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

JUDGMENT OF THE GENERAL COURT (First Chamber)

30 March 2022 (*)

(Civil service – EIB staff – Complaint of psychological harassment – Administrative investigation – Decision rejecting the complaint – Error of assessment – Principle of sound administration – Liability)

In Case T‑299/20,

KF, represented by L. Levi and A. Blot, lawyers,

applicant,

v

European Investment Bank (EIB), represented by K. Carr and J. Pawlowicz, acting as Agents, and by J. Currall and B. Wägenbaur, lawyers,

defendant,

APPLICATION under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union seeking, first, annulment of the EIB’s decision of 27 January 2020 rejecting the applicant’s complaint of harassment and, secondly, compensation for the material and non-material damage which she claims to have suffered as a result of that decision,

THE GENERAL COURT (First Chamber),

composed of H. Kanninen, President, N. Półtorak (Rapporteur) and M. Stancu, Judges,

Registrar: I. Pollalis, Administrator,

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

gives the following

Judgment

 Background to the dispute

1        The applicant, KF, former Head of the [confidential] (1) Unit at the European Investment Bank (EIB), joined that unit in [confidential] 2014 under a fixed-term contract. On [confidential] 2017, that contract was extended until [confidential] 2020.

2        A new Director of the EIB’s [confidential], A, was appointed in [confidential] 2016. She held that post until [confidential] 2018. A new Acting Head of Division, B, was appointed in [confidential] 2018.

3        On [confidential] 2018, the applicant was placed on sick leave because she was suffering from various symptoms of psycho-medical decompensation (burnout). After initially being prescribed medicated treatment, she was hospitalised from [confidential] to [confidential] 2018.

4        From [confidential] to [confidential], the applicant worked part-time.

5        On 21 March 2019, the applicant lodged, by post, a complaint under the investigation procedure laid down by the EIB’s Dignity at Work Policy, in the version then applicable (‘the complaint’).

6        From [confidential] 2019, the applicant resumed full-time work until [confidential] 2019, when she was again placed on sick leave.

 The content of the complaint relating to psychological harassment

7        In her complaint, the applicant informed the Director-General and Head of the EIB’s Personnel Directorate that she had decided to use the investigation procedure laid down by the Dignity at Work Policy. That complaint was brought against B and A.

8        The applicant then set out the various factors which had led her to feel harassed. To that end, the complaint was divided into two separate parts. In the first part, the applicant set out the legal context in the light of which she considered that her complaint should be investigated. In the second part, she summarised the factual circumstances of her return to work following her sick leave. She then referred to various events which, in her view, showed that she had been harassed.

9        First, the applicant referred to an incident that occurred on [confidential]. She explained that she had requested a meeting with her team as well as individual meetings with the various team members in order better to understand the activities that had been carried out in her absence and the objectives set for those team members. She then stated that B had intervened, in an authoritarian manner, instructing her to abstain from any contact with the team and instructing her to move to another office. She stated that she had been shocked and felt isolated professionally. She claimed that B had not at first provided her with any explanation and had subsequently come into her office to tell her that that decision had been taken to protect her, and was supported by the EIB’s Human Resources Directorate and medical service, on account of her return to work on amended terms which did not allow her to remain Head of Unit. The applicant disputed those explanations, which she considered to be misguided. Furthermore, she claimed that she had been obliged to request written authorisation from B in order to participate in meetings. She added that that humiliating situation of isolation had led to rumours that neither B nor any of her immediate superiors had taken any steps to extinguish.

10      Secondly, the applicant described, more generally, the harassment to which she considered to have been subject. She stated that her self-esteem had deteriorated and that having to pass her unit’s office several times a day caused her daily stress and humiliation. She stated that, after a meeting with C, who was the new Director of [confidential] since [confidential] 2019, and with B to re-explain her current situation, she had not received any feedback about her future at the EIB. She claimed to have the impression that the various forms of behaviour towards her were intended to cause her to leave the EIB.

11      Thirdly and lastly, the applicant also provided, as an annex, a number of items of correspondence intended to substantiate her claims.

 The investigation procedure

12      On 11 April 2019, the applicant enquired of the Director-General and Head of the EIB’s Personnel Directorate what had become of the complaint she had lodged, since she had received no information about it. After several email exchanges with various persons involved, it transpired that the EIB had indeed received the registered letter containing the applicant’s complaint on 22 March 2019. By email, the Director-General and Head of the Personnel Directorate undertook to follow up the applicant’s complaint immediately from Monday 15 April 2019, and asked her if she would send the complaint again, also by email. The applicant did so on Monday 15 April 2019.

13      A three-member panel was set up under the investigation procedure laid down by the Dignity at Work Policy (‘the Panel’).

14      From July 2019, the applicant and the two individuals against whom the complaint had been brought provided the Panel with information and a range of documents, including witness evidence provided, inter alia, by various EIB staff members.

15      On 1 August 2019, the Panel met to interview the applicant, B, A and various witnesses mentioned by the parties.

16      On 12 November 2019, the Panel sent a draft report to the applicant and the two individuals against whom the complaint had been brought. On 29 November 2019, the applicant provided her comments on that report.

 The investigation report and the contested decision

17      The Panel’s report was finalised on 15 January 2020 (‘the report’).

18      On 27 January 2020, the President of the EIB endorsed the report in its entirety and rejected the applicant’s complaint (‘the contested decision’).

19      By email of [confidential] 2020, the contested decision and the report were sent to the applicant, while she was on sick leave.

20      By decision of 14 April 2020, the EIB decided not to renew the applicant’s contract which would therefore expire on [confidential] 2020.

 Procedure and forms of order sought

21      By application lodged at the Court Registry on 20 May 2020, the applicant brought the present action.

22      The written part of the procedure was closed on 15 January 2021.

23      On an application by the applicant under Article 66 of its Rules of Procedure, the Court decided to omit the applicant’s name from the public version of the present judgment.

24      On 12 February 2021, the applicant requested that a hearing be held pursuant to Article 106 of the Rules of Procedure.

25      At the hearing on 14 September 2021, the parties presented oral argument and replied to the questions put to them by the Court.

26      The applicant claims that the Court should:

–        annul the contested decision;

–        order the EIB to compensate her for the material and non-material damage suffered;

–        order the EIB to pay the costs.

27      The EIB contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

 The claim for annulment

28      In support of her claim for annulment, the applicant relies on four pleas in law. The first alleges breach of the duty to state reasons, which was committed by the President of the EIB in the contested decision when he simply endorsed the recommendation made by the Panel in the report without explaining why. The second alleges that the Panel substituted its assessment for that of the President of the EIB, since the President of the EIB confined himself to endorsing the recommendation of a body that is merely advisory. The third alleges manifest errors of assessment, incorrect assessments by the Panel of the concept of harassment and breach of the principle of sound administration and of the duty of care. Lastly, the fourth plea alleges breach of the principle of sound administration and of the duty of care resulting from the manner in which the EIB managed the entire procedure relating to the handling of her complaint. At the hearing, the applicant also raised a new plea alleging infringement of the right to be heard.

29      The Court considers it appropriate to begin by examining the third plea.

30      By her third plea, the applicant submits, raising separate complaints, that the Panel erred in its report in finding that A and B did not commit acts of psychological harassment towards her. She submits, in essence, that the Panel misapplied the definition of the concept of harassment and that a number of errors as regards the establishment and interpretation of the facts vitiate the assessment at the end of which the Panel reached such a conclusion. In the light of those considerations, she challenges the legality of the contested decision on the ground that it is vitiated by manifest errors of assessment, an incorrect assessment by the Panel of the legal concept of harassment and a breach of the principle of sound administration and of the duty of care.

31      In that regard, it should be stated that since, in the contested decision, the President of the EIB endorsed the Panel’s findings, the assessment of the various complaints raised by the applicant in order to challenge the Panel’s work in the report necessarily amounts, as a consequence, to assessing the legality of the contested decision (see, to that effect, judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 96).

32      For the purposes of that examination, in the first place, it should be noted that Article 3.6.1 of the EIB Staff Code of Conduct (‘the Code of Conduct’) defines psychological harassment as ‘repeatedly hostile or tasteless remarks, acts or behaviour over a fairly long period by one or more members of staff towards another member of staff’. That provision of the Code of Conduct must be read alongside the provision of the Dignity at Work Policy defining psychological harassment, according to which ‘it is irrelevant whether the behaviour is intentional or not [since t]he key feature is that harassment and bullying is unwelcome and unacceptable behaviour that demeans the self-respect and confidence of the recipient’ (see judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 87 and the case-law cited).

33      Consequently, in accordance with the definition of psychological harassment in the Dignity at Work Policy, read with Article 3.6.1 of the Code of Conduct, remarks, acts or behaviour by a member of EIB staff towards another member of staff constitute ‘psychological harassment’ where they have objectively entailed an attack on the self-esteem and self-confidence of that person (see judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 88 and the case-law cited).

34      The definition of the concept of ‘psychological harassment’ in Article 3.6.1 of the Code of Conduct requires the repetition, and in addition ‘over a fairly long period’, of hostile or tasteless remarks, acts or behaviour in order for such conduct to fall within that concept. Viewed in that light, the definition bears a similarity to that set out in Article 12a of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), which defines ‘psychological harassment’, as regards the officials and other members of staff covered by those regulations, as ‘improper conduct’ taking the form of physical behaviour, spoken or written language, gestures or other acts which take place ‘over a period’, and are ‘repetitive or systematic’, which suggests that psychological harassment is to be understood as a process that occurs over time and presumes the existence of repetitive or continual conduct that is ‘intentional’ rather than ‘accidental’ (see judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 89 and the case-law cited).

35      Therefore, the reference in the case-law on Article 12a of the Staff Regulations to a ‘process that occurs over time and presumes the existence of repetitive or continual conduct’ can also apply by analogy to the concept of ‘psychological harassment’ applicable to members of staff of the EIB (see judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 90 and the case-law cited).

36      As a result of that process, psychological harassment may, by definition, be the outcome of a set of different acts by one member of EIB staff towards another 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 having ‘objectively entailed an attack on the self-esteem and self-confidence of that [other member of staff]’ at whom the acts were directed, for the purpose of Article 3.6.1 of the Code of Conduct (judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 93).

37      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 judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 94 and the case-law cited).

38      Furthermore, 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).

39      In the second place, it should be noted that the objective of an administrative investigation is to ascertain the facts and, having done so, to take the appropriate action, in full knowledge of the matter, both in the light of the case that is the subject of the investigation and, more generally, to comply with the principle of sound administration, in order to prevent such a situation recurring (see judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 59 and the case-law cited).

40      Where, in response to a request for assistance for alleged acts of harassment, the appointing authority or the authority empowered to conclude contracts of employment considers that it has before it sufficient evidence to warrant opening an administrative investigation, that investigation must be allowed to run its course so that the administration, enlightened by the findings of the investigation report, may adopt a definitive position in that regard, so that it may either decide that no action is to be taken on the request for assistance or, where the facts alleged are proven and come within Article 12a of the Staff Regulations, inter alia decide that disciplinary proceedings are to be initiated so that, if appropriate, disciplinary penalties may be imposed on the alleged harasser (see, to that effect, judgment of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraphs 56 and 57 and the case-law cited).

41      The establishment of the facts by the institution following the investigation is essential for the person who considers himself or herself to be a victim of harassment. A situation of harassment, if established, harms the personality, dignity and physical or psychological integrity of the victim and the recognition, following the administrative investigation, of the existence of psychological harassment is in itself likely to have a beneficial effect in the therapeutic recovery process of the victim (judgment of 14 July 2021, AI v ECDC, T‑65/19, EU:T:2021:454, paragraph 95).

42      In the third place, it should be pointed out that, in the report, the Panel stated that, although the procedure followed during the investigation had not been governed by the Dignity at Work Policy that came into force on 8 May 2019, the method which the Panel followed had nevertheless been guided by that policy.

43      In that regard, it is to be noted, in particular, that the formal investigation procedure laid down by that policy is ‘aimed at establishing the facts and at adopting appropriate measures’ (recital 4). Under that formal investigation procedure, the mandate of the Panel is to ‘conduct a thorough inquiry … with a view to establishing the facts relating to the alleged Harassment, as described in the Complaint or in the Note’ (Article 26.2(a)). Thus, the Panel is required to ‘conduct the Inquiry, involving an assessment of the facts’ (Article 27.1(a)) and to ‘respect at all stages the right of defence and the right to be heard’ (Article 27.1(d)). The alleged victim is required to submit ‘prima facie evidence that the alleged Harassment took place’ (Article 28.1).

44      In the fourth place, it should be stated that, in order to rule on the merits of the third plea in which the applicant challenges the Panel’s assessment of various forms of conduct which, she submits, constitute psychological harassment, it is necessary first of all to examine each of the alleged forms of conduct in turn and, in that context, to point out that the concept of ‘psychological harassment’ referred to in Article 3.6.1 of the Code of Conduct is based on an objective concept. Therefore, where it has been alleged that Article 3.6.1 of the Code of Conduct was misapplied, it is necessary to examine whether the EIB erred in its assessment of the facts in the light of the definition of psychological harassment laid down in that provision, not whether that error is manifest (see, to that effect, judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 99 and the case-law cited).

45      In the fifth place, it should be borne in mind that, in accordance with case-law, the administration is required, under the principle of sound administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, to examine with care and impartiality all the relevant aspects of the individual case brought before it and to gather all the factual and legal information necessary to exercise its discretion and to ensure the proper conduct and effectiveness of the procedures which it sets in motion (see judgment of 5 June 2019, Bernaldo de Quirós v Commission, T‑273/18, not published, EU:T:2019:371, paragraph 58 and the case-law cited).

 The complaints based on A’s conduct

46      In essence, the applicant alleges that the Panel erred in its assessment of the various forms of conduct which, in her view, constituted harassment towards her, in the light of the definition of that concept. That conduct consisted in, first, the EIB extending her fixed-term contract instead of converting it into a contract of indefinite duration, without giving her any convincing explanation for that decision, and, secondly, A’s attitude towards her, which was, she submits, generally aggressive and humiliating. The applicant claims, more generally, that the Panel’s erroneous assessment of her situation was not in conformity with the principle of sound administration or the duty to state reasons and that the Panel should have reached the conclusion that she had suffered psychological harassment had it correctly applied the definition of that concept.

–       Extension of the applicant’s contract

47      The applicant complains about the circumstances in which it was decided, in October 2017, to extend her fixed-term contract by two years, rather than convert it into a contract of indefinite duration. She states that no explanation was given to her to enable her to understand that decision, even though she had asked for an explanation, and that the level of her performance justified her contract being converted. She submits that those events are attributable, at least in part, to A. She also disputes the explanations subsequently given by the EIB to justify that decision.

48      The EIB contends that the applicant did not challenge the decision to extend her contract within the prescribed period and that, since that decision is therefore final, it cannot be found that a lawful decision can be considered abusive. The EIB accepts that there was contradictory evidence regarding the reason why the applicant’s contract was not renewed and who recommended that the contract should not be converted into a contract of indefinite duration. However, it submits that that evidence does not support the conclusion that A was responsible.

49      In the report, the Panel observed that, since 2017, the conversion rate of fixed-term contracts into contracts of indefinite duration in the division where the applicant worked was below the average conversion rate for the rest of the EIB. It also stated that, since there is no obligation to give a reason when a fixed-term contract expires, by analogy, there should be no obligation to state reasons for a decision to extend a contract rather than terminate it. However, the Panel found that, despite the applicant’s repeated requests, no explanation had been given to her as to why the decision had been taken to extend her fixed-term contract rather than convert it into a contract of indefinite duration. The Panel noted that the EIB had likewise not been able to provide further explanations when the Panel itself asked the EIB. In those circumstances, it stated that it was not surprising that the applicant had been confused by the fact that her contract had been extended rather than converted into a contract of indefinite duration. It considered the EIB to have poorly managed the situation, which made the applicant feel vulnerable and upset. However, the Panel did not find that this failure to communicate was an incident of harassment within the definition given earlier in the report.

50      As a preliminary point, the EIB argues that the applicant is seeking to circumvent the time limit for appealing the decision to extend her contract for a period of two years, which was adopted on 1 November 2017 and then communicated to her in January 2018.

51      In that regard, it should nevertheless be noted that the fact that the applicant did not challenge the legality of the decision to extend her contract within the prescribed period does not mean that the Court cannot take account of that decision in its overall assessment of the evidence capable of establishing whether the President of the EIB made an error of assessment by endorsing the conclusions reached in the report that no acts of harassment had been committed towards her. Without assessing the legality of that decision, the circumstances of, and reasons for, its adoption may be taken into consideration in order to examine whether the possible negative consequences that they might have had for the applicant can be linked to harassment (see, to that effect, judgment of 4 May 2005, Schmit v Commission, T‑144/03, EU:T:2005:158, paragraph 68).

52      Furthermore, in order to justify the Panel’s conclusion, first, the EIB submits during the proceedings before the Court, in essence, that A was not responsible for adopting the decision of 1 November 2017 by which the applicant’s contract was extended rather than converted into a contract of indefinite duration. Secondly, it adds that it could not be concluded that A had personally harassed the applicant, since she had, on the contrary, given her the opportunity to improve her performance by extending her fixed-term contract. Thirdly and lastly, it submits that the lack of reasons for that decision constituted a collective failure on the part of its management staff, but could not be attributed to A specifically.

53      In the first place, as regards A’s involvement in the adoption of the decision of 1 November 2017 and in the failures found by the Panel as regards communicating to the applicant the reasons for that decision, the EIB is incorrect in its claim that there is no evidence of her personal involvement.

54      It should be noted in that regard that such an argument does not appear in the report and that the EIB raised it only in the proceedings before the Court. It is apparent from that report that A acknowledged having been involved in adopting the decision of 1 November 2017. She stated, however, that the decision to extend the applicant’s contract had been made together with the Head of Division at the time, which was expressly challenged by the applicant and denied by the then Head of Division.

55      In addition, as regards the reasons for the decision of 1 November 2017, the applicant confirmed, in an email of 2 February 2018, that she had sought explanations from A, who had not provided any. In the report, the Panel also noted that the applicant had asked for clarification from her management on several occasions.

56      It should be pointed out that the EIB does not call those claims into question.

57      In the second place, as regards the explanation to the applicant of the reasons which formed the basis of the decision to extend her fixed-term contract rather than convert it into a contract of indefinite duration, the applicant disputes the Panel’s assessment at the end of which it concluded that that conduct did not constitute harassment within the definition of that concept.

58      In the report, the Panel found, in essence, that A’s management of the situation had been poor and that the situation concerned a staff member in a very stressful situation. It then noted the contradictions which vitiated the explanations given by A in order to justify such a decision. Lastly, it found that that information may have caused the applicant to be confused. It therefore reached the conclusion that A’s poor management of the situation had caused the applicant to feel more vulnerable and upset.

59      However, the Panel did not find A’s poor management of the situation to constitute an incident of psychological harassment. To justify that finding, it merely referred in the abstract to the definition of the concept of psychological harassment set out in the report.

60      In that regard, it is nevertheless apparent from paragraphs 32 to 38 above that conduct is, in essence, to be regarded as constituting psychological harassment where, first, it is unwelcome and unacceptable, next, it objectively demeans the self-esteem and self-confidence of the person subject to it and, lastly, it is repetitive and intentional.

61      Since the Panel itself found, first, that A’s conduct amounted to poor management of the situation and, secondly, that it had the effect of placing the applicant in a stressful situation and caused her to feel more vulnerable and upset, it must be held that the Panel could not, based solely on the reasons set out in the report and without making an error of assessment, reach the conclusion that that conduct did not satisfy the conditions for psychological harassment set out in the preceding paragraph.

–       A’s conduct

62      In essence, the applicant claims that the analysis of A’s conduct towards her, as carried out by the Panel in the report, is misguided. She maintains, referring to specific situations and witness evidence, that A’s conduct towards her was generally aggressive and sometimes humiliating. She claims that the Panel failed to draw the necessary conclusions from the witness evidence that she provided, that it did not correctly analyse the evidence adduced and that there was no evidence that she had behaved unprofessionally.

63      The EIB submits that the Panel was right to find that a mere conflict of personality between staff members did not constitute harassment. According to the EIB, the Panel drew the correct conclusion that, although A could be criticised for showing impatience, the applicant had nevertheless behaved inappropriately and, even though some of this might have resulted from the pressure that A put her under, that was only a partial explanation. The EIB also states that the applicant did not adduce sufficient evidence to show that she was harassed by A.

64      More generally, as regards A’s conduct towards the applicant, the EIB submits that there is nothing to corroborate the applicant’s argument that A called her ‘a stupid woman’ or ‘shouted at her’. In addition, it contends that the report correctly records both the witness evidence submitted by the applicant, which indicated that A could have a difficult temper, and the comments made by one witness that, while he may have had personal difficulties with A initially, he nevertheless considered that working with the applicant had proved much more difficult.

65      In the report, the Panel observed, inter alia, that, until A’s arrival in the post, the applicant did not seem to have run into problems, but that there have been regular conflicts between them since. It also stated that conflicting evidence had been given by several witnesses, some of whom spoke of A’s appropriate behaviour and some of inappropriate behaviour either towards them or towards the applicant. A’s annual appraisals also referred to relationship and communication issues in 2017 and 2018. In the light of those factors, the Panel questioned the long-term efficiency of A’s management style. However, the Panel concluded that, in the present case and specifically as regards A’s relationship with the applicant, it had deteriorated on account of their strong personalities and the fact that neither took adversity well. In that regard, it stated that the applicant may have had difficulty managing her emotions, which led to inappropriate behaviour. It nevertheless qualified that conclusion by finding that such behaviour might have been caused, at least in part, by the increasing pressure that A had put her under. However, since there was no evidence of A’s outbursts of temper towards the applicant, the Panel found that her behaviour towards the applicant did not constitute harassment.

66      As a preliminary point, it should be borne in mind that, in the light of the case-law set out in paragraphs 39 to 41 above, since the applicant’s claims were considered to constitute sufficient evidence to warrant opening an administrative investigation, the objective of that investigation was first to ascertain the facts and, having done so, to take the appropriate action, in full knowledge of the matter. It was also for the administration, in the light of the case-law cited in paragraph 45 above, to gather all the factual and legal information necessary to exercise its discretion. It is in the light of those considerations that the applicant’s arguments in the present case are to be assessed.

67      In the first place, the applicant claims, in essence, that the Panel erred in finding that A’s behaviour towards her did not constitute psychological harassment, even though consistent evidence supported her position. In that regard, she refers, first, to the witness evidence she produced, which, in her view, supports her own statements, and, secondly, to evidence which, in her submission, shows that A’s behaviour gave rise to concerns.

68      First, as regards the witness evidence which, in the applicant’s view, helps to show that A’s behaviour towards her was inappropriate, it should be noted that the witness evidence of four different persons were added as annexes to the file in the present case.

69      In that regard, three witnesses expressly state that they were aware of A’s abusive behaviour towards the applicant and linked the progressive deterioration in the applicant’s state of health to that behaviour.

70      One of them, D, asserts, in essence, that A’s behaviour was a source of tension as soon as she joined management. He states, inter alia, that she had a tendency ‘to get angry quickly when someone did not comply with her wishes’. He adds, more specifically, that she ‘made public, negative and disparaging remarks about [KF]’s work’.

71      It must be borne in mind that it is for the entity responsible for an administrative inquiry, in particular where that inquiry follows allegations of harassment, to investigate the files that are submitted to it in a proportionate manner. In this respect, it has broad discretion with regard to the conduct of the investigation and in particular with regard to assessing the quality and usefulness of the cooperation provided by the witnesses (see judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 77 and the case-law cited).

72      The Court finds, on reading the investigation report, that the Panel did not carry out such an assessment in respect of the witness evidence referred to in paragraphs 69 and 70 above.

73      Furthermore, negative comments addressed to a member of staff do not undermine his or her personality, dignity or 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, to that effect, judgment of 24 February 2010, Menghi v ENISA, F‑2/09, EU:F:2010:12, paragraph 110).

74      However, it is not apparent either from the report or from the explanations given by the EIB during the judicial proceedings that the Panel sought to establish whether such comments had indeed been made, or, if so, what precise terms had been used. In those circumstances, the Panel could not determine whether the public remarks which D claims were made about the applicant’s work were based on allegations that were unfair and lacking any connection with objective facts or whether they were objectively unfair to an impartial and reasonable observer, of normal sensitivity, within the meaning of the case-law cited in paragraph 38 above.

75      Secondly, the applicant claims that the evidence corroborates the statements of the witnesses referred to above, according to which A behaved in such a way as to undermine the applicant’s dignity.

76      In that regard, reference is made, in paragraphs 53 and 54 of the application, to negative feedback contained in A’s 2017 and 2018 annual appraisals and to witness evidence other than that provided by the applicant.

77      As regards A’s annual appraisals, it should be pointed out that they refer to relationship difficulties with certain members of staff. They therefore constituted material evidence which tended to prove her propensity to become angry, which, moreover, led the Panel itself to question her management style. They could therefore be taken into account as context that corroborated the various witness statements produced from which it was apparent that A had a tendency to become angry and sometimes aggressive.

78      In the second place, the applicant challenges the methodology used by the Panel to determine whether she was the victim of harassment, in so far as it weighed the evidence that A placed her under increased pressure and that A’s management style could end up intimidating staff and undermining their morale and motivation against the evidence relating to the applicant’s personality.

79      In that regard, it should be noted that the Panel was entitled, without making an error of assessment, to take into account the applicant’s behaviour in order to understand the adversarial nature of her relationship with A (see, to that effect, judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 106).

80      However, while the Panel was indeed justified in taking into account the applicant’s behaviour in order to determine whether the situation should be understood simply as an adversarial relationship between two members of the EIB or as conduct constituting harassment by A towards the applicant, it is clear that, in the present case, the Panel merely referred, in addition to A’s statements, to those of a witness.

81      It should be noted that the applicant disputes those allegations relating to her behaviour. However, the Panel did not examine whether those allegations were proved, plausible or apt to call into question the applicant’s claims that A’s behaviour constituted psychological harassment towards her. Moreover, it should be noted that there is nothing in the Panel’s assessment to support the finding in paragraph 54 of the report that the applicant’s behaviour was inappropriate.

82      In addition, it should be pointed out that, in view of the context described by A’s appraisal reports and certain witness statements, and since the evidence of at least one direct witness corroborated the applicant’s claim that A’s attitude towards her was abusive, the Panel also fails to explain why the mere fact that the applicant had a tendency to react emotionally meant that her various claims tended only to describe an interpersonal conflict.

83      In the light of all the foregoing, first, it must be noted that the Panel failed to establish the relevant facts which it was nevertheless required to examine in order to decide whether there was psychological harassment in the present case. In so doing, it failed inter alia to comply with the requirements arising from the principle of sound administration, as set out in paragraphs 39 and 45 above.

84      Secondly, the examination, in the report, of the applicant’s various claims and in particular of the material evidence and the witness statements relied on in support of those claims, fails, in several respects, to support the Panel’s conclusion that there was no psychological harassment.

 The complaints based on B’s conduct

85      The applicant submits that the Panel made an error of assessment by finding that five of the allegations she had raised could not be classified as acts of harassment committed by B towards her. In that regard, she again claims, in essence, that the Panel did not correctly establish the facts or examine the relevant evidence and witness statements relating to a number of those allegations and that, in those circumstances, it could not, therefore, correctly interpret the definition of psychological harassment in order to assess those allegations without making an error of assessment.

–       The evaluation of the level of the applicant’s performance

86      The applicant maintains, in essence, that the fact that the level of her performance was graded ‘below expectations’ under the heading ‘Organisational Commitment 3: Supports the organisation’ in her 2018 appraisal report constitutes an act of harassment committed by B against her. She submits that that evaluation was based on a particular incident which she disputes can be regarded as misconduct. She states that while she was on sick leave she had kept at home her work laptop, which contained data necessary for drawing up a report. She states that the raw data necessary for drawing up that report were, however, available on the EIB’s server.

87      The EIB contends that the applicant cannot now challenge her 2018 appraisal report. In addition, it states that, although being on sick leave exempts a member of staff from the obligation to go to the office to work, it does not mean that he or she is freed from all obligations. Thus, it asserts that taking official data home from work is likely to interfere with the continuity of work and that criticising the applicant for this in her appraisal report was therefore justified. In that regard, it submits that the argument that that incident did not cause the EIB any damage is neither relevant nor proved.

88      In the report, the Panel expressly found that the ‘below expectations’ grade in the applicant’s 2018 appraisal report related to the fact that while she was on sick leave she had taken home her computer, which contained data to be used for drawing up a report. A had considered this to constitute serious misconduct. Nevertheless, the Panel did not find that grade to be an act of harassment.

89      As a preliminary point, it should be borne in mind that marks and assessments, whether positive or negative, contained in a staff report cannot, as such, be regarded as evidence that the report was drawn up for the purpose of psychological harassment (see judgment of 16 September 2013, Faita v EESC, F‑92/11, EU:F:2013:130, paragraph 90 and the case-law cited).

90      It should also be noted that, for the reasons which are, in essence, set out in paragraph 51 above, the fact that the applicant did not challenge the legality of her 2018 appraisal report within the prescribed time limit does not mean that she cannot refer to that report in order to show that B’s behaviour towards her constituted harassment.

91      In the first place, it should be noted that, as stated in paragraph 88 above, the only reason for the grade at issue was that the applicant had taken her computer home while she was on sick leave and that data were therefore not available to other EIB staff members. Those particulars are not disputed by the parties.

92      In the second place, the applicant claims that the raw data remained available on the EIB’s server and that only worked data remained inaccessible.

93      In the report, the Panel noted that the raw data remained available on the EIB’s server during the applicant’s absence. However, it was not entitled simply to find that the evaluation at issue did not constitute harassment without seeking to establish precisely which data were inaccessible and the rules applicable to EIB staff members relating to the accessibility of their work on the EIB’s internal server. Consequently, it failed to comply with the requirements stemming from the principle of sound administration, as set out in paragraphs 39 and 45 above.

–       Being asked to work while on sick leave

94      The applicant claims that she was asked to work during her sick leave by email and by telephone and disputes the Panel’s finding that that did not constitute psychological harassment.

95      The EIB submits that B merely requested information that was in the applicant’s possession and that she should not have taken home. It states that the work to be carried out on the basis of that information was urgent. In addition, it maintains that B could not have known that that request was problematic, since he had not yet received a letter from the applicant’s doctor. In the rejoinder, the EIB states that being relieved of the obligation to go to the office because of illness does not mean that the member of staff concerned is freed from all obligations and that it should therefore be considered that he or she can be asked merely to produce a document. It adds, moreover, that, without further information, the applicant’s claim that the information on her laptop was the same as that on the EIB’s server does not seem to be substantiated, since the applicant herself distinguished between the raw data which were on that server and the data on which she claimed to have worked. In any event, according to the EIB, even assuming that the data were the same, it would have been far more inconvenient for a person replacing the applicant to look for the data on the EIB’s server.

96      In the report, the Panel stated that the following request had been made to the applicant by email and by telephone: ‘can you please finalise the report you were working on; it’s urgent and we need it’. It then stated that the applicant’s doctor had contacted the EIB to ask that she no longer be contacted by the EIB while she was on sick leave. In addition, the Panel pointed out that B explained that he did not know the length of her sick leave or the severity of her condition and that after receiving the letter from the applicant’s doctor he did not ask again. Furthermore, the Panel also considered that it was apparent from the file that it was in fact A who had asked for that information and that the applicant had responded that she was on sick leave and not allowed to work.

97      It is clear from case-law, which is applicable by analogy to EIB staff members, that sick leave provides an official with a valid reason for being absent and that, in view of his or her state of health, he or she is no longer required to work for the institution (see, to that effect, judgment of 29 March 2007, Verheyden v Commission, T‑368/04, EU:T:2007:102, paragraph 62).

98      In the present case, the Court observes at the outset that the summary contained in the report of the events linked to the various requests made to the applicant instructing her to send work or documents to the EIB while she was on sick leave is confused.

99      It is apparent from the file that at least two separate requests were made to her for that purpose.

100    A first request was made by B. In that regard, it should nevertheless be noted that the Panel does not explain whether it adopted the terms that had been used to make that request or whether the terms set out in paragraph 96 above are merely a summary of the situation as reported to the Panel by the applicant herself. The applicant replied to that request by email of 7 August 2018 in order to send a ‘modified final report’ which was intended to incorporate comments made at a meeting. In that email, she stated that she had been asked to send that report. On the same day, she sent another email to B with the original version of that report, again stating that she had been asked to send it. B acknowledged receipt, also by email.

101    The second request was sent to the applicant by A. By email of 14 September 2018, A asked the applicant to send her as quickly as possibly the data from 2017 on which she had worked and the 2017 report sent with the data from 2016. The following day, the applicant informed the EIB, by email, that she was on sick leave and that it was therefore inappropriate to contact her regarding work-related matters.

102    In the light of the summary in paragraphs 100 and 101 above, it should be noted that, while it is apparent from that summary that two different requests were made to the applicant at two different times, the report does not indicate whether the Panel distinguished between those two requests or whether it considered them together or separately. Furthermore, the nature of the work requested from the applicant and the terms in which those requests were sent to her are also not analysed in the report. It is apparent from the report only that the Panel did not find B’s behaviour to constitute an act of harassment, without further explanation. A’s behaviour on that occasion was not analysed.

103    In the light of the lack of clarity just described, it must be found that the Panel did not establish the relevant facts sufficiently rigorously to reach the conclusion that the various requests sent to the applicant while she was on sick leave did not constitute harassment.

–       The isolation and sidelining of the applicant after her sick leave

104    The applicant’s line of argument under the present complaint is based, in essence, on three separate arguments. In the first place, she claims that she was deprived of her managerial functions as Head of Unit on her return to work in [confidential] 2019. She adds that, although the EIB knew that she was unhappy with this situation, it did nothing to find an acceptable solution. In the second place, she complains that she was not authorised to have contact with her team and claims that witnesses attested to this. She adds that she was ordered to move to another office and that the work she was assigned occupied only a very small amount of her time. In the third place and lastly, she claims that the Panel did not properly analyse the evidence she submitted.

105    The EIB contends that the Panel was emphatic in rejecting this part of the applicant’s arguments, even though it was particularly attentive to it. It states that the period concerned was particularly short and submits that the applicant’s disagreement with the interpretation of the facts at issue, and in particular with the fact that the decision to assign her an individual office was taken in her best interest, illustrates her behavioural difficulties. Whereas that decision was intended to help her to return to work in a calm environment and under a part-time working arrangement, the applicant saw it as a hostile act. In addition, the EIB contends that the applicant had accepted that decision after a discussion with B and that several witnesses explained the purpose of the temporary measures adopted. Furthermore, the EIB argues that the evidence demonstrates that the version defended by the applicant is not credible. Moreover, it disputes the argument that it ordered the applicant not to have contact with her former team and to move to another office. It also rejects the argument that the applicant was deprived of her managerial functions and states that, in any event, she resumed those functions in [confidential] 2019. In the rejoinder, the EIB states that the organisation of the service is for the EIB, not the applicant or her doctor.

106    In the report, the Panel stated that a meeting had been organised between a witness, the applicant and B, in order to make arrangements for the applicant’s return to work and that it was in that context that it was decided that the applicant would work in the [confidential] service rather than as Head of Unit of [confidential], in particular in order to avoid placing her under working conditions that were too stressful. However, the Panel noted that, despite that clear plan, the applicant started to organise meetings with her team on the very afternoon of her return and that B had to intervene to stop this. The Panel found that, since B had promptly communicated with the applicant and the measures adopted had been taken on the recommendation of the EIB’s medical staff, those measures could not be regarded as acts of harassment, but, on the contrary, constituted good management of the situation. As regards isolating the applicant, the Panel did not find any evidence that she had been placed in an isolated office in order to sideline her. It found that that decision had been taken on the recommendation of occupational health experts.

107    The Panel also stated that the decision to redefine the applicant’s duties temporarily was taken jointly by B and a witness, in particular following the advice of the EIB’s personnel and medical services to avoid placing the applicant in a stressful situation. As regards the temporary allocation of a new office, it found that that decision had also been taken by B, who stated that he was following the advice of occupational health experts.

108    As regards the applicant’s situation on her return to work in [confidential] 2019, she claims, first, that she was deprived of her functions as Head of Unit and, secondly, that the EIB did nothing to find an acceptable solution to the problem, despite her dissatisfaction.

109    It should be pointed out that, in the report, the Panel explains that, despite the reintegration plan put in place to facilitate the applicant’s return to work, consisting inter alia in the temporary alteration of her duties, the applicant organised meetings with her team in connection with her duties as Head of Unit of [confidential]. Thus, according to the Panel, B intervened ordering her to refrain from holding such meetings and to move to an individual office in order to ensure compliance with what had been agreed for the implementation of that reintegration plan.

110    In that regard, in the first place, it should be noted that the Panel’s statement that the measures adopted by the EIB on the applicant’s return to work were good staff management practices rather than harassment is incomplete.

111    More specifically, the Panel did not assess the veracity of the applicant’s claims that she was no longer allowed to communicate with members of [confidential], of which she was temporarily no longer the head, even though D’s testimony supported those claims.

112    In the second place, as regards the applicant being allocated a new individual office, first, it should be pointed out that the assertion in the report that that decision had been taken, in particular, in order to follow the advice of occupational health experts is disputed by the applicant and is not supported by any material in the file. Moreover, the Panel did not identify the information on which it relied in order to make that assertion.

113    Secondly, the parties disagree as to how the events which led to the applicant being allocated an individual office unfolded. Thus, the EIB contends that the issue of moving the applicant to an individual office had been raised during a discussion between B and the applicant and that at the end of that discussion she agreed to move. By contrast, the applicant states that that decision had been imposed on her and that she was not consulted. Without even addressing that issue, the report concludes that allocating the applicant an individual office could not be regarded as an act of harassment.

114    In the light of all of the foregoing, it must be held that the Panel, first, did not seek to establish the relevant facts sufficiently diligently and, secondly, favoured the version of the events in dispute submitted by the two persons against whom the complaint had been brought over the version submitted by the applicant, without any apparent reason. Consequently, it failed to comply with the requirements stemming from the principle of sound administration, as referred to in paragraphs 39 and 45 above.

–       B’s authoritarian behaviour

115    According to the applicant, a witness reported that, during her absence, B had publicly criticised her work. That witness, moreover, pointed out the nastiness of the words used in that regard.

116    The EIB submits that B cannot be regarded as having acted in an authoritarian manner when the alleged facts occurred in the applicant’s absence. It states that the Panel’s assessment that B might have spoken critically but that this did not make him authoritarian was correct and that the Panel had preferred the evidence showing that B was a diligent and respectful person, which cannot be considered a manifest error.

117    In the report, the Panel referred first to the evidence of D, who referred to B’s criticisms against the applicant made in her absence. Next, it stated, first, that another witness had described B as a diligent, polite and respectful professional and, secondly, that it had experienced this aspect of B’s personality. Lastly, the Panel considered that, even if D had heard B speak disparagingly of the applicant’s work, that did not make B authoritarian and that it could not be concluded that B had harassed the applicant.

118    The applicant’s complaint, as set out in the application, is based on D’s witness statement, which she had provided to the Panel.

119    In that witness statement, it is stated, inter alia, as follows:

‘During [KF]’s absence, [E] went almost every day into [B]’s office, which was next to mine at the time, to complain virulently and publicly about [KF]’s work and [B] agreed with the [so-called] shortcomings … [B] and [E] repeatedly and publicly (we were in an open space) blamed [KF] and her work, which shocked me as neither had the competence nor the knowledge necessary to attack her professionalism so violently. … the nastiness in [B] and [E]’s words shocked me [e]specially as [KF] wasn’t present to defend herself.’

120    In the light of the foregoing, it must be held that, in the same way as for the witness statements referred to in paragraph 69 above, it is not apparent either from the report or from the explanations given by the EIB during the judicial proceedings that the Panel sought, in the light of the evidence adduced by the applicant, to establish whether the alleged public criticisms of her work had indeed been made and, if so, the precise terms that were used. Furthermore, and as found in paragraph 72 above, the Panel likewise failed to carry out any evaluation whatsoever of the witness statement provided by D.

121    Thus, the Panel merely referred to the allegations contained in the witness statement referred to in paragraph 118 above, without establishing either the veracity or the content of those allegations, and without making any assessment of that content.

122    The Panel nevertheless preferred the general assessments made in relation to B’s personality in other witness statements cited in the report over the applicant’s argument, which was based on direct witness evidence, that B repeatedly criticised her work in her absence. The indication that the Panel had found, during the hearing conducted as part of the administrative investigation, that B’s personality corresponded to the glowing testimonies referred to above does not in any way explain how such a finding could have any connection whatsoever with the incident reported by D.

123    Furthermore, it should be pointed that, while the applicant claims that B’s behaviour was authoritarian, the present complaint is rather that B made disparaging remarks about her in her absence, which formed part of the process of harassment which the applicant claims to have suffered.

124    In the light of the foregoing, it must be held that the Panel did not seek to establish the facts reported by D’s witness statement sufficiently diligently and that it therefore failed to comply with the requirements stemming from the principle of sound administration, as set out in paragraphs 39 and 45 above.

 The global assessment of the conduct of A and B

125    As is apparent from case-law and the relevant provisions of the Code of Conduct and the Dignity at Work Policy referred to in paragraphs 32 to 38 above, the existence of psychological harassment, first, entails that the acts complained of are repeated over a fairly long period and that they are analysed both in isolation and together. Secondly, it requires that those acts be capable of demeaning the self-esteem and self-confidence of the person at whom they were directed.

126    In addition, it has also been held that harassment may be committed, if not by an institution, at least by several persons, belonging to the same institution, who act in a coordinated manner or, at the very least, in the same way. It is, moreover, in that sense that Article 3.6.1 of the Code of Conduct provides that harassment may consist of hostile or tasteless remarks, attitudes or behaviour ‘by one or more members of staff’ of the EIB (judgment of 11 November 2014, De Nicola v EIB, F‑52/11, EU:F:2014:243, paragraph 182).

127    The Panel was therefore right to conduct a global assessment in the report of the various acts of A and B which the applicant alleged were such as to prove the existence of psychological harassment towards her.

128    Nevertheless, it follows from all of the foregoing that the Panel failed diligently to establish the facts in dispute and that it drew from them conclusions which they did not support.

129    Accordingly, the applicant’s third plea must be upheld and the contested decision must be annulled, without it being necessary to analyse the other pleas or to rule on the admissibility of the new plea raised at the hearing.

 The claim for damages

130    The applicant makes two claims for compensation, which it is appropriate to examine in turn.

131    As a preliminary point, it should be borne in mind that, in order for the administration to incur liability, a number of conditions must be satisfied as regards the unlawfulness of the conduct alleged against the institutions, the actual harm suffered and the existence of a causal link between the act and the damage alleged to have been suffered (judgment of 30 January 2020, BZ v Commission, T‑336/19, not published, EU:T:2020:21, paragraph 53).

 Compensation for non-material damage

132    The applicant claims that she suffered non-material damage as a result of repeated unfair treatment which caused her significant stress and desperation. She claims to have experienced a profound feeling of injustice and assesses that damage at EUR 10 000. At the hearing, the applicant stated that her claim was based on the manner in which the EIB had dealt with her complaint, and not on the psychological harassment of which she claims to have been the victim.

133    The EIB submits that, if the claim is to be interpreted as a claim for compensation for non-material damage resulting from the alleged harassment, it must be rejected because the conclusion that the applicant was not harassed is well founded. Furthermore, it submits that, if that claim is to be interpreted as seeking to remedy alleged wrongdoing on the part of the EIB, it is inadmissible, since the supposed fault has not been identified and no argument in support is offered.

134    As regards non-material damage, the annulment of an unlawful measure, such as the contested decision, constitutes in itself appropriate and, in principle, sufficient compensation for any non-material harm which that measure may have caused. That cannot, however, be the case where the applicant shows that he or she has sustained non-material damage that can be separated from the illegality on which the annulment is based and that cannot be compensated in full by that annulment (judgment of 30 January 2020, BZ v Commission, T‑336/19, not published, EU:T:2020:21, paragraph 54).

135    In the present case, it should be noted, as a preliminary point, that the applicant refers, as she stated at the hearing, to wrongdoing on the part of the EIB in the handling of her complaint, which she set out in her action. In that regard, it is apparent from that action that, as regards the handling of her complaint, first, the applicant claimed, in essence, that the Panel and the EIB failed to comply with their duties of sound administration and of care by failing to ensure that the facts were established sufficiently rigorously and by misinterpreting the definition of the concept of harassment. Secondly, she stated that the time taken to carry out the whole procedure relating to the handling of her complaint was excessive.

136    Taking into account the questionable way in which the complaint was investigated by the Panel, the annulment of the contested decision would not be capable of constituting, in itself, appropriate and sufficient compensation for the non-material damage suffered, resulting from the uncertainty and anxiety caused by the illegality of that decision (see, to that effect, judgment of 18 September 2012, Allgeier v FRA, F‑58/10, EU:F:2012:130, paragraph 85).

137    In the light of the foregoing, in the circumstances of the present case, the EIB must be ordered to pay the applicant damages assessed ex aequo et bono at EUR 3 000.

 Compensation for material damage

138    First, the applicant claims that her contract was renewed for a period of two years rather than converted into a contract of indefinite duration and that that decision formed part of A’s harassment towards her and was taken despite the request of her direct superior. In that regard, she contests any underperformance on which that decision was allegedly based and states that she never received any explanation for the decision. Secondly, the applicant submits that the decision of 14 April 2020 by which the EIB decided not to renew her contract is to be regarded as a continuation of the harassment of which she claims to have been the victim. Thus, she claims that her financial loss is the loss of remuneration from [confidential] 2020 until the date on which she would have reached pension age, being eight years after that date. She assesses that damage at approximately EUR 904 000.

139    The EIB disputes those arguments.

140    As regards, first, the applicant’s arguments that, according to her, her contract should have been converted into a contract of indefinite duration rather than extended for two years, the following should be noted.

141    In accordance with the principle of autonomy of remedies, a party may take action by means of a claim for compensation without being obliged by any provision of law to seek the annulment of the unlawful measure which causes him or her damage and, consequently, he or she may rely on the alleged illegality of the same measure if that measure has become final (see, to that effect, judgments of 7 October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph 61, and of 12 May 2016, Holistic Innovation Institute v Commission, T‑468/14, EU:T:2016:296, paragraph 46).

142    However, an exception has been made to the principle of autonomy of remedies where the action for damages is closely connected with the action for annulment. In that regard, the Court has held that, although a party may take action by means of a claim for compensation without being obliged by any provision of law to seek the annulment of the unlawful measure which caused him or her damage, he or she may not by those means circumvent the inadmissibility of an application which concerns the same instance of illegality and which has the same financial end in view (judgment of 28 May 1997, Burban v Parliament, T‑59/96, EU:T:1997:75, paragraph 26).

143    It follows that there is no autonomy between the actions where the action for damages is intended solely to compensate for damage resulting from the consequences of a decision, damage which would not have been suffered if, moreover, an action for annulment, brought in good time, had succeeded. A party who has failed to challenge the measures adversely affecting him or her by bringing an action for annulment in good time cannot make good that omission and, in a sense, procure further time for bringing proceedings by means of a claim for compensation (see, to that effect, judgment of 28 May 1997, Burban v Parliament, T‑59/96, EU:T:1997:75, paragraph 27).

144    Although the case-law referred to in paragraphs 142 and 143 above was developed in the context of actions under Article 270 TFEU and Articles 90 and 91 of the Staff Regulations, it is appropriate to apply that case-law, mutatis mutandis, to the present action in so far as it concerns an employment relationship between the applicant and a body of the European Union (see, to that effect, order of 17 December 2020, IM v EIB, T‑872/19, not published, EU:T:2020:634, paragraph 23).

145    It has previously been held in a case arising in similar circumstances to those of the present action that, if the applicant sought, by way of a claim for damages, to obtain a result which was identical to that which he or she would have obtained from the success of an action for annulment which the applicant failed to bring in good time, the action for damages had to be declared inadmissible (see, to that effect, order of 17 December 2020, IM v EIB, T‑872/19, not published, EU:T:2020:634, paragraph 24).

146    In the present case, the applicant seeks specifically to obtain compensation for the allegedly harmful consequences of the decision to extend her fixed-term contract rather than to convert it into a contract of indefinite duration, which she submits is unlawful and abusive, as is clear from paragraph 85 of the application.

147    Accordingly, the applicant’s argument that the decision of 1 November 2017 to extend her contract for two years was unlawful must be rejected as inadmissible.

148    As regards, in the second place, the argument based on the decision of 14 April 2020 not to extend the applicant’s contract, it must be held that, since that decision, which came after the contested decision, is separate from it, it cannot be regarded as demonstrating the material damage resulting from that decision.

149    The claim for compensation for the material damage allegedly suffered by the applicant must therefore be rejected.

 Costs

150    Under Article 134(3) of the Rules of Procedure, the parties are to bear their own costs where each party succeeds on some and fails on other heads. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing their own costs, pay a proportion of the costs of the other party.

151    In the present case, since the application for annulment of the contested decision has been upheld and the application for damages has been upheld in part, the Court decides, on an equitable assessment of the matter, that the EIB is to bear its own costs and to pay those incurred by the applicant.

On those grounds,

THE GENERAL COURT (First Chamber)

hereby:

1.      Annuls the decision of the President of the European Investment Bank (EIB) of 27 January 2020;

2.      Orders the EIB to pay KF the amount of EUR 3 000;

3.      Dismisses the action as to the remainder;

4.      Orders the EIB to bear its own costs and to pay those incurred by KF.

Delivered in open court in Luxembourg on 30 March 2022.

*      Language of the case: English.

1 Confidential data omitted.

© European Union
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