JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Third Chamber)
17 September 2014 ( *1 )
‛Civil service — Members of the temporary staff — Auxiliary conference interpreters (ACIs) — Article 90 of the CEOS — Psychological harassment — Article 12a of the Staff Regulations — Internal rules for the Advisory Committee on Harassment and its Prevention at the Workplace — Confidentiality of the proceedings of that committee — Manifest errors of assessment’
In Case F‑12/13,
ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,
CQ, former member of the temporary staff of the European Parliament, residing in Brussels (Belgium), represented by C. Bernard-Glanz, lawyer,
applicant,
v
European Parliament, represented by M. Dean and E. Taneva, acting as Agents,
defendant,
THE CIVIL SERVICE TRIBUNAL
(Third Chamber)
composed of S. Van Raepenbusch, President, E. Perillo and J. Svenningsen (Rapporteur), Judges,
Registrar: X. Lopez Bancalari, Administrator,
having regard to the written procedure and further to the hearing on 14 May 2014,
gives the following
Judgment
1
By application lodged at the Registry of the Tribunal on 5 February 2013, CQ seeks annulment of the decision of 8 May 2012 by which the authority empowered to conclude contracts of employment of the European Parliament (‘the AECC’) found, in accordance with the opinion delivered by its Advisory Committee on Harassment and its Prevention at the Workplace (‘the Committee on Harassment’ or ‘the Committee’), that the applicant had not, while working as a member of the temporary staff, suffered psychological harassment on the part of her Head of Unit.
Legal context
The Staff Regulations
2
Article 12a(3) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), in the version applicable to the dispute, provides:
‘“Psychological harassment” means any improper conduct that takes place over a period, is repetitive or systematic and involves physical behaviour, spoken or written language, gestures or other acts that are intentional and that may undermine the personality, dignity or physical or psychological integrity of any person.’
The Conditions of Employment of Other Servants of the European Union
3
The first sentence of the first paragraph of Article 11 of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), in the version applicable to the dispute, provides, as regards members of the temporary staff, that ‘[t]he provisions of Articles 11 to 26 of the Staff Regulations, concerning the rights and obligations of officials, shall apply by analogy’.
4
Article 81 of the CEOS, which concerns contract staff, provides that Article 11 of the CEOS applies by analogy to that staff.
5
Article 3a of the CEOS defines the contract staff who are to be regarded as ‘contract staff for auxiliary tasks’ for the purposes of the CEOS.
6
The first paragraph of Article 90 of the CEOS, included in Chapter 5 on Special provisions for members of the contract staff for auxiliary tasks referred to in Article 3b of the CEOS, provides:
‘By way of derogation from the provision of this title, [auxiliary] conference interpreters engaged by the … Parliament or engaged by the [European] Commission on behalf of the … institutions and bodies [of the Union] shall be subject to the conditions laid down in the Agreement of 28 July 1999 [on working conditions and the pecuniary regime for auxiliary conference interpreters recruited by the Institutions of the European Union] between the … Parliament, the Commission and the Court of Justice [of the European Union], on behalf of the institutions, on the one hand, and the associations representing the profession, on the other.’
The Agreement of 28 July 1999
7
Article 1 of the Agreement of 28 July 1999 on working conditions and the pecuniary regime for auxiliary conference interpreters recruited by the Institutions of the European Union (‘the Agreement of 28 July 1999’) provides:
‘This Agreement shall apply to [auxiliary conference interpreters], wherever they are assigned, recruited by the … Parliament …, on [its] own account or on behalf of the other institutions and bodies of the European Union …
Recruitment shall be subject to the conditions laid down in the rules relating to [auxiliary conference interpreters] applicable to the institution where they are providing their services.
…’
8
Article 23 of the Agreement of 28 July 1999, entitled ‘Appeals’, provides:
‘Pursuant to Article 117 … of the [CEOS], individual disputes shall be referred to the appeal channels provided for in Title VII of the Staff Regulations.’
The internal rules for the Advisory Committee on Harassment
9
The Parliament adopted, on 21 February 2006, a document entitled ‘Internal rules for the Advisory Committee on Harassment … (Article 12a of the Staff Regulations)’ (‘the internal rules’). The first paragraph of Article 4 of the internal rules reproduces verbatim the definition ‘psychological harassment’ set out in Article 12a(3) of the Staff Regulations.
10
Under Article 7 of the internal rules:
‘The Committee shall work with complete autonomy, independence and confidentiality. Its deliberations shall be secret. The Committee must not, unless its members unanimously decide otherwise, forward any document, or provide any information, to third parties concerning cases with which it is dealing.’
11
Article 10 of the internal rules reads as follows:
‘The Committee shall hear the staff member and, possibly, other staff members concerned and is authorised, where appropriate, to contact the various levels of the hierarchy to advise them of the existence of a problem.
The Committee shall also ensure that a staff member against whom a complaint of harassment has been made is heard and has an opportunity to put his/her case. Exceptions may be made to this rule if the Committee considers it justified in the interests of one or other of the parties.’
Background to the dispute
General background
12
From 1 September 2005 to 31 August 2011, the applicant, as a member of the temporary staff, worked as a conference interpreter in the Czech interpretation unit of the Directorate for Interpretation of the Directorate-General (DG) Interpretation and Conferences of the Parliament (‘the unit’ or ‘the Czech unit’).
13
Since 1 September 2011, she has worked quite regularly as an auxiliary conference interpreter (‘ACI’), as a member of the contract staff for auxiliary tasks referred to in the first paragraph of Article 90 of the CEOS for the Czech unit whose head, since 17 May 2010, has been Ms H. (‘the Head of Unit’).
14
In July 2011 the applicant, believing that she had suffered psychological harassment on the part of her Head of Unit from May of that year, when she was still a member of the temporary staff, sought an interview with the Chairman of the Committee on Harassment. That request was accepted and the date of the interview was set for 9 August 2011.
15
Since the applicant had been informed, on 13 July 2011, that the Director of the Directorate for Interpretation (‘the Director’) intended to convene three members of the unit in mid-August, she notified the Chairman of the Committee that she would prefer their interview to be deferred until after the meeting with the Director. The Chairman of the Committee accepted that request.
16
On 8 September 2011, the applicant was heard for the first time before the Committee on Harassment. After the hearing, she confirmed, in an email of the same date sent to the Chairman of that Committee, that she now wished to formally submit a complaint of harassment.
17
On 5 October 2011, the Committee on Harassment first of all heard the Head of Unit and a colleague from the unit. Then, on 25 October 2011, it heard the Director and another colleague from the unit. Furthermore, on 28 November 2011, the Committee on Harassment heard the Head of Unit a second time ‘at her request, in order to enable her to provide additional information’. Lastly, on 13 December 2011, the Committee on Harassment heard four other interpreters assigned to the unit and a member of the Interpreter’s Delegation.
18
On 20 December 2011, following those various interviews, the Committee on Harassment delivered an opinion (‘the Committee’s opinion’) and sent it to the Secretary-General of the Parliament. That opinion gave an account, first, of an incident linked to the preparation of ‘questions to the management’, in the following terms:
‘[–]
a conflict arose between [the applicant] and [the Head of Unit] following the preparation …, in May 2011, of a list of questions [of the unit] to be put at a meeting with management [initially scheduled for 13 May 2011]. The preparation of the questions had been coordinated by [the applicant], who had provided the actual drafting of the questions; the list of questions, forwarded to management as they stood by [the Head of Unit], … prompted the [D]irector to send an email criticising in very direct and undiplomatic terms their poor quality (as being incorrect or that answers to them could readily be found on the [Directorate-General’s] Intranet site); this reply coincided with the cancellation of the meeting with management;
[–]
[the applicant], who says that she drafted the questions as an act of good will, feels that she was unfairly targeted and exposed unnecessarily to criticism from management; instead of protecting her, [the Head of Unit] blamed her for the problem which had arisen;
[–]
[the Head of Unit] reportedly severely criticised [the applicant] for her role in drafting the list of questions, a matter which was then addressed at a number of unit meetings, giving rise to repeated arguments among members of the unit;
[–]
certain members of the unit … supported [the applicant], and criticised the substance of the minutes of the unit meeting; this gave rise to arguments lasting several months concerning the minutes themselves and the procedure for drafting them;
…’
19
Secondly, the Committee on Harassment observed, inter alia, in its opinion that ‘most of the persons interviewed stated that relations between [the applicant] and [the Head of Unit] were good, or even very good, prior to the incident in May [following the questions to the management]’. Some persons ‘praised [the Head of Unit’s] management style …; they suggested that [the Head of Unit] had not been accepted as [Head of Unit] by a number of colleagues who … [would] not accept her appointment as Head of Unit …’. In contrast, other members of the booth criticised ‘[the Head of Unit’s] inflexible approach to implementing instructions issued by management and the pressure which she allegedly exerted on certain colleagues’.
20
Following its deliberations, the Committee on Harassment concluded as follows:
‘[–]
it appears there are some management difficulties and difficulties in handling of conflicts in [a] context of deterioration of trust and [of] the relations between the colleagues concerned;
[–]
on some occasions there may have been a lack of tact by the Head of Unit when applying certain rules or some reactions of the hierarchy;
[–]
this was used by some members of the [unit] to put into question the authority of the Head of Unit;
[–]
however, it cannot be considered that there has been harassment on the part of the Head of Unit’.
21
By decision of 8 May 2012, the AECC rejected the applicant’s complaint of harassment by describing, in particular, certain matters examined in the Committee’s opinion as ‘a lack of tact by the Head of Unit when applying certain rules or some reactions of the hierarchy’ (‘the contested decision’).
22
On 6 August 2012, the applicant brought a complaint against the contested decision in which she describes, in essence, seven sets of facts which, in her view, constitute the alleged harassment.
23
By decision of 29 October 2012, of which the applicant was notified on 31 October 2012, the Parliament rejected the complaint submitted against the contested decision (‘the decision rejecting the complaint’).
The events at issue
Facts relating to the ‘questions to the management’
24
On 15 April and 4 May 2011, the Head of Unit invited the interpreters in the unit to prepare questions for a meeting with the senior management of interpretation scheduled for 13 May 2011. In that regard, the Head of Unit sent, on 6 May 2011, the following SMS to the applicant: ‘You can put the questions together on behalf of the booth, you can send them by email via me or put them in an envelope on my desk. I will hand them over to [the Director] … You have the right to ask and also say our (sic) opinion.’
25
In order to identify the questions to put to the senior management, on 9 May 2011 the applicant took the initiative of starting an open email conversation with her colleagues in the unit, including the Head of Unit. In that email, she explained that the meeting with the management would take place in the presence of the Hungarian and Romanian units also and that, in that regard, the Czech unit had ‘suggested that it would be a good idea to submit the questions in advance … so that we avoid any unnecessary tension at the meeting itself’.
26
On the morning of 11 May 2011, the applicant sent an email to her colleagues in the Czech unit, including the Head of Unit, informing them of the existence of a document containing questions that the Hungarian unit wanted to table also in the name of the Czech and Romanian units. At 18.29 the applicant sent an email to the Head of Unit to inform her that she had agreed with the Hungarian booth that the Czech booth would submit its questions separately, that ‘[she had] drafted a letter [that another colleague had] promised that she would take a look at’ and that ‘[a]s soon as [that colleague got back to her, the applicant would] send it to [the Head of Unit] and the others’. The applicant added in that email that, ‘[if the Head of Unit] had the feeling that there was something inappropriate[, to please let her] know first [since she did] not want to provoke or insult anyone’ and she stated that she ‘hope[d] that the other colleagues from the booth [would] not get upset’.
27
Finally, on 11 May 2011 at 22.45, the applicant sent an email to the Head of Unit and to her unit colleagues with the following request to the Head of Unit: ‘Could you please forward this letter as questions on behalf of the Czech booth for the Friday meeting? Thanks a lot, I hope I did not forget anything that has been discussed …’. The questions then followed, set out under eight headings.
28
On 12 May 2011, the Head of Unit, at 8.16, replied to that message: ‘[w]ith pleasure, they have already asked about them’, and sent the proposed questions to the senior management.
29
On the same day, on 12 May 2011, at around 11.30 according to the Parliament, the Head of Unit allegedly asked the applicant to come to her office. On that occasion, the Head of Unit stated to the applicant that the questions contained incorrect information. The Head of Unit, it is claimed, orally communicated to her the content of the email that she had received from the Director, in particular with regard to the fact that the latter felt the level of the questions was ‘low’ and that he was surprised that they could reflect matters of concern to the staff of the unit as a whole. Furthermore, also according to the Parliament, the applicant and the Head of Unit agreed at that meeting that the Head of Unit would send an individual email to the members of the unit to ask if they were in agreement with the questions, to ascertain whether they did indeed reflect the concerns of the unit. At 12.16, the applicant received an individual email from the Head of Unit worded as follows: ‘… Questions on behalf of the [Czech] booth staff interpreters were prepared for tomorrow’s meeting with the management. Did you know about them and do they also fully reflect your opinion? …’
30
While not disputing that she had received that individual email, the applicant claims, on the other hand, that the Head of Unit only invited her at around 12.20 on 12 May 2011, at a point when she had not yet had time to read that email. The Head of Unit allegedly started the meeting with the question that she had put in the individual email sent at 12.16 and informed the applicant that she had sent a similar individual email to all her colleagues of the unit. The applicant claims that the Head of Unit had already stated that she had ‘identified’ the authors of the various questions before the applicant had time to confirm whether she was still in agreement with the questions prepared for the management. On that occasion, the Head of Unit allegedly reprimanded the applicant. Later, the Head of Unit allegedly let her read an email from the Director in which the latter had written, inter alia, that he could not believe that the questions reflected the opinion of the entire unit and that he therefore wanted to know who was behind them. The applicant then allegedly told the Head of Unit that she considered the reaction of the Director to be exaggerated since it was the senior management of interpretation itself that had asked the unit to prepare questions for their meeting of 23 May 2011. The Head of Unit allegedly shouted at the applicant that the Director was right.
31
In the evening of 12 May 2011, according to the Parliament, the Head of Unit sent an SMS to the applicant to confirm that she wanted to avoid any misunderstanding and that no-one was seeking to know who was the author of the questions for the management. According to the applicant, the only SMS that she received from the Head of Unit in the evening of 12 May was that in which the Head of Unit announced that the meeting with the hierarchy was cancelled. On 13 May 2011, according to the applicant, during a telephone call, her Head of Unit scolded her for incompetence and threatened her.
Facts relating to the meeting of the unit of 23 May 2011 and the adoption of the minutes of that meeting
32
During a meeting of the unit of 23 May 2011 (‘the meeting of 23 May 2011’), the applicant’s colleagues, according to the applicant, asked the Head of Unit, inter alia, why she had sent them the individual email of 12 May 2011. According to the Parliament, during that meeting, the Head of Unit, after stating that the questions to the management ‘did not reflect the reality in the [unit]’, noted that those questions were not entirely consistent with the relevant rules and instructions.
33
The applicant asked the Head of Unit to read the Director’s email, referred to in paragraph 30 of the present judgment, but she confined herself to summarising it. Ms M. and Ms V., two of the applicant’s colleagues who had attended the meeting on 23 May 2011, claimed that, during the meeting, the Head of Unit had treated the applicant in an inappropriate manner. During the meeting, the Head of Unit sought to reassure the colleagues that the authors of the questions for the management would remain anonymous. She proposed that the minutes of the meeting of 23 May 2011, as far as they related to the questions for the management, would contain only the conclusion reached and not the details of the discussion, which proposal, it is claimed, was accepted by all those present.
34
At a meeting held on 24 May 2011, according to the applicant, the Head of Unit reprimanded her again.
35
In that context, a delegation of interpreters, in this case the delegation of staff interpreters (DELINT — Staff Interpreters’ Delegation), at its meeting held on 8 June 2011 in Strasbourg (France), noted, with concern, the reaction of the Parliament’s senior management of interpretation to the questions for the management proposed by the Czech unit and the subsequent pressure exerted by the Head of Unit on the members of her unit.
36
On 22 June 2011, the minutes of the meeting of 23 May 2011 were circulated. This was followed by an exchange of views. By email of 4 July 2011, the applicant and three of her colleagues in the unit proposed amendments to the minutes.
37
On 6 July 2011, the Head of Unit informed the applicant that she was not allowed to send personal emails to colleagues of the unit because some of those colleagues had told her that they did not want to receive emails from the applicant anymore.
38
On 11 July 2011, the Head of Unit indicated that she could not accept the proposed amendments and, presenting, on that occasion, the final version of the minutes of the meeting of 23 May 2011, she noted that, in general, the final decision on the corrections and comments to be included in the minutes of the unit meetings rested with her.
39
On 12 July 2011, the applicant asked the Head of Unit by email to indicate the source of the rule that she relied on to claim that it fell to her, as Head of Unit, to make the final decision on the corrections and comments to be included in the minutes of the unit meetings.
40
On 18 August 2011, a meeting was held in the presence of the applicant and three of her colleagues and the Director. At that meeting, the subject of the minutes of the meeting of 23 May 2011 was discussed.
41
On 13 September 2011, the Head of Unit, following a consultation with the Director, sent an email to all staff of the unit setting out the general principles governing the taking of minutes of meetings of the unit. Subsequently, on the basis of those general principles, the applicant, who had in the meantime become an ACI, asked the Head of Unit to attach to the minutes of the meeting of 23 May 2011 the comments drafted by her colleagues and herself on 4 July 2011. The Head of Unit refused that request on 24 October 2011. On the same day, in an email addressed to the Head of Unit and to all of her colleagues of the unit, the applicant replied again.
42
On 31 October 2011, the Head of Unit sent an email to the applicant, with the director responsible for the recruitment of ACIs (‘the ACI Director’) in copy. In that email the Head of Unit informed the applicant that she had not appreciated her conduct and that she regretted that the applicant had refused to stop her correspondence relating to the minutes of the meeting of 23 May 2011.
Facts relating to approval of annual leave and using up remaining annual leave before the end of the applicant’s contract as a member of the temporary staff
43
On 11 May 2011, the applicant made two applications for annual leave, the first for the period from 13 to 16 June 2011, the second for 13 July 2011. As she had received approval for her second application, but had no response regarding the application concerning the month of June, on 25 May 2011 the applicant asked the Head of Unit to approve that application. Without providing any explanation, the Head of Unit informed her, on the same day, that the leave in June had been approved.
44
In a new application, submitted the following day, 26 May 2011, the applicant requested further leave for 30 June and 1 July 2011.
45
On 15 June 2011, at a meeting of the unit, the Head of Unit pointed out that applications for annual leave should be made at least five working days before the beginning of the requested leave. It is apparent from the minutes of that meeting that the Head of Unit explained the various procedures to be followed when applying for annual leave.
46
On 16 June 2011, while deploring that she did ‘not know how long [she would] have to wait to get [her] annual leave [for 30 June and 1 July 2001] approved’, the applicant made an inquiry, by email sent to the Head of Unit, about her application for leave submitted on 26 May 2011. The Head of Unit, on returning from a mission, informed her, in an email of 20 June 2011, that the leave in question had already been approved. In that email, the Head of Unit wrote, inter alia, that ‘Since [the month of] May[,] you have submitted several applications for annual leave. When in two cases they were not immediately approved, you submitted a written complaint [to know] how long you still [had] to wait’. By email in reply on the same day, 20 June 2011, the applicant explained to the Head of Unit why her email of 25 May 2011 should not be considered a ‘complaint’, but a ‘request’.
47
On 1 July 2011, the Head of Unit informed the applicant that she still had one day of leave and that she should take that before the end of her contract as a member of the temporary staff, namely 31 August 2011. On 17 August 2011, this time in English, the Head of Unit reminded the applicant that she should take her annual leave before the end of her contract as a member of the temporary staff.
48
In an email of 22 August 2011, the Head of Unit, inter alia, thanked the applicant for having cooperated in using up the remainder of her annual leave before the end of her contract as a member of the temporary staff. The applicant replied to the Head of Unit on the same day, stating that she interpreted her email as a criticism, describing it as ‘rather misleading’, and considered that the Head of Unit had insinuated that the applicant had not listened to her guidance provided at the meeting of 15 June 2011. In a reply sent on 23 August 2011, the Head of Unit, after providing an explanation and regretting that her previous email could have been ‘misleading’, asked the applicant to ‘read [her emails] carefully’ so that ‘similar misunderstandings’ could be avoided.
Facts relating to the translation of a medical report concerning a Member of the European Parliament (April and May 2011)
49
In mid-April 2011, the Head of Unit allegedly requested the applicant to translate a medical report concerning a Member of the European Parliament (MEP) on the personal behalf of that MEP. As she believed she was not allowed to perform work other than conference interpreting, the applicant states that she first opposed the request before eventually accepting it, as she felt obliged to do so. The applicant, it is claimed, finished the translation on 1 May 2011 and gave it in an envelope to the Head of Unit on 2 May 2011. It is in that context that the Head of Unit, before she went on holiday on 31 May 2011 and under the pretext of handing over ‘some tokens of appreciations (sic) left for her by the MEP’s assistant’, called the applicant to her office. During that meeting, the Head of Unit allegedly reprimanded her, scolding her again for what she had done regarding the questions to the management. Furthermore, according to the applicant, the Head of Unit denied, on that occasion, having instructed the applicant to translate a medical report of that nature.
Facts relating to the training working party and information concerning self-study half-days (May and June 2011)
50
On 16 May 2011, in an email entitled ‘handover of work in the training group’, the applicant wrote the following to the Head of Unit: ‘You wrote to me this afternoon that it would be best if I went to the working group meeting [on training in the morning of 23 May 2011] and the one on 11 July [2011], which I naturally plan on doing. …’
51
At the meeting on 23 May 2011, the applicant, it is claimed, reported to the unit that, during the morning meeting of the training working party, the possibility of discontinuing two half-days for self-study had been raised. As that announcement caused some concern among the participants at the meeting of 23 May 2011, the Head of Unit, it is claimed, asked the applicant to check that information. It is apparent from the minutes of the meeting of 23 May 2011 that ‘[the applicant would] send out information [to the unit] about what [had been] discussed regarding turquoise weeks at the [training working party meeting in the morning of 23 May]’. In that regard, in an email of 30 May 2011, the applicant apologised to her colleagues for having told them, with regard to the two self-study half-days, that ‘it was uncertain whether or not they would be repeated’.
52
According to the applicant, the Head of Unit stated, on 31 May 2011, that ‘the applicant did not understand’ and that the ‘minutes’, that is, the applicant’s email of 30 May, ‘were a misinterpretation of the facts’ regarding the discontinuance of self-study half-days, which the applicant found belittling and hurtful.
53
Furthermore, believing that it had been agreed with the Head of Unit that the meeting held by the training working party on the morning of 23 May 2011 would be the last meeting of the working party in which she would participate, the applicant felt ‘punished for her involvement in [the questions to the management incident]’ since, subsequently, the Head of Unit asked her to attend the working party meeting on 11 July 2011.
Facts relating to the language course absence
54
The applicant was initially registered on an upper intermediate Dutch course for the year 2010/2011. As the applicant felt that the level of that course was rather advanced for her, on 7 October 2010 she asked the person responsible for language courses if she could join the lower intermediate group. The person responsible for language courses explained to her that there was no problem in making such a change, but that an absence from the Dutch course on the grounds of attending exercises connected to the French course, which the applicant was attending elsewhere, would not be accepted as a valid excuse, so that the applicant would have to choose between French and Dutch. The applicant then confirmed to the person responsible, on 8 October 2010, that she would attend the French exercises and that she would try to join the Dutch course later in the year. The person responsible then forwarded that correspondence to another person asking him to de-register the applicant from the ‘specific course’ for the reasons set out in that correspondence.
55
It is apparent from the attendance sheets for the 26 classes of upper intermediate Dutch, organised during the period from October 2010 to June 2011, that the applicant only signed those sheets twice, namely on 1 October 2010 and 7 January 2011. Then, from 7 January to 24 June 2011, it is claimed that she attended all of the Dutch classes at the lower intermediate level.
56
In an email of 24 January 2011, the applicant explained to the Head of Unit why she had not been able to attend the Dutch course that she was registered for. She also pointed out that her participation in the French course was not necessarily referred to in the ‘Pericles’ software even though she had attended, every Monday and Friday, the French exercises and had not followed the Dutch course at all. She also asked the Head of Unit to excuse the fact that it could appear as if she had followed arbitrarily the course that she wanted.
57
During the month of January 2011, the Head of Unit was informed by the ‘Training’ unit that the applicant was not attending the Dutch course that she was registered for. On 26 January 2011, the ‘Training’ Head of Unit contacted the applicant directly to discuss the matter of the Dutch course.
58
On 8 June 2011, the Head of Unit, it is claimed, contacted the applicant and stated that she had not attended her Dutch course and had not justified her absence. On that occasion, according to the applicant, she ‘had to re-explain [to the Head of Unit] the situation’.
59
On 22 June 2011, the applicant was invited to a meeting with the ‘Training’ Head of Unit to explain her absences from the Dutch course for which she was originally registered. According to the applicant, she was only invited to that meeting because the Head of Unit had told the ‘Training’ Head of Unit that she ‘was not able [to explain]’ the applicant’s absences on her behalf and had invited the ‘Training’ Head of Unit to contact her directly.
Facts concerning Mr G.
60
On 16 March 2012, Mr G., with whom the applicant worked as an ACI, sent an email to the applicant in which he asked her, inter alia, ‘for an explanation of [her] unusually reserved behaviour’ during the eleventh week of 2012, behaviour which Mr G. assumed was ‘the manifestation of a problem that [was unknown to him]’, but ‘perturb[ed their] so far and on [his] part correct relations’. In her reply, sent on the same day, the applicant explained that she was surprised by that email and by the criticism of her contained in it. She stated, inter alia, that throughout the five meetings during which she had to interpret in collaboration with Mr G., she ‘[had] behaved and communicated in a neutral and professional manner’.
61
The applicant, it is claimed, reported the exchange of emails mentioned in the preceding paragraph to the Head of ACI Recruitment.
62
On 23 April 2012, the applicant learned, she claims, that Mr G. had made ‘allegations against her at the [unit] meeting of 19 April 2012’. In an email of 16 May 2012, sent, not only to Mr G., but also to all her colleagues of the unit and to the Director, the applicant sought, inter alia, ‘clarification as to the exact nature of what Mr G. had said of her in her absence’. While leaving it to the Head of ACI Recruitment to reply to the applicant’s latter email, which he forwarded to him on that occasion, the Director, on the same day, informed the applicant that he regretted that she had ignored the Head of Unit’s instruction not to write personal emails to her colleagues. On the same day, the Head of ACI Recruitment informed the applicant that he was not aware of the content of the meeting of 19 April 2012 since he had not been present and had not seen the minutes. He added that, ‘[t]his being said, [he found] it not at all constructive to resort to email exchanges between colleagues to settle personal or professional issues’. He also explained that he would obtain the advice of the Head of Unit on the subject, while reserving the possibility of giving her his opinion as Head of ACI Recruitment.
63
As Mr G. did not reply to the email that the applicant had sent him on 16 May 2012 regarding what he had said about her, in her absence, at the unit meeting of 19 April 2012, she again asked him for an explanation on 8 and 12 June 2012.
64
On 18 June 2012, the Head of Unit sent the applicant an extract of the minutes of the meeting of 19 April 2012. In that extract, reference is made to the fact that Mr G. made comments about her, without specifying what those comments were. Subsequently, on 19 and 22 June 2012, the applicant requested further explanations, in particular concerning the content of proposed amendments to those minutes which were, it is claimed, submitted in connection with the item concerning her. According to the applicant, she has never received the final version of the item of those minutes at issue.
Forms of order sought
65
The applicant claims that the Tribunal should:
—
annul the contested decision;
—
annul, in so far as necessary, the decision to reject her complaint;
—
order the Parliament to pay the costs.
66
The Parliament contends that the Tribunal should:
—
dismiss the application;
—
order the applicant to pay the costs.
Law
Jurisdiction of the Tribunal
67
It should be noted that, under the first paragraph of Article 90 of the CEOS, ACIs employed by Parliament are subject to the conditions laid down in the Agreement of 28 July 1999, which provides, in Article 23 thereof, that, pursuant to Article 117 of the CEOS, individual disputes are to be referred to the appeal channels provided for in the Staff Regulations.
68
Consequently, the Tribunal has jurisdiction to hear the present case, also as regards the facts occurring after the applicant became an ACI.
Subject-matter of the action
69
A claim for annulment formally directed against the rejection of a complaint has the effect of bringing before the Tribunal the act against which the complaint was submitted, where that claim, as such, lacks any independent content (see, to that effect, judgments in Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and Camós Grau v Commission, T‑309/03, EU:T:2006:110, paragraph 43).
70
However, where the scope of the decision to reject the complaint differs from that of the measure against which that complaint was made — inter alia where it changes the original decision or where it contains a re-examination of the applicant’s situation in the light of new elements of law or of fact which, had they arisen or become known by the competent authority before the adoption of the original decision, would have been taken into consideration (see, to that effect, judgement in Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 32 and the case-law cited) — the Tribunal may be required to rule on the claims formally directed against the rejection decision.
71
In the present case, in addition to annulment of the contested decision, the applicant seeks by her application, ‘so far as necessary’, annulment of the decision rejecting the complaint. In that regard, in so far as that decision does not merely confirm the contested decision since the AECC made a ruling in it, inter alia, in relation to new facts, in this case the facts concerning the relations between the applicant and Mr G., it is necessary to examine the claims for annulment of both the contested decision and the decision rejecting the complaint.
Substance
72
In support of her action, the applicant, in her application, initially raised, in essence, two pleas for annulment of the contested decision and the decision rejecting the complaint, alleging respectively, first, manifest errors of assessment and the corresponding infringement of Article 12a of the Staff Regulations and, secondly, infringement of the duty to have regard for the welfare of officials. In the reply, she also raised two other pleas, alleging, first, an infringement of the duties of confidentiality and impartiality and, secondly, an infringement of the rights of the defence and of the duty of impartiality.
73
It is appropriate to examine in turn the four pleas thus identified.
Preliminary considerations
74
[As rectified by order of 30 April 2015] Whereas certain facts submitted by the applicant took place after the expiry, on 31 August 2011, of her employment as a member of the temporary staff and are thus related to the period during which she was an ACI, it must be noted, in the first place, that the engagement by the Parliament of an ACI under Article 90 of the CEOS automatically confers on that ACI the status of ‘member of the contract staff’ and, in particular, of contract staff within the meaning of Article 3b of the CEOS, since Article 90 of the CEOS is contained in Chapter 5, entitled ‘Special provisions for members of the contract staff referred to in Article 3b’ of Title IV of the CEOS (see, to that effect, judgment in Cantisani v Commission, F‑71/10, EU:F:2012:71, paragraph 60).
75
Consequently, it is clear that it is under Article 12a of the Staff Regulations, applicable to contract staff under Articles 11 and 81 of the CEOS, that all of the applicant’s allegations must be examined.
76
In the second place, as regards the concept of ‘harassment’, it should be recalled that Article 12a(3) of the Staff Regulations defines psychological harassment as ‘improper conduct’ which requires, in order to be established, that two cumulative conditions be satisfied. The first condition relates to the existence 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 must be a process that occurs over time and presumes the existence of repetitive or continual conduct, which is ‘intentional’. The second cumulative condition, which is joined to the first by the conjunction ‘and’, requires that such physical behaviour, spoken or written language, gestures or other acts have the effect of undermining the personality, dignity or physical or psychological integrity of any person (see, to that effect, judgment in Q v Commission, F‑52/05, EU:F:2008:161, paragraph 134, not set aside on that point by the judgment in Commission v Q, T‑80/09 P, EU:T:2011:347).
77
By virtue of the fact that the adjective ‘intentional’ applies to the first condition, and not to the second, it is possible to draw a twofold conclusion. First, the physical behaviour, spoken or written language, gestures or other acts referred to by Article 12a(3) of the Staff Regulations must be intentional in character, which excludes from the scope of that provision improper conduct which arises accidentally. Secondly, it is not, on the other hand, a requirement to prove that such physical behaviour, spoken or written language, gestures or other acts were committed with the intention of undermining the personality, dignity or physical or psychological integrity of a person. In other words, there can be psychological harassment within the meaning of Article 12a(3) of the Staff Regulations without the need to demonstrate that there has been any intention on the part of the harasser, by his conduct, to discredit the victim or deliberately impair the latter’s working conditions. It is sufficient that such improper conduct, provided that it was committed intentionally, led objectively to such consequences (see, to that effect, judgment in Q v Commission, EU:F:2008:161, paragraph 135, not set aside on that point by the judgment in Commission v Q, EU:T:2011:347, and Cantisani v Commission, EU:F:2012:71, paragraph 89).
78
Finally, as the conduct in question must, under Article 12a(3) of the Staff Regulations, be improper, it follows that the classification of ‘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 it to be excessive and open to criticism (judgment in Skareby v Commission, F‑42/10, EU:F:2012:64, paragraph 65).
79
It is in the light of those latter considerations that it is appropriate to examine the pleas put forward by the applicant relating to an infringement of Article 12a(3) of the Staff Regulations.
The first plea, alleging manifest errors of assessment and the corresponding infringement of Article 12a(3) of the Staff Regulations
80
By this plea in law, the applicant contends, in essence, that by refusing to recognise that the facts put forward by her constitute psychological harassment on the part of the Head of Unit, the AECC committed manifest errors of assessment of the events which occurred and therefore concluded, wrongly, that there was no psychological harassment within the meaning of Article 12a of the Staff Regulations, thus failing to comply with that provision.
81
In support of that plea, the applicant alleges various facts identified by her as constituting, both individually and jointly, psychological harassment and that should be examined as the basis of the corresponding complaints made in the context of that plea.
– Facts relating to the ‘questions to the management’
82
The applicant argues that the ‘questions to the management’ episode was the factor triggering a sudden deterioration in her working relationship with her Head of Unit and that, after that event, she repeatedly scolded and verbally threatened her.
83
In the contested decision, the AECC, relying on the findings mentioned in the Committee’s opinion, does not deny that there was a conflict between the applicant and her Head of Unit; that management and conflict management issues subsequently arose within the Czech unit; nor that mistakes may have been made by the Head of Unit. The Parliament maintains that position in the context of the present action.
84
In that regard, it is apparent from the facts put before the Tribunal that the submission to the Director of questions drawn up by the team of interpreters in the Czech unit, under the coordination of the applicant, provoked a strong reaction by the Director directed at the Head of Unit.
85
It is certainly regrettable that the Head of Unit, given her coordination and management role, did not initially take care to assess whether the questions raised by members of her unit were well founded and appropriate before submitting them to her hierarchical superior, especially in a situation where she implicitly, but necessarily, agreed to delegate to her subordinate a coordinating role that might otherwise have fallen to herself. It is also regrettable that, by her attitude, the Head of Unit sought to dissociate herself from members of her team after receiving negative feedback from her hierarchical superior in the person of the Director.
86
In those circumstances, it is undeniable that the incident contributed to the deterioration in working relations between the applicant and the Head of Unit.
87
However, it should be noted that the fact that an official has difficult, and even conflicting, relationships with his colleagues or superiors, is not in itself evidence of psychological harassment (see, inter alia, judgments in Michail v Commission, T‑486/04, EU:T:2008:111, paragraph 61, and N v Parliament, F‑26/09, EU:F:2010:17, paragraph 77). Furthermore, criticism by a hierarchical superior of work or a task carried out by a subordinate is not in itself inappropriate behaviour since, were that the case, the management of a service would be almost impossible (see, to that effect, judgment in Tzirani v Commission, F‑46/11, EU:F:2013:115, paragraph 97). Likewise, it has been held that negative comments addressed to a member of staff do not thereby undermine his personality, dignity or integrity where they are formulated in measured terms and are not based on allegations that are unfair and lacking any connection with objective facts (see judgments in Menghi v ENISA, F‑2/09, EU:F:2010:12, paragraph 110, and AN v Commission, F‑111/10, EU:F:2013:114, paragraph 98, on appeal before the General Court of the European Union in Case T‑512/13 P).
88
Therefore, even if the Head of Unit had actually verbally expressed her displeasure to the applicant regarding the content of the questions put to the management, such a circumstance, taken in isolation, does not in itself constitute a manifestation of harassment.
89
As regards the fact that the Head of Unit sought to ensure that the questions formulated, which she clearly had not taken the trouble to examine before sending to her Director, reflected the opinion of the various interpreters making up the unit, that certainly forms part of a clumsy approach, as also noted by the Committee on Harassment in its opinion. As Head of Unit, it was incumbent on her to check the questions raised in the name of the unit that she directs before submitting them to her Director.
90
However, the fact that the applicant felt she was specifically targeted seems, first and foremost, to be her subjective assessment in so far as, as the applicant herself acknowledges in her pleadings, she had taken the initiative to launch an open discussion by email with the interpreters in the unit and had submitted the questions arising from this to the Head of Unit. Thus, a reasonable and impartial observer, of normal sensitivity and in the same situation, could just as well consider the approach of the Head of Unit, not as excessive and open to criticism, but rather as clumsy and demonstrating a lacking sense of responsibility from a person who had been, perhaps excessively, condemned by her superiors, namely the Director.
91
As regards the applicant’s assertion that the Head of Unit had forbidden her to communicate by email on the matter of the questions put to the management, it appears that those instructions were also extended to other members of the unit and that, in any event, given the broad discretion enjoyed by the institutions in the organisation of their services, disagreements with the Head of Unit on issues related to the organisation of services cannot, as such, prove the existence of psychological harassment (see, to that effect, judgment in Tzirani v Commission, EU:F:2013:115 paragraph 82).
92
As regards, finally, verbal threats or intimidation that have been directed, it is claimed, repeatedly at the applicant by the Head of Unit, the Tribunal finds that the applicant has not proved to the requisite legal standard either the reality of those threats or the alleged scathing tone used by her hierarchical superior. Furthermore, the correspondence from the Head of Unit to the applicant demonstrates, on the contrary, an appropriate and professional tone, even in reply to emails from the applicant that were sometimes scathing or polemic.
– The facts relating to the meeting of 23 May 2011 and the minutes of that meeting
93
It is apparent from the Committee’s opinion and from the contested decision that, following the incident relating to the ‘questions to the management’, the working atmosphere deteriorated within the unit, with some people siding with the applicant and others with the Head of Unit. In that context, the Head of Unit encountered real management difficulties and it is apparent from the file that she sometimes lacked tact in her efforts to restore a good working atmosphere.
94
The issue of ‘questions to the management’ and that of holding or cancelling the planned meeting with the Director were on the agenda of the meeting of 23 May 2011 which, as is apparent from the documents placed on the file, resulted in heated exchanges. It appears, in particular, from an email annexed to the application by the applicant, that one of her colleagues, in response to point 6 of the draft minutes of the meeting circulated on 22 June 2011, refers in particular to the desire of the interpreters to protect themselves against the harsh criticism of the ‘senior management’ and not against the reaction of the Head of Unit.
95
It is possible that, given her managerial weaknesses, identified in the Committee’s opinion, the Head of Unit may have accidentally adopted an inappropriate tone at the meeting of 23 May 2011. However, accidental words or gestures are excluded from the scope of Article 12a(3) of the Staff Regulations.
96
It is also apparent from an email sent by the Head of Unit on 29 June 2011 to the members of the unit that she referred to protecting the anonymity of the authors of the ‘questions to the management’ in the minutes.
97
With regard to the general procedures for amendment of draft minutes of meetings, the Head of Unit did acknowledge that the principle of drawing up such minutes of meetings had only recently been introduced into the functioning of the unit and that, in fact, there were no specific rules governing their adoption. However, given the insistence of some interpreters in the unit, including the applicant, who, in a scathing email sent to the interpreters of the Czech unit, suggested that the Head of Unit was behaving in a dictatorial manner, the Head of Unit explained that the decision concerning the content of the final version of the minutes fell to her. The applicant challenged that rule by asking the Head of Unit to provide the existing legal basis. The Head of Unit, after consulting with the Director, then indicated the general principles applicable to the preparation of minutes.
98
In that regard, the Tribunal must point out that, in view of the broad discretion enjoyed by the institutions in the organisation of their services, neither administrative decisions, even if they are difficult to accept, nor disagreements with the administration over questions relating to the organisation of services, can by themselves prove the existence of psychological harassment (judgment in Tzirani v Commission, EU:F:2013:115, paragraph 82). Moreover, in the present case, the position adopted by the Head of Unit is entirely in keeping with her duties of coordination and management of the unit. Accordingly, the references by the applicant to the Head of Unit’s alleged past, to substantiate the latter’s lack of ability, are ineffectual.
99
As regards the email from the Head of Unit of 31 October 2011, addressed to the applicant in response to the email that she had initially sent to all interpreters of the Czech booth, copied to the Head of ACI Recruitment, it must be pointed out that messages which do not contain any defamatory or malicious wording, and which are sent to the person concerned alone or are copied to others, where the interest of the service so justifies, come within the normal context of a hierarchical relationship (see judgment in Lo Giudice v Commission, T‑154/05, EU:T:2007:322, paragraphs 104 and 105, and Tzirani v Commission, EU:F:2013:115, paragraph 97).
100
The abovementioned email of 31 October 2011 does not contain any defamatory or malicious wording regarding the applicant. The Head of Unit merely noted, in an entirely appropriate tone, that the applicant had not complied with her instructions not to send group emails on the subject, which was considered closed, of the drafting of the minutes of the meeting of 23 May 2011, and had not accepted her decision on the final content of those minutes. Sending that email to the Head of ACI Recruitment was justified by the fact that the applicant was no longer a member of the unit for the purposes of the Staff Regulations.
101
In any event, contrary to the impression given by the applicant, despite her differences with the Head of Unit that the Head of ACI Recruitment was aware of, the Parliament continued to use her as an ACI, though less regularly, as she was from then on increasingly sought by other institutions, after the expiry of the maximum period of employment of six years as a member of the temporary staff that she had benefitted from.
– The facts relating to the training working party and information concerning self-study half-days
102
In an email entitled ‘Training group — information’ and sent on 30 May 2011 to several of her colleagues in the unit, including the Head of Unit, the applicant, alongside general information on the training working parties, apologised for saying that it was not certain whether the two sessions of ‘self-study’ would be repeated. She also added, immediately afterwards, that ‘[the Head of Unit had] been able to confirm that they should take place again’.
103
It follows from that email that the applicant admitted that she had not properly understood the information that was given to her, during the training working party meeting on the morning of 23 May 2011, by the Head of Interpreters Training and which the applicant had relayed, ambiguously, at the meeting of 23 May 2011. As regards the fact that the Head of Unit took care to ask for confirmation of that information from the Head of Interpreters Training, the applicant cannot criticise that step, which not only falls within the remit of a Head of Unit, but also helped to clarify the situation, apparently to the satisfaction of her colleagues in the unit. The same applies to the invitation made by the Head of Unit to the applicant, at a meeting on 24 May 2011, to check if she had understood what the Head of the Professional Training Unit had said. Given the dissatisfaction among the applicant’s colleagues that was caused by the announcement of a possible cancellation of this opportunity for self-study at home, the conduct of the Head of Unit does not appear in any way inappropriate.
104
It follows from the foregoing that the alleged public condemnations of the applicant regarding the misunderstanding concerning the cancellation of two half-days of self-study do not constitute harassment.
– Facts relating to the translation of a medical report for a Member of the European Parliament
105
In that regard, the Tribunal notes, first, that the applicant has provided no evidence to support her claim that it was the Head of Unit who had asked her to translate a medical report on behalf of an MEP whom the applicant wished to remain anonymous.
106
Secondly, while it appears undisputed that the applicant did carry out such a translation, it is possible that she did so on a voluntary basis.
107
Thirdly, regardless of whether a subordinate can be requested to carry out such a translation on behalf of an MEP, as part of the service, by a hierarchical superior, such a request does not appear, as such, to objectively undermine the personality, dignity or physical or psychological integrity of the person concerned.
108
In those circumstances, the applicant cannot complain that the AECC committed a manifest error of assessment by not considering the circumstances in which the applicant had carried out the translation of the abovementioned medical report as falling within the definition of harassment under 12a(3) of the Staff Regulations.
– The facts concerning the approval of annual leave and the annual leave due to be taken before the end of the applicant’s contract as a member of the temporary staff
109
The applicant claims that, while her previous requests for leave were handled promptly, the Head of Unit suddenly behaved in dilatory manner with regard to the approval of two of her leave requests and adopted an offensive tone when informing her of the need to use up her remaining leave before the end of her contract as a member of the temporary staff. The Parliament contends that the leave requests at issue were handled without significant delay and that, in any event, the period in question was a period of intensive work for which, moreover, several interpreters had sought leave.
110
As regards the manifestation of psychological harassment in connection with requests for annual leave, the Courts of the European Union have already held that the refusal of annual leave in order to ensure the proper functioning of the service cannot, as such, be regarded as a manifestation of psychological harassment (judgments in Schmit v Commission, T‑144/03, EU:T:2005:158, paragraph 78, and N v Parliament, EU:F:2010:17, paragraph 78).
111
In the present case, the applicant’s leave applications were accepted by her superiors. Accordingly, the applicant’s complaint consists of criticising the AECC, first, for not having held, in the contested decision and the decision to reject the complaint, that the decisions approving her leave were delayed and, consequently, in the context in question, for not having considered them to be retaliation by the Head of Unit against her following the ‘questions to the management’ incident.
112
In that regard, whereas, under the first paragraph of Article 57 of the Staff Regulations, an official is entitled, per calendar year, to a minimum annual leave of 24 working days and a maximum of 30 working days, that provision does not, however, impose strict time-limits on the administration in dealing with requests for leave by officials and other staff.
113
It follows, however, from the explanations and documents provided by the Parliament that, as regards the interpretation units of the interpretation directorate, leave applications for interpreters must be sent, by the respective heads of those units, to the three operational services of the organisation and planning directorate of DG Interpretation and Conferences, namely the ‘Programming’, ‘ACI Recruitment’ and ‘Missions’ units of that directorate. It is only then, when those three services have given the green light and removed the interpreter from the interpretation programme, where appropriate, that the head of the interpretation unit concerned may approve the leave and enter it into the ‘Pericles’ software.
114
In the present case, the applicant was informed of the approval of her application for leave, made on 11 May 2011 and relating to the period from 13 to 16 June 2011, when she enquired with her Head of Unit in that regard, that is on 25 May 2011 at 11.54. Furthermore, with regard to her application submitted on 26 May 2011 and relating to a leave period for 30 June and 1 July 2011, the applicant received, after sending an email reminder on 16 June 2011, the approval of her Head of Unit on Monday 20 June 2011, after the Head of Unit had returned from a mission that took place on 16 and 17 June 2011.
115
In that regard, it is apparent from the documents submitted by the Parliament that the leave application for the period from 13 to 16 June 2011 was the subject of emails requesting the approval of the Programming Unit on 12, 18 and 23 May 2011. It was not until 23 May 2011 at 16.30 that that unit approved that application and informed the Head of Unit of this. That evidence confirms, first, that the applicant’s request for leave was being processed at another unit, so that the main delay in processing the application did not relate to an act or omission by the Head of Unit, and that, moreover and ultimately, the alleged delay attributable to the Head of Unit in the transmission of the information is less than two days, which is reasonable. The Tribunal notes, moreover, that if the Head of Unit had wanted to act in a repeated or systematic way against the applicant, she would also have been slow to approve the other leave application, relating to 13 July 2011, which she clearly did not do.
116
As regards the application for annual leave relating to 30 June and 1 July 2011, it is apparent from a statement provided by the Parliament that any delay in the approval of that application was attributable to another unit and not to the Head of Unit. In any event, that application was processed in a timely manner and the applicant had confirmation of approval two weeks before the requested period (see, by contrary inference, as regards leave approved after the date requested and more than six weeks after the application was made, judgment in Q v Commission, EU:F:2008:161, paragraph 180).
117
As regards the reminder of the Head of Unit concerning the need to submit leave applications at least five working days before the requested leave, it should be noted that this reminder did not relate to the applicant’s leave applications and that, moreover, such a reminder is not in itself objectionable as it is in the interest of the proper functioning of the service.
118
With regard to the fact that the Head of Unit told the applicant that she had to use up her remaining annual leave, namely one day of leave, before the end her contract as a member of the temporary staff, such a reminder is not in itself objectionable either since, on the contrary, it is good personnel management to ensure that staff declare and use their annual leave to avoid it being carried over to the following years or compensation for such unused leave upon expiry of a contract.
119
Accordingly, in particular having regard to the content of the email sent by the applicant to her Head of Unit on 16 June 2011, in which, after complaining about the delay in the approval of her application for leave, she also stated to her Head of Unit that, ‘[n]evertheless, if [she changed her] annual leave application [she] would like to ask [her] for an attestation that [she] could not use all [her] annual holiday leave before the end of [her] contract due to organisation reason[s] so that [she could] apply for a financial compensation which [she was] entitled to’, the reminders of the Head of Unit regarding the need to use up her remaining one day of leave were not inappropriate, either in principle or in their content.
– The absence from language classes
120
In that regard, it suffices to note that it is apparent from the attendance list for the Dutch course provided by Parliament that the applicant only participated on two half-days of the weekly upper intermediate level Dutch language course during the period between October 2010 and in June 2011 and that she did not comply with the requirement, existing also in other institutions, according to which enrolment in language courses in the interest of the service, provided during normal working hours, implies that the person concerned should immediately account for any absences from those courses to his hierarchical superior and to the service responsible for such language courses.
121
Assuming that the applicant duly informed her Head of Unit of the reasons for her absence from the Dutch course from the month of October 2010, the onus was on the applicant, in any event, as the beneficiary of that training, to personally undertake the administrative procedures required by the ‘Training’ unit, responsible for that language course, to ensure that the unit had made the appropriate changes in her administrative situation and to account for any absences to that unit also.
122
Accordingly, the fact that her Head of Unit was not able to explain to the Head of the ‘Training’ unit the reasons for the applicant’s absence from the Dutch course and invited that Head of Unit to address the applicant directly cannot constitute an act of harassment.
– The facts concerning Mr G.
123
The Tribunal cannot but observe that the applicant’s allegations concerning the conduct of Mr G. towards her concern the relationship between the applicant, as ACI, and one of her colleagues, and not her hierarchical superior referred to in her harassment complaint.
124
Even if Mr G. had denigrated the applicant at the unit meeting of 19 April 2012 in the presence of the Head of Unit and that the Head of Unit had not, as the applicant claims, sufficiently distanced herself from such remarks, that circumstance in no way justifies the conclusion that the Head of Unit harassed the applicant. The Tribunal notes, moreover, that ultimately, as regards the remarks that Mr G. allegedly made, first, the minutes of the meeting of 19 April 2012 did not mention them and, secondly, the applicant’s complaint is based on a rumour, which cannot be regarded as proof of harassment (judgments in Allo v Commission, T‑496/93, EU:T:1995:101, paragraph 48, and AN v Commission, EU:F:2013:114, paragraph 100).
– The medical certificates provided by the applicant
125
The applicant annexed to her application two medical certificates attesting to her incapacity for work concerning, respectively, the period from 8 to 15 July 2011, during which she was a member of the temporary staff, and the period from 3 to 13 July 2012, during which she was an ACI. She also produced a certificate from the Parliament medical service confirming that she had presented herself to that service on 9 and 23 August 2011 and that she had requested an appointment with a psychologist during the week of 11 July 2011, a request that could not be satisfied as the psychologist was not available. Furthermore, she presented three certificates, one drawn up on 7 August 2012 by a psychologist, the other two drawn up 1 and 31 August 2012 by a neuropsychiatrist. Those three certificates refer, inter alia, to an anxiety-depressive disorder affecting the applicant as a result of an experience of psychological harassment.
126
In that regard, the applicant claims that those certificates demonstrate that the contested conduct of her Head of Unit undermined her personality, dignity or physical or psychological integrity. For its part, the Parliament points out that the certificates issued in August 2012 were not brought to the attention of the medical service until 22 October 2012, that is, one week before the decision to reject the complaint, and that the medical service could not forward that type of document to the AECC for reasons of medical confidentiality.
127
The Tribunal notes that, in any event, the medical certificates submitted, if they reveal that the applicant has psychological problems, do not establish, however, that those problems result from psychological harassment, since, to make such a finding of harassment, the authors of the certificates necessarily rely exclusively on the description that the applicant made of her working conditions in the Parliament (see, to that effect, judgment in K v Parliament, F‑15/07, EU:F:2008:158, paragraphs 40 and 41).
128
In view of the foregoing and the facts relied on by the applicant, taken alone or examined together as a whole, the Tribunal considers that they certainly reveal a conflictual relationship in a difficult administrative context, but are not evidence of acts of an abusive or voluntary nature, the documented statements and behaviour showing at best a clumsy management of the conflictual situation, and not a deliberate intention to act abusively toward the applicant.
129
Consequently, the Court concludes that, in the present case, the AECC did not commit manifest errors of assessment with regard to the facts relied on by the applicant in her complaint and did not act in breach of Article 12a(3) of the Staff Regulations. Accordingly, the first plea must be rejected.
The second plea in law, alleging infringement of the duty to have regard for the welfare of officials
130
It should be recalled that, under Article 35(1) of the Rules of Procedure, the application must state the subject-matter of the dispute and the pleas in law and the arguments of fact and law relied on, which means that it must specify the nature of each ground on which the action is based, so that a mere abstract statement of infringements of provisions or of general principles of law does not meet the requirements of the Rules of Procedure (judgment in Michail v Commission, F‑34/06, EU:F:2007:205, paragraph 42 and the case-law cited).
131
In the present case, as regards the infringement of the duty to have regard for the welfare of officials alleged by the applicant, the Tribunal notes that no specific argument has been developed by the applicant, with the exception, noted by Parliament, of a brief passage in her pleadings where it is claimed, in connection with the behaviour of the Head of Unit during the incident with Mr G., that ‘[d]enying the qualification of moral harassment reveals a manifest error of appreciation on the part of the [Parliament], as well as an infringement of [A]rticle 12a(3) [of the Staff Regulations] which, in turn, led it to breach its duty to have regard for the applicant’s welfare’.
132
It follows that, as argued by the Parliament, that plea in law must be rejected as inadmissible. In any event, it appears that the applicant is suggesting that manifest errors of assessment and the infringement of Article 12a of the Staff Regulations, against which the first plea is directed, necessarily entail an infringement of the duty to have regard for the welfare of officials. Irrespective of whether or not this could be the case, it should be noted that, in the present case, if the applicant’s reasoning were to be followed, in so far as the first plea in law has been rejected, the plea alleging an infringement of the duty to have regard for the welfare of officials must, in any event, also be rejected.
The third plea in law, alleging infringement of the duties of confidentiality and impartiality as set out in Articles 7 and 10(1) of the internal rules
– Admissibility
133
The applicant raises the third plea in law for the first time in her reply, in full knowledge that it is a new plea, and claims in essence that, in so far as the Head of Unit had been informed, no later than 17 August 2011, that the applicant was planning to lodge a complaint with the Committee on Harassment, and that the Committee had informed the hierarchy of the existence of a problem without having first heard her as a complainant, the Committee infringed Articles 7 and 10(1) of the internal rules. She states that she only became aware of that irregularity committed by the Committee upon reading the defence and its annexes so that, pursuant to Article 43 of the Rules of Procedure, the present plea, although new at the reply stage, should be declared admissible.
134
As regards the admissibility of the present plea, the Tribunal finds that, contrary to what the Parliament contends, the applicant could not effectively take full cognisance of the events until she received the annexes to the defence filed by Parliament, so that the present plea, although submitted for the first time in the reply, must be considered as being based on facts that became apparent to the applicant in the course of the proceedings.
– Substance
135
The applicant submits that, although she did not confirm until 8 September 2011 that she actually wanted to file a complaint with the Committee on Harassment, the Head of Unit had already been advised of that situation, which, it is alleged, constitutes an infringement of Articles 7 and 10(1) of the internal rules that require the Committee to work with complete autonomy, independence and confidentiality and not to contact the hierarchy unless authorised in advance by the victim of harassment.
136
Specifically, the applicant relies in this regard on the fact that the Parliament indicates, in its defence, that ‘from 17 August 2011, the Head of Unit started writing her emails in English, since the [a]pplicant had already contacted the Chair of the Advisory Committee on Harassment …’. In addition, she notes that the Head of Unit, in her observations of 5 September 2012 on the complaint, attached to the defence, observed, referring to her ‘first English email [dated 17 August 2011]’ that ‘in that time [the applicant] had already lodged her complaint with the [Committee on Harassment]’. Lastly, the applicant states that the impartiality of the Committee on Harassment is called into question by the fact that it is apparent from its opinion that a ‘conciliation meeting’ was held on 18 August 2011 between the Director and the applicant, whereas the applicant denies that there was any attempt at conciliation during that meeting.
137
The Parliament disputes the validity of that argument.
138
In that regard, the Tribunal notes first that, contrary to what the applicant claims, it is not apparent from the case file that when the Head of Unit started, on 17 August 2011, to write her emails in English, she had necessarily been informed by the Committee that the applicant had already contacted the Chairman of that Committee. Furthermore, there is no reason to dispute the explanation of the Head of Unit that she decided to use English for purely administrative reasons. For example, in her email to the applicant of 17 August 2011, the use of the English language could be appropriate to address the issue of using up annual leave since this type of correspondence could also be used later for other services of the Parliament, such as the service responsible for the management of leave or the one responsible for the liquidation of entitlements under the Staff Regulations upon expiry of the applicant’s contract as a member of the temporary staff.
139
Next, as regards the content of the Head of Unit’s statement of 5 September 2012, it is sufficient to observe that, in her complaint of 6 August 2012, the applicant stated that, ‘[a]s things started to escalate with the [Head of Unit], [she] reported the [situation] to the … Committee on Harassment …’. For that reason, the Head of Unit could state, on 5 September 2012, that the applicant had contacted the Committee on Harassment in July 2011.
140
Moreover, without there being any need to determine to what extent it is necessary to interpret Article 10(1) of the internal rules as meaning that, in any event, the Committee on Harassment has a margin of discretion as to whether to contact the hierarchy, it should be noted that there is nothing on the case file to justify the assumption that, in the present case, the Committee on Harassment, or its Chairman, as the applicant claims, contacted the Head of Unit or the Director before officially receiving her complaint on 8 September 2011. Moreover, it cannot be excluded that the applicant herself revealed to one of her colleagues her intention or her decision to refer to the Committee on Harassment, information that could have subsequently been relayed to the Head of Unit.
141
Finally, it is necessary to point out that the mere fact that, in the Committee’s opinion, the meeting of 18 August 2011 was described as a ‘conciliation’ meeting has no bearing on the assessment of the matter under examination in the present case.
142
The third plea in law must therefore be rejected.
The fourth plea in law, alleging infringement of the rights of the defence and of the duty of impartiality
– Admissibility
143
The applicant states that it was only upon reading the Committee’s opinion that she learned that the Head of Unit, unlike herself, was heard not once, but twice. For that reason, the applicant claims, this plea should be held to be admissible.
144
As regards the admissibility of the present plea, the Tribunal finds that the applicant could not effectively take full cognisance of the fact that the Head of Unit had been heard twice by the Committee until she had read the opinion of that Committee. Accordingly, the present plea, although new, must be regarded as based on factual evidence which became apparent to the applicant during the proceedings.
– Substance
145
The applicant states that the Head of Unit has been heard by the Committee twice, the first time on 5 October 2011, and again, at her request, on 28 November 2011. Thus, after hearing the evidence provided by the applicant during her only interview with the Committee, the Head of Unit was given the opportunity to respond to that evidence, while the applicant was deprived of the opportunity to respond to statements made by the Head of Unit during that second interview. According to the applicant, this amounts to an infringement of the rights of the defence and of the Committee on Harassment’s duty of impartiality.
146
The Parliament rejects those criticisms and contends that the plea should be rejected.
147
In that regard, the Tribunal observes, first, that in its work, the Committee on Harassment is not bound by strict rules of procedure that would require it to hear the applicant a second time, if that Committee considers it unnecessary to do so. Its role is advisory and its opinion does not constitute an act adversely affecting the applicant. Furthermore, the Tribunal notes that the applicant and the Head of Unit are not in the same position before the Committee on Harassment. The Head of the Unit must be able to defend herself, as stated in the second paragraph of Article 10 of the internal rules, against the complaint made to the Committee by the applicant. In those circumstances, the fact that the Head of Unit was given an additional opportunity to answer the allegations made against her cannot demonstrate an infringement of the applicant’s rights of defence by the Committee on Harassment or an infringement by that Committee of its duty of impartiality. In any event, the applicant has failed to indicate which elements referred to during the second hearing of the Head of Unit she would have liked to take a position on and to what extent a position taken by the applicant would have led the Committee on Harassment to come to a different conclusion.
148
In the light of the above, the fourth plea must be dismissed and, as a consequence, the claim seeking annulment of the contested decision and of the decision rejecting the complaint must be rejected in their entirety as unfounded.
Costs
149
Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that that party is not to be ordered to pay any.
150
It is apparent from the reasons set out in the present judgment that the applicant has been unsuccessful. Furthermore, in its pleadings the Parliament has expressly requested that the applicant be ordered to pay the costs. Since the circumstances of the present case do not warrant the application of Article 87(2) of the Rules of Procedure, the applicant must bear her own costs and be ordered to pay the costs incurred by the Parliament.
On those grounds,
THE CIVIL SERVICE TRIBUNAL (Third Chamber)
hereby:
1.
Dismisses the action;
2.
Declares that CQ is to bear her own costs and orders her to pay the costs incurred by the European Parliament.
Van Raepenbusch
Perillo
Svenningsen
Delivered in open court in Luxembourg on 17 September 2014.
W. Hakenberg
Registrar
S. Van Raepenbusch
President
( *1 ) Language of the case: English.
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