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

JUDGMENT OF THE GENERAL COURT (First Chamber)

2 February 2022 (*)

(Civil service – EIB staff – Dignity at Work Policy – Psychological harassment – Investigation procedure – Action for annulment – Final report of the investigation panel – Preparatory act – Inadmissibility – Decision rejecting the complaint – Act adversely affecting an official – Admissibility – Article 41 of the Charter of Fundamental Rights – Rights of the defence – Right to be heard – Obligation to state reasons – Liability)

In Case T‑536/20,

LU, represented by B. Maréchal, lawyer,

applicant,

v

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

defendant,

APPLICATION pursuant to Article 270 TFEU and to Article 50a(1) of the Statute of the Court of Justice of the European Union seeking, first, in essence, annulment of the final report issued by the Dignity at Work Panel on 13 May 2020 and of the decision of the President of the EIB of 26 May 2020 rejecting the harassment complaint lodged by the applicant and, second, compensation for the harm allegedly suffered by the applicant,

THE GENERAL COURT (First Chamber),

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

Registrar: E. Coulon,

gives the following

Judgment

 Background to the dispute

1        The applicant, LU, took up his duties at the European Investment Bank (EIB) on 16 October 2009 as a [confidential] (1) in the [confidential] Division.

2        On 16 June 2011, he was assigned to the [confidential] Directorate, which includes the [confidential] Directorate.

3        As a [confidential] in the [confidential] Directorate (the director of which was A), the applicant had B (Head of the [confidential] Division) as his direct supervisor until 15 April 2018, at which point B, while remaining a member of the [confidential], was replaced by C.

4        On 25 May 2016, the Appeals Committee of the EIB upheld the appeal lodged by the applicant contesting the refusal to promote him in his appraisal for 2014.

5        On 9 October 2017, the applicant lodged his first complaint with the EIB’s Dignity at Work Panel (‘the Investigation Panel’) relating to alleged instances of harassment of the applicant by his direct supervisor, B.

6        On 26 January 2018, the Investigation Panel finalised its report.

7        By letter of 31 January 2018, the President of the EIB notified the applicant that his complaint of psychological harassment had been rejected, although the director took note of the Investigation Panel’s recommendation addressed to the personnel directorate of the EIB that it was important to ensure that B’s successor was not influenced negatively against the applicant on account of the investigation procedure provided for by the EIB’s Dignity at Work Policy that the applicant had initiated in 2017.

8        On 22 May 2018, the applicant lodged a complaint with the Appeals Committee of the EIB contesting the overall appraisal of his performance in 2017, which had been sent to him on 22 March 2018. That committee issued its decision on 21 October 2019.

9        On 26 July 2018, the Office of the Chief Compliance Officer of the EIB decided to open a formal administrative inquiry against the applicant relating to illegal recordings of professional conversations, threatening behaviour and insubordination towards his supervisors, and false claims regarding his language knowledge. That inquiry led to the submission of a final report on 12 June 2019.

10      By email of 29 August 2018, the applicant lodged a second complaint with the Investigation Panel under the investigation procedure provided for by the EIB’s Dignity at Work Policy. That complaint was formalised by the filing of a memorandum on 18 September 2018.

11      In that new complaint, the applicant informed the EIB’s Director-General for Personnel that he wished to avail himself of that procedure in respect of events that had occurred from January 2018 onwards.

12      That complaint was made against the applicant’s former direct supervisor and former head of the [confidential] Division to which he belonged, B, against the director of [confidential], A, and against the applicant’s new direct supervisor, C.

13      The acts he complained of consisted, inter alia and in essence, in the setting of unachievable work objectives, the removal of projects from his portfolio with no objective justification, the insertion of defamatory assessments in his staff report, unjustified and personal criticism in front of his colleagues in respect of incidents for which he was not responsible, unjustified micromanagement by his supervisors – C in particular – such as to slow him down and interfere in his private life and, lastly, the setting of unnecessary tasks by his supervisors.

14      By email of 9 October 2018, the applicant submitted an additional list of acts, which he attributed to his supervisor and claimed constituted harassment, to the EIB’s Director-General for Personnel.

15      After various issues arose, meaning that the investigation had to be put on hold on more than one occasion, and after the applicant objected to one of the persons making up the Investigation Panel as originally constituted, the EIB appointed, on 8 October 2019, a new member of that panel to replace that person.

16      On 22 November 2019, the Investigation Panel received a second addendum to the applicant’s memorandum.

17      On 14 January 2020, the Investigation Panel heard the applicant and four witnesses.

18      On 26 January 2020, the Investigation Panel heard the three persons in respect of whom the complaint had been made by the applicant.

19      On 30 March 2020, the Investigation Panel’s draft report (‘the draft report’) was sent to the applicant and to the three persons in respect of whom the complaint had been made. On 21 April 2020, the applicant submitted his comments on that draft and sent it to the Investigation Panel.

20      The final report of the Investigation Panel (‘the Investigation Panel’s report’) was drawn up on 13 May 2020. It states that there is no evidence of harassment, finds the applicant’s second complaint to be malicious and abusive, and recommends that a disciplinary procedure be initiated against him.

21      On 26 May 2020, the President of the EIB sent the applicant the Investigation Panel’s report together with his decision to follow the recommendation of that panel and reject the applicant’s complaint (‘the contested decision’).

22      On 8 January 2021, the EIB notified the applicant that it was opening a disciplinary procedure against him on the basis of the facts set out in the final report of the Office of the Chief Compliance Officer and in the contested decision and that it was suspending him from his duties for the duration of that procedure.

 Procedure and forms of order sought

23      By application lodged at the Court Registry on 25 August 2020, the applicant brought the present action.

24      The defence was lodged on 4 January 2021, the reply was lodged on 10 March 2021 and the rejoinder was lodged on 26 April 2021.

25      The written part of the procedure was closed on 30 April 2021.

26      As the parties had not requested a hearing under Article 106(1) of the Rules of Procedure of the General Court, the Court (First Chamber), considering that it had sufficient information available to it from the material in the file, decided, pursuant to Article 106(3) of those rules, to rule on the action without an oral part of the procedure.

27      The applicant claims that the Court should:

–        primarily, annul the Investigation Panel’s report and the contested decision, as well as any disciplinary procedure based on that report and that decision;

–        in the alternative, amend the findings set out in the Investigation Panel’s report and the contested decision so as to remove any reference to, in particular, malicious conduct or fault on the part of the applicant or to any disciplinary procedure;

–        in any event, order the EIB to pay him:

–        EUR 25 000 in damages for the violation of his ‘physical and mental integrity’, for the infringement of his rights of freedom of thought and of expression and for the infringement of his rights to good administration, to an effective remedy and to a fair trial;

–        EUR 25 000 for the non-material harm he claims to have suffered;

–        EUR 200 by way of reimbursement for the medical costs which he was forced to incur and which were not reimbursed;

–        lastly, order the EIB to pay the costs of the present proceedings, set provisionally at EUR 15 000.

28      The EIB contends that the Court should:

–        dismiss the action in its entirety;

–        order the applicant to pay the costs.

 Law

 The Court’s jurisdiction to hear the claim for amendment of the Investigation Panel’s report and of the contested decision

29      The applicant claims that any reference to, in particular, malicious conduct or fault on his part or to any disciplinary procedure should be removed from the Investigation Panel’s report and the contested decision.

30      It must be borne in mind that it is settled case-law that, regarding judicial review, the Court does not have jurisdiction to issue directions to the administration. As regards the scope of that rule, it also extends to cases where the direction is to provide the applicant with specific information (see order of 25 March 2020, Lucaccioni v Commission, T‑507/19, not published, EU:T:2020:118, paragraph 60 and the case-law cited).

31      In the present case, the applicant’s claim that the findings set out in the Investigation Panel’s report and the contested decision should be amended by removing all the incidents and statements he considers inappropriate amounts to issuing a direction to the administration, which, according to the case-law cited in paragraph 30 above, falls outside the Court’s jurisdiction.

32      Having regard to the foregoing, that claim must be rejected for lack of jurisdiction.

 Admissibility

 Admissibility of the application

33      The EIB states that it entertains doubts as to the admissibility of the application, or at least certain parts thereof. It specifies that it has ascertained the parts of the applicant’s account affected by a lack of clarity in its examination of the merits of his claims.

34      In that regard, it must be noted that, in so far as the EIB sets out the parts of the application it claims are unclear and warrant a ruling of inadmissibility, it must be considered that it claims only that some of the pleas are inadmissible; a fact which justifies the objections it raises in that regard being examined in the context of the analysis of each of the pleas put forward by the applicant.

 The admissibility of the claim for annulment of the Investigation Panel’s report

35      The applicant seeks the annulment of the Investigation Panel’s report in so far as he submits that that panel incorrectly (i) failed to take into account the evidence on which he relied and (ii) made findings to his detriment.

36      It is settled case-law that the existence of an act adversely affecting an official is a necessary condition for any action brought by EIB staff to be admissible (see, to that effect, judgment of 7 February 2019, Arango Jaramillo and Others v EIB, T‑487/16, not published, EU:T:2019:66, paragraph 36 and the case-law cited).

37      Only acts producing binding legal effects likely directly and immediately to affect the interests of an applicant by bringing about a distinct change in his or her legal position as an official or staff member may be the subject of an action for annulment (see judgment of 12 May 2021, DF and DG v EIB, T‑387/19, not published, EU:T:2021:258, paragraph 17 and the case-law cited).

38      In the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, in principle, an act is open to review only if it definitively lays down the position of the institution upon the conclusion of that procedure and not if it is an intermediate measure intended to pave the way for the final decision (see order of 26 June 2018, Kerstens v Commission, T‑757/17, not published, EU:T:2018:391, paragraph 26 and the case-law cited).

39      Acts preparatory to a decision do not adversely affect officials and it is only when an action is brought against a decision adopted upon the conclusion of a procedure that an applicant may challenge the legality of earlier acts that are closely linked to that decision. Although some purely preparatory measures may adversely affect an official inasmuch as they may influence the content of a subsequent challengeable act, those measures cannot be the subject of a separate action and must be challenged in the context of an action brought against that act (order of 26 June 2018, Kerstens v Commission, T‑757/17, not published, EU:T:2018:391, paragraph 27).

40      In the present case, the Investigation Panel’s report contains merely a recommendation made to the President of the EIB and is therefore an intermediate measure. It does not prejudice the final position adopted by that person and cannot therefore be regarded as an act adversely affecting the applicant, as the contested decision alone has that effect.

41      Having regard to the foregoing, the claim for annulment of the Investigation Panel’s report must be rejected as inadmissible.

 The admissibility of the claim for annulment of any disciplinary procedure based on the Investigation Panel’s report and on the contested decision

42      It is settled case-law that only actions for annulment of an act in existence adversely affecting an applicant may be brought before the Court. An action for annulment cannot seek the speculative review of hypothetical acts which have not yet been adopted (see judgment of 5 October 2017, Ben Ali v Council, T‑149/15, not published, EU:T:2017:693, paragraph 59 and the case-law cited).

43      In the present case, it must be noted that, when the application was lodged, namely 25 August 2020, the applicant was not yet subject to any disciplinary procedure. It was only by the letter of 8 January 2021 to which the applicant refers in the reply that the EIB notified the applicant that a disciplinary procedure was being opened against him and that the decision had been made to suspend him until the end of that procedure.

44      Thus, in so far as the disciplinary procedure referred to by the applicant was opened after the application was lodged, his claim for annulment of any disciplinary procedure based on the Investigation Panel’s report and on the contested decision must be rejected as inadmissible.

 The claim for annulment of the contested decision

45      In support of his claim for annulment of the contested decision, the applicant raises, in essence, two pleas alleging, first, defects vitiating the contested decision and, second, defects vitiating the Investigation Panel’s report.

46      The first plea is divided into two parts.

47      By the first part of the first plea, the applicant alleges infringement of the rights of the defence. He asserts that he was not heard by the President of the EIB before the latter adopted the contested decision, in breach of Article 41(2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’). Referring to the judgment of 4 April 2019, OZ v EIB (C‑558/17 P, EU:C:2019:289), and specifically paragraph 59 thereof, the applicant states, in essence, that the witness statements were not communicated to him; an omission which adversely affected him.

48      By the second part of the first plea, the applicant argues that the President of the EIB, by merely approving the Investigation Panel’s report without providing any further explanation, failed to give reasons for the contested decision.

49      The EIB contends that both parts of the first plea should be rejected on the merits.

50      Regarding admissibility, while criticising the length of the applicant’s arguments in the reply, stating that it is ‘contrary to the purpose of the Reply, which is to respond to the Defence and thus merely to refine, if necessary, the arguments in the Application’ and ‘merely confirms the [EIB]’s criticisms of the Application and its lack of clarity’, the EIB, regarding the plea based on the right to be heard, raises an objection of inadmissibility in respect of the applicant’s two arguments relating to (i) the fact that ‘numerous elements of the observations and numerous items of evidence’ were not taken into account by the Investigation Panel and (ii) the fact that his request that the composition of the Investigation Panel be changed was not taken into account.

51      On the substance, regarding the first part of the first plea, the EIB contends that a prior hearing of the applicant by its President was unnecessary since, first, the President merely approved the findings of the Investigation Panel, which had already heard the applicant, and, second, the investigation procedure relating to harassment must be distinguished from that relating to disciplinary matters, which has its own specific requirements.

52      The EIB adds that the applicant had three opportunities to be heard, that is to say, first, when he lodged his complaint, next, when he was heard by the Investigation Panel and, lastly, when he submitted his observations on the draft report previously communicated to him. In the rejoinder, the EIB states that the applicant cannot complain that he did not receive a summary of the statements of the other witnesses and the persons in respect of whom the complaint was made, when the draft report contains a summary of those statements and the applicant was able effectively to submit observations on that draft.

53      In that connection and as regards admissibility, it must be noted that, as has been stated in paragraph 50 above, the EIB has raised an objection of inadmissibility in respect of only two arguments in relation to the right to be heard. There is no prohibition on submitting new arguments in the reply, unless they constitute in fact a new plea, which is not the case here. In addition, the EIB has not raised an objection of inadmissibility in respect of the applicant’s argument that his right to be heard has been infringed on account of the fact that the witness statements (or a summary thereof) were not disclosed to him; moreover, it replied to that argument in the rejoinder.

54      As regards the substance, it should be borne in mind, as a preliminary point, that the rights of the defence enshrined in Article 41 of the Charter include the procedural right of every person, provided for in paragraph 2(a) of that article, to be heard before any individual measure which would adversely affect him or her is taken.

55      The right to be heard, as protected by Article 41(2)(a) of the Charter, guarantees every person the possibility of making known, in a useful and effective manner, his or her point of view during the administrative procedure and before the adoption of any decision which may adversely affect his or her interests (judgment of 14 July 2021, AI v ECDC, T‑65/19, EU:C:2021:454, paragraph 122).

56      The Court of Justice has previously ruled, in a dispute relating to harassment, that the Investigation Panel, before forwarding its recommendations to the President of the EIB, and, in any event, the latter, before adopting a decision that would adversely affect an applicant, were required to respect that applicant’s right to be heard as a complainant (judgment of 4 April 2019, OZ v EIB, C‑558/17 P, EU:C:2019:289, paragraph 56).

57      As a complainant, an applicant is thus entitled, in order to be able effectively to submit his or her observations, to disclosure of, at the very least, a summary of the statements made by the person accused of harassment and the various witnesses heard, in so far as those statements have been used by the Investigation Panel in its report in order to make recommendations to the President of the institution in question and in so far as the President of that institution has based his or her decision on those statements, and such a summary must be disclosed in line with, if necessary, the principle of confidentiality (see, to that effect, judgment of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraph 60 and the case-law cited).

58      In order to ensure that witness statements remain confidential and that the objectives of such confidentiality are respected, while ensuring that an applicant is properly heard before a decision adversely affecting him or her is adopted, certain techniques may be used, such as anonymisation, or even disclosure of the substance of the witness statements in the form of a summary, or the redaction of some of the content of those statements (see, to that effect, judgment of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraph 66 and the case-law cited).

59      It that regard, it must be emphasised that, contrary to the EIB’s assertions and in contrast to, in particular, a summary of all the statements made by a witness, a mere excerpt of a witness statement, as is the case here as regards the excerpts set out in the Investigation Panel’s report, does not make it possible for an applicant to be aware of all of the witness statements considered or of the context in which the incidents in respect of which those statements were made were reported, with the result that those excerpts are not sufficient to allow him or her effectively to submit his or her observations.

60      In the present case, it is apparent from paragraphs 28, 34, 49, 57, 61, 105, 106 and 113 of the draft report and the Investigation Panel’s report, which the President of the EIB used as the basis for his decision to reject the complaint, that their findings are based on statements made by the persons accused of harassment and by other witnesses, from which it could be seen, inter alia, that there was always the possibility to draft study reports on French-speaking countries in English, that the applicant resented C for the promotions she had received since joining the [confidential] Division, that he could be very aggressive physically and verbally, and that C, who was not a ‘guided missile’ sent by her supervisors, was affected by the situation; a fact which led her to consult the EIB’s medical service.

61      Thus, in so far as the applicant did not receive, at the very least, an anonymised summary of the statements made by witnesses and by the persons accused of harassment, it must be held that he was not put in a position effectively to submit his observations on the content of those statements before the decision adversely affecting him was taken. Such irregularity inevitably affected both the Investigation Panel’s report and the contested decision in so far as, if the applicant had been given the opportunity to be properly heard, he might have persuaded that panel and even the President of the EIB that a different assessment of the facts and of the various contextual factors, which were decisive in that decision, was possible and that a different weight should be applied to them (see, to that effect, judgment of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraph 73).

62      It follows that the contested decision must be annulled, without there being any need to examine the second part of the first plea or the second plea.

 The claims for compensation

63      Regarding the compensation for the harm the applicant claims to have suffered, it must be noted that he merely refers to a list of infringements of rights and the existence of non-material and material harm, without providing any further explanation or referring to any evidence.

64      In that regard, it must be observed, inter alia, that although the applicant relies on medical certificates placing him on sick leave and stating that he is temporarily unable to work, the fact remains that he does not explain how those items of evidence make it possible to establish a causal link between the misconduct he attributes to the EIB and the harm he claims to have suffered.

65      Thus, in addition to the fact that it is impossible for the Court to determine whether the harm claimed can be separated from the unlawfulness on which the annulment of the contested decision is based, it is clear that the applicant has not provided enough evidence in support of his claims for compensation to enable those claims to be regarded as admissible.

66      Accordingly, all of the applicant’s claims for compensation must be dismissed as inadmissible on the ground that they do not meet the requirements of Article 76(d) of the Rules of Procedure.

 Costs

67      The applicant claims that the EIB should pay the costs of the present proceedings, set provisionally at EUR 15 000.

68      However, it should be borne in mind that, in the decision ending the proceedings, the Court determines exclusively how the costs are to be allocated between the parties, without ruling on the amount of the costs. In the event of a dispute, the amount of the recoverable costs may be the subject of a separate action, governed by Article 170 of the Rules of Procedure, distinct from the decision on the allocation of the costs. Thus, taxation of costs may only take place following the judgment or the order ending the proceedings (see, to that effect, judgment of 6 February 2019, Karp v Parliament, T‑580/17, not published, EU:T:2019:62, paragraph 100).

69      The applicant’s claim that the costs of the present proceedings should be set provisionally at EUR 15 000 must therefore be rejected.

70      The fact remains that the applicant claims that the EIB should be ordered to pay the costs.

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

72      Since the EIB has been largely unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought 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 26 May 2020 rejecting the harassment complaint made by LU;

2.      Dismisses the action as to the remainder;

3.      Orders the EIB to pay the costs.

Delivered in open court in Luxembourg on 2 February 2022.

*      Language of the case: English.

1 Confidential data omitted.

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