in open court in Luxembourg on 19 October 2022.

*      Language of the case: English.

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