14 July 2021 (*)

(Action for annulment and for damages – Civil service – ECDC staff – Psychological harassment – Article 12a of the Staff Regulations – Damage to reputation – Request for assistance – Article 24 of the Staff Regulations – Dismissal of application – Right to be heard – Absence of prima facie evidence – Duty of care – Action in part manifestly inadmissible and in part manifestly lacking any foundation in law)

In Case T‑79/20,

AI,

applicant,

European Centre for Disease Prevention and Control (ECDC),

defendant,

APPLICATION under Article 270 TFEU seeking, first, annulment of ECDC’s decision of 5 April 2019 rejecting the applicant’s request for assistance of 10 April 2018 and, in so far as necessary, of ECDC’s decision of 4 November 2019 rejecting the complaint against the decision of 5 April 2019 and, secondly, compensation for the damage suffered,

THE GENERAL COURT (Seventh Chamber),

composed of R. da Silva Passos, President, L. Truchot and M. Sampol Pucurull (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Background to the dispute

2The applicant, AI, was recruited by the European Centre for Disease Prevention and Control (ECDC) on [confidential]. (1)

3On 20 June 2017, the applicant submitted a request for assistance (‘the first request for assistance’) within the meaning of Article 24 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), concerning alleged acts of psychological harassment by his Head of Unit, A (‘the Head of Unit’).

4On 14 July 2017, the applicant submitted an information form supplementing his first request for assistance.

5On 28 September 2017, B, a former official of the European Commission, was mandated by the Director of ECDC (‘the Director’) to carry out an investigation into the conduct of the Head of Unit denounced by the applicant and by another ECDC staff member, C.

6By letter of the same day, the Director informed the applicant of the opening of that investigation. At the end of January 2018, B submitted his report to the Director (‘the investigation report’).

7The Head of Unit was placed on sick leave from 31 January 2018 to 3 April 2018. On that date, he did not return to his previous duties, but was given tasks directly entrusted and supervised by the Director, without having any hierarchical link with the applicant.

8By letter of 10 April 2018 to the Director, the applicant submitted a second request for assistance (‘the second request for assistance’). That request was worded as follows:

‘ … during and after [B’s] investigation on [the Head of Unit’s] alleged harassment, some colleagues approached me telling me that they have been contacted by [the latter] about the investigation. They told me that he [had] tried to convince them that all allegations of improper conduct are false and a fabrication by [C] and me, generated by the fact that that we have not been selected for the newly created post of Deputy Head of Unit. It has also been reported to me that [the Head of Unit had] contacted the new Deputy Head of Unit, [H], giving her the same message that all accusations are fabrications by disgruntled employees that did not get the post. Among the colleagues that approached me, there are managers of my unit that received from [the Head of Unit] the same untruthful allegations.

I have many concerns about this issue.

First, it is not true that I started the complaint because I did not get the post …

Second, it seems to me that this is direct slander from [the Head of Unit] towards me …

Third, I am very concerned that this slandering behaviour will continue now that [the Head of Unit] is back at the office. He is again in a position to keep on inventing falsities to put my work and me in a bad light. I know from witness’ reports that this has happened also to others even when they were not under his line of management. I have also the same concern about the possible restart of his harassing behaviour towards me and towards colleagues around me.

I would be grateful if you could ascertain the facts that have been reported to me and if they can be considered slander. I would also be very grateful if you can intervene to prevent any possible slandering behaviour from [the Head of Unit] now that he is back in the office. I also hope that you can protect my personal and professional reputation particularly in front of my management. And of course I hope that any restart of the harassing behaviour can be prevented.

… ’

9By letter of 19 April 2018, the Director acknowledged receipt of the second request for assistance. She also informed the applicant that the administrative investigation procedure initiated in the context of the first request for assistance was still ongoing, as the Head of Unit had been absent. The applicant was also informed that, in view of the allegations made in the second request for assistance, the Head of Unit would be reminded of his obligation to keep the information relating to the investigation strictly confidential and not to discuss it with any other staff member. Finally, the Director indicated that a decision would be taken within four months from the date of the second request for assistance.

10On 18 May 2018, the Director sent the applicant a letter in response to his first request for assistance (‘the decision of 18 May 2018’). That letter contained essentially the following passages:

‘ … I received the report from the external investigator, [B], at the end of January. The outcome of the investigation provides an account from you and another claimant, also backed by several witness statements. The investigator concludes that in his view the two claims of harassment can be upheld.

As you know, [the Head of Unit] was absent in the first part of this year, and I could therefore only now conclude the process. I communicated the outcome of the report to [the Head of Unit] in April, after his return to the office, and in accordance with the procedure, gave him the opportunity to provide his views on the results of the investigation.

Having read the report and taking into account the information available to me, I came to the conclusion that there have been elements of psychological harassment. At the same time, I can see that there are a few factual errors in the report. While taking into account that [the Head of Unit], in his role …, needed to act on certain issues, I do consider however that how he dealt with these issues and his way of managing has caused unnecessary stress and anxiety for staff. I was therefore contemplating appropriate measures, however, in the meantime, [the Head of Unit] has resigned from his post and will no longer be in the office. Considering his previous absence and subsequent reassignment to the Director’s Office and given his resignation, I trust that your [first] request for assistance has been addressed and the situation causing you distress does no longer exist.’

11By letter of the same day, in response to the second request for assistance (‘the second letter of 18 May 2018’), the Director informed the applicant of the following:

‘On 10 April 2018, you filed [the second] request for assistance according to Article 24 of the Staff Regulations, which is directly related to your [first] request for assistance … and the respective investigation following [that] request.

Further to my letter of 19 April 2018 and given the recent resignation of [the Head of Unit], I consider that no further action is needed to address your concerns as required in the [second] request for assistance …

Please let me know should you feel that your concerns have not been addressed sufficiently.’

12On 29 May 2018, the Head of Unit submitted a request for assistance due to the disclosure of confidential information about the investigation against him in the Swedish media as well as anonymous threats he had received.

13By letter of 30 May 2018, the applicant requested access to the investigation report and to all the documents on the basis of which the Director of ECDC made the decision of 18 May 2018, including those on the basis of which she considered that the investigation report contained ‘a few factual errors’. That request was made pursuant to Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’). According to the applicant, such access became necessary in the light of the decision of 18 May 2018 and crucial in the light of his second request for assistance, since the Head of Unit had behaved in a slanderous manner towards him. In the same letter, the applicant asked for more details about the Head of Unit’s contractual situation after his resignation.

14By letter of 1 June 2018, in response to the letter of 30 May 2018, the Director invited the applicant to provide additional information and evidence, in order to determine whether an investigation should be launched into the conduct denounced in the second request for assistance. To that end, she asked him to complete an additional information form to determine whether the facts denounced could constitute harassment within the meaning of Article 12a of the Staff Regulations.

15On 7 June 2018, the applicant sent the additional information form. In that form, he specified that the second request for assistance concerned defamatory or slanderous conduct in the context of the situation of psychological harassment already denounced in the first request for assistance. In the light of the evidence submitted on 10 April 2018, which attested to conduct which he also described as psychological harassment, the applicant stated, inter alia, that the Head of Unit, when he had had the opportunity to do so, had reduced the reclassification points which his direct superior, the Head of Section, had granted him. He also explained that there had been a dispute with the Head of Unit in the 2016 reclassification exercise regarding the manner in which the applicant had awarded performance points to those under his responsibility. The applicant also stated that C, D, E, F, G and H could corroborate, directly or indirectly, his denunciations of the statements of the Head of Unit. As to the dispute concerning the awarding of points in the 2016 reclassification exercise, he mentioned the names of five other persons who could testify in that regard.

16By letter of 20 June 2018, addressed to the applicant’s lawyers (‘the decision of 20 June 2018’), the Director rejected the request for access to, inter alia, the investigation report submitted on 30 May 2018 (see paragraph 12 above).

17By letter of the same day to the applicant (‘the second letter of 20 June 2018’), the Director asked him certain questions about the information contained in the additional information form sent on 7 June 2018 in the context of the second request for assistance. In particular, the Director asked him about G’s status as a witness, what the Head of Unit may have done when he returned to the office in April 2018 and how the Head of Unit may have used IT and communication tools to continue to slander or criticise him during the period of his notice. The Director also informed him that she would contact C, D, E, F, H and probably G to get their witness statements. Finally, the Director provided details of the 2016 reclassification exercise. In particular, she explained the need to ensure that the grading of staff within ECDC, done in the first instance by each line manager, retained some consistency for people of the same grade. That led the hierarchy and the Director to compare the points awarded by the various officials and to adjust them, if necessary, in order to avoid the latter being solely dependent on the line manager, who could grade more or less generously. However, the applicant’s awarding of the highest score for the 2016 reclassification exercise to all the people for whom he was the line manager was highly unusual within ECDC. It had therefore been necessary to reduce those ratings and to inform the persons concerned.

18By letter of 28 June 2018, the applicant replied to the questions put to him by the Director in the second letter of 20 June 2018. With regard to the Head of Unit’s behaviour before his resignation, the applicant stated that, in view of the latter’s animosity towards him, it was very likely that he had continued to slander him, but that he had no proof of that. He asked the Director to investigate the matter. As regards the Head of Unit’s behaviour after his resignation, the applicant stated that he did not know his professional status within ECDC. However, he noted that, during the period of his notice, the Head of Unit continued to have access to ECDC’s e-mail system and other applications allowing him to access all documents drafted by the applicant. In those circumstances, his anxiety continued, as he knew that the Head of Unit could criticise his work, consult his diary and continue to slander him.

19On 2 July 2018 the applicant lodged a complaint under Article 90(2) of the Staff Regulations challenging the decisions of 18 May and 20 June 2018. In that complaint, he also claimed compensation for the non-material damage allegedly caused to him by those decisions, assessed ex aequo et bono at the sum of EUR 40 000.

20By letter of 3 July 2018, the Director acknowledged receipt of the additional information provided by the applicant in his letter of 28 June 2018 and indicated that she would proceed as indicated in her second letter of 20 June 2018.

21From 9 July to 20 August 2018, the Director interviewed C, D, F, E, G and H, in order to collect their witness statements.

22By letter of 7 September 2018 (‘the decision of 7 September 2018’), the Director replied to the applicant’s second request for assistance as follows:

‘ …

As mentioned in my [second] letter of 20 June 2018, I subsequently spoke to those witnesses you indicated to get a better understanding of the situation and establish whether there are any grounds to launch another investigation. Having spoken to all of them, I have concluded that there is no evidence that [the Head of Unit] had made the alleged comments in a defamatory manner. While he mentioned the investigation to some witnesses in bilateral settings, it is my understanding that he did so in a way as to defend himself and to express his view of the situation.

Having also considered your concerns and additional comments on the potential risks of [the Head of Unit] being able to access ECDC systems and tools, I do not have any evidence that he has used them to harm you by making defamatory remarks or using information to this effect. The mere possibility that they could potentially be used with such an intention, does not allow me to take preventative measures against [the Head of Unit].

Taking account of the foregoing, I do not see any grounds to take this matter further.’

Further to my letter of 7 September 2018 regarding your [second] request for assistance …, your lawyers …, submitted a complaint … In this complaint, it is stated that my letter affected your interests adversely and that you should therefore have been given the opportunity to be heard prior thereto. … I now understand from the complaint that you nevertheless felt that your interests were affected adversely. In the light of this, you will shortly be invited to a meeting to provide your views on my preliminary assessment and my conclusions. [The decision] of 7 September 2018 is hereby withdrawn …’

29By letter of 11 March 2019, the applicant’s lawyers requested disclosure from the Director of all documents, material and notes on which she had relied in reaching her preliminary assessment and conclusions.

30By letter of 15 March 2019, the Director indicated to the applicant that, taking into account all the material received from the latter, the witnesses as well as her own knowledge of the circumstances giving rise to the second request for assistance, she intended to close that request in the absence of evidence of slander or risk of future slander. As regards the 2016 reclassification exercise, she essentially reiterated her position expressed in her second letter of 20 June 2018 (see paragraph 16 above). As regards the references by the Head of Unit to third parties of the investigation opened following the first request for assistance, the Director summarised anonymously the witness statements she had gathered from the persons mentioned by the applicant in his second request for assistance, whose names she indicated. The Director also specified the period of the year during which those interviews had been held and explained to the applicant why she could not give individual details of each testimony, in order to respect the confidentiality of the investigation. In her view, in the light of those witness statements, the statements made by the Head of Unit were mainly aimed at defending himself and expressing his views on the situation. Furthermore, she saw no evidence of slander or deliberately defamatory comments. Finally, as regards the Head of Unit’s alleged actions after April 2018, no evidence of slander or criticism had been provided by the applicant. The Director invited him to express his views on those matters during a meeting scheduled for 25 March 2019.

31On 15 March 2019, the Head of Unit permanently left ECDC after his notice period.

32By letter of 20 March 2019, the applicant’s lawyers again requested access, before the meeting of 25 March 2019, to the documents and notes on which the Director had based her opinion. In particular, they requested that the applicant be given access to the records of the statements of the witnesses interviewed by the Director and to the position paper of the Head of Unit. Furthermore, the applicant’s lawyers indicated that they considered that the Director had already taken her decision to reject the applicant’s second request for assistance before hearing him.

33By letter of 21 March 2019, the Director clarified, in response to the letter of the applicant’s lawyers of 20 March 2019, that she had held interviews with the witnesses mentioned by the applicant in the context of his preliminary examination, but that she had not ‘interrogated’ them. As stated in the letter of 15 March 2019, she stressed that she could not disclose the minutes of the interviews in order to ensure the confidentiality of the witnesses in the investigations and their personal data, which was why she had provided the applicant with a summary of their statements and her conclusions following the interviews. In her view, that summary provided the applicant with sufficient information to understand its reasoning and to ensure that his right to be heard at the meeting on 25 March 2019 was respected. Furthermore, she mentioned that, contrary to what the applicant had assumed, she had not heard the Head of Unit during his preliminary examination. The Director indicated that she had relied on the material submitted by the applicant, on the testimony of certain persons he had named and on her own knowledge and perception of the situation. Finally, she pointed out that, in her letter of 15 March 2019, she had only informed the applicant of her intention to reject the second request for assistance, as such a decision had not yet been taken following the withdrawal of the decision of 7 September 2018.

34On 25 March 2019, the meeting between the Director and the applicant took place. The latter was assisted by his lawyer.

35By letter of 5 April 2019 (‘the contested decision’), the Director rejected the applicant’s second request for assistance in the following terms:

‘Further to my letter of 6 March 2019 and the hearing which has taken place on 25 March 2019, I am writing to provide you with my decision as regards your [second] request for assistance …

In my letter of 15 March 2019, I informed you about [the] intended decision and the reasoning for [it] …

In our meeting of 25 March 2019, in which your legal counsel … participated by phone, you had the opportunity to voice your views regarding this matter. In particular, you took the opportunity to explain your rationale for allocating [four] to all your staff in detail. Furthermore, you reiterated your view that [the Head of Unit], by being employed by ECDC and having access to ECDC systems and communication channels, had the possibility to use information to your detriment and most likely continued with the slandering. At the same time, you confirmed that you do not have any further evidence of [the Head of Unit’s] alleged slandering behaviour. Overall, I did not receive any additional evidence or relevant information allowing me to change my view on the matter.

Consequently and after having carefully considered the information available to me, including the elements mentioned in my letter of 15 March as well as your views conveyed during the hearing of 25 March 2019, I do not see any ground to take the matter further.’

36By letter of the same date (‘the second letter of 5 April 2019’), the Director replied to the complaint lodged by the applicant on 5 December 2018 against the decision of 7 September 2018 (see paragraph 25 above). She indicated that, although the latter had been withdrawn on 6 March 2019, she wished to give a response to that complaint in accordance with the principle of good administration. In particular, she explained why she considered that the exchanges that the Head of Unit had had with certain ECDC staff members concerning B’s investigation of the first request for assistance could not justify the opening of an administrative enquiry.

37By letter of 10 May 2019, the applicant and three other ECDC staff members lodged a complaint under Article 90(2) of the Staff Regulations against the decision of 11 February 2019 (see paragraph 26 above).

38By letter of 5 July 2019, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the contested decision. In that complaint, the applicant took a position not only on the contested decision, but also on the analysis made by the Director in the second letter of 5 April 2019 (see paragraph 36 above). The applicant included in his complaint a claim for compensation for the non-material damage allegedly caused to him by the contested decision, assessed ex aequo et bono at the sum of EUR 45 000.

39By letter of 10 September 2019, the Director rejected in its entirety the complaint referred to in paragraph 37 above.

40By letter of 4 November 2019, sent to the applicant on the same day, the Director rejected in its entirety the complaint lodged on 5 July 2019 against the contested decision (‘the decision rejecting the complaint’). With regard to the grievances raised by the applicant in that complaint against the second letter of 5 April 2019, the Director considered that, in the absence of an appeal to the Court against that letter, the applicant was precluded from bringing the action.

Procedure and forms of order sought

41By document lodged at the General Court Registry on 12 February 2020, the applicant brought the present action.

42By document lodged at the Registry of the General Court on 24 February 2020, the applicant requested that he be granted anonymity under Article 66 of the Rules of Procedure of the General Court. That application was allowed by decision of the Court of 2 April 2020.

43On 27 May 2020, ECDC lodged its defence at the Court Registry.

44The applicant did not file a reply within the time limit set.

45By document lodged at the Court Registry on 15 September 2020, the applicant submitted a reasoned request, under Article 106 of the Rules of Procedure, to be heard during the oral part of the procedure.

46The applicant claims that the Court should:

–annul the contested decision;

–if necessary, annul the decision rejecting the complaint;

–order compensation for the non-material harm assessed ex aequo et bono at EUR 75 000;

–order ECDC to pay the costs.

47ECDC contends that the Court should:

–dismiss the application as unfounded in its entirety;

–order the applicant to pay the costs.

48Under Article 126 of the Rules of Procedure, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may decide to give a ruling by reasoned order without taking further steps in the proceedings.

49In the present case, the Court considers that it has sufficient information from the material in the file and has decided to give a decision without taking further steps in the proceedings.

Subject matter of the action

50The applicant requests the Court, in addition to the annulment of the contested decision, to annul, ‘if need be’, the decision to reject the complaint.

51According to settled case-law, claims for annulment formally directed against the decision rejecting a complaint have the effect of bringing before the Court the act against which the complaint was submitted, where those claims are, as such, devoid of independent content (see judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 63 and the case-law cited).

52However, where the decision rejecting the complaint has a different scope from that of the act against which the complaint was lodged, in particular where it amends the initial decision or where it contains a re-examination of the applicant’s situation in the light of new matters of law and fact which, had they arisen or been known to the competent authority before the adoption of the initial decision, would have been taken into consideration, the Court may be required to rule specifically on the submissions formally directed against the decision rejecting the complaint (see judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 36 and case-law cited).

53In the present case, the decision rejecting the complaint is not purely confirmatory of the contested decision, in that the Director ruled on a new element, namely the second letter of 5 April 2019, which was also contested by the applicant in his complaint.

54In those circumstances, it is necessary to rule on the claims for annulment of both the contested decision and the decision rejecting the complaint.

55In addition, the decision rejecting the complaint specifies certain reasons for the contested decision. Thus, the Director states, in substance, that the witness statements mentioned in the latter were the only ones she had collected. Consequently, in view of the evolving nature of the pre-litigation procedure, that additional statement of reasons must also be taken into consideration when examining the legality of the contested decision, since that statement of reasons is deemed to coincide with the latter (see, to that effect, judgment of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraphs 55 and 56 and the case-law cited).

The claim for annulment

56In support of his claim for annulment directed against the contested decision, as supplemented by the decision rejecting the complaint, the applicant puts forward three pleas in law. The first plea in law alleges breach of the right to be heard, the second alleges manifest errors of assessment and an infringement of Article 24 of the Staff Regulations and the third alleges a breach of the duty of care.

Preliminary observations

57As a preliminary point, it is necessary to note the legal rules applicable to the obligation to assist.

58Under the first paragraph of Article 24 of the Staff Regulations, the European Union is to assist any official, ‘in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties’.

59According to settled case-law, although Article 24 of the Staff Regulations is designed primarily to protect EU officials against attacks and ill-treatment by third parties, the obligation to provide assistance envisaged by that provision also exists where the perpetrator of the acts referred to therein is another EU official (see, to that effect, judgment of 14 December 2000, Verheyden v Commission, T‑213/99, EU:T:2000:307, paragraph 26 and the case-law cited).

60Where serious allegations are made concerning the professional reputation of an official in the performance of his duties, Article 24 of the Staff Regulations requires the administration to take all steps to ascertain whether the allegations are well-founded and, where they are not, to reject them and to take all steps to restore the damaged reputation (see, to that effect, judgment of 14 December 2000, Verheyden v Commission, T‑213/99, EU:T:2000:307, paragraph 25 and the case-law cited).

61In the case of allegations of psychological harassment, the obligation to provide assistance under Article 24 of the Staff Regulations entails, in particular, a duty on the part of the administration to examine seriously, promptly and confidentially the request for assistance in which psychological harassment is alleged and to inform the applicant of the outcome (see judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 56 and the case-law cited).

62The administration to which a request for assistance within the meaning of Article 24 of the Staff Regulations has been made must, by virtue of the obligation to provide assistance and if it is faced with an incident incompatible with the orderly and smooth running of the service, intervene with all the necessary energy and respond with the speed and solicitude required by the circumstances of the case with a view to establishing the facts and drawing the appropriate consequences in full knowledge of the facts. To that end, it is sufficient for the official or staff member claiming the protection of his or her institution to furnish prima facie evidence of the reality of the attacks to which he or she claims to be subjected. If such evidence is provided, it is for the institution in question to take appropriate measures, in particular by having an administrative enquiry carried out, in order to establish the facts giving rise to the request for assistance, in cooperation with the person making the request (see judgment of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraph 46 and the case-law cited).

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

64Where the allegations in the request for assistance concern psychological harassment, it is therefore for the applicant for assistance to provide prima facie evidence of such harassment in the light of the definition in Article 12a(3) of the Staff Regulations, namely, ‘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 the person requesting assistance.

65Finally, as regards the lawfulness of a decision rejecting a request for assistance without an administrative investigation having been opened, the Courts of the European Union must examine the merits of that decision in the light of the information brought to the knowledge of the institution, in particular by the applicant for assistance, when the latter took its decision (see judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 60 and the case-law cited).

66It is in the light of those considerations that the pleas in law raised by the applicant in support of his claim for annulment must be considered.

The first plea in law, alleging breach of the right to be heard

67The applicant claims that the contested decision adversely affects him. As a result, he should have been given the opportunity to take a full position on the elements on which that decision was based. In particular, the Director had not communicated to him, despite his insistence and the agreement of two witnesses, the minutes of the interviews of the persons she had heard. According to the applicant, if he had had access to the full text of their statements or, at the very least, to a detailed summary of them, he would have been able to give his opinion on them, which might have led the Director to take a different decision. Furthermore, it would appear from the wording of the Director’s letters of 15 and 21 March 2019 (see paragraphs 30 and 33 above) that she had already reached her decision before hearing the applicant at the meeting held on 25 March 2019.

ECDC contends that the first plea in law is entirely unfounded.

69It should be noted that a person who, on the basis of Articles 12a and 24 of the Staff Regulations, has lodged a request for assistance on the ground that he or she is being subjected to psychological harassment may rely on the right to be heard on the facts concerning him or her, in accordance with the principle of good administration (see judgment of 4 June 2020, SEAE v De Loecker, C‑187/19 P, EU:C:2020:444, paragraph 66 and the case-law cited).

70Article 41(2)(a) of the Charter provides that the right to good administration includes the right of every person to be heard before an individual measure which would adversely affect him or her is taken.

71The right to be heard guarantees every person the possibility of making his or her views known, in a useful and effective manner, during the administrative procedure and before the adoption of any decision which may adversely affect his or her interests (see judgment of 4 June 2020, SEAE v De Loecker, C‑187/19 P, EU:C:2020:444, paragraph 68 and the case-law cited).

72The right to be heard has a dual purpose. First, it serves to investigate the case and establish the facts as accurately and correctly as possible and, secondly, it ensures effective protection of the person concerned. The right to be heard is intended in particular to ensure that any decision adversely affecting the person concerned is adopted in full knowledge of the facts and is intended, in particular, to enable the competent authority to correct an error or the person concerned to put forward the factors relating to his or her personal situation which militate in favour of the decision being taken, not being taken or having a particular content (see judgment of 4 June 2020, EEAS v De Loecker, C‑187/19 P, EU:C:2020:444, paragraph 69 and the case-law cited).

73In the present case, the contested decision, as supplemented by the decision rejecting the complaint, constitutes an individual measure taken in respect of the applicant and adversely affecting him within the meaning of Article 41(2)(a) of the Charter, so that that provision was applicable in this case.

74It should be noted that the rejection of the second request for assistance was based on the absence of prima facie evidence of the existence of slander and harassment, without an administrative investigation having been initiated. It is against this background that it is necessary to examine whether the applicant’s right to be heard was respected.

75In that regard, it should be noted that, after announcing in the second letter of 18 May 2018 her intention to close the second request for assistance (see paragraph 10 above), the Director reconsidered her position when the applicant, in substance, informed her of his dissatisfaction on 30 May 2018. On 1 June 2018, the Director invited him to fill in a form allowing him to provide further information. On reading that information, the Director, in her second letter of 20 June 2018, again invited the applicant to provide additional explanations or evidence about certain elements. After taking evidence from the persons whom the applicant had mentioned in the second request for assistance, the Director rejected that request by the decision of 7 September 2018. However, following the complaint lodged against that decision, the Director withdrew it in order to hear the applicant with regard to her intention to reject that request for assistance and on the elements she intended to take into consideration in that respect. Those elements were described in detail by the Director in her letters of 15 and 21 March 2019 (see paragraphs 30 and 33 above), which contained, inter alia, a summary in anonymous form of the evidence taken. The applicant, assisted by his lawyer, was able to express his views on those elements during a meeting with the Director on 25 March 2019.

76It follows from those elements that, clearly, no infringement of the applicant’s right to be heard can be found. The arguments he put forward in that regard do not call that conclusion into question.

77In the first place, as regards the argument that the Director had already taken her decision before hearing the applicant on 25 March 2019, it cannot succeed since the decision of 7 September 2018 was withdrawn by the Director on 6 March 2019 precisely in order to hear the applicant. In the subsequent exchanges which she had with the applicant prior to the adoption of the contested decision, the Director confined herself to referring to the decision which she intended to take, in particular in the light of the comments which the applicant was invited to make at the meeting on 25 March 2019.

78In the second place, with regard to the applicant’s argument concerning the identity of the witnesses who were heard by the Director, it should be noted that the list of names provided by the Director was exhaustive, contrary to what the applicant claims. Indeed, in her letters of 15 and 21 March 2019, the Director indicated that she had interviewed C, D, E, F, G and H. It is clear from the decision rejecting the complaint that those were the only witness statements she had gathered. The applicant’s complaint is therefore factually unsubstantiated.

79In the third place, with regard to the applicant’s argument that the full text of the records of the witness statements, or at least a more detailed summary of them, should have been communicated to him in order to respect his right to be heard, it has been held that, in order to guarantee the confidentiality of witness statements and the objectives that that confidentiality protects, while ensuring that the applicant for assistance is properly heard before a decision adversely affecting him or her is adopted, recourse may be had to certain techniques, such as anonymisation, or even disclosure of the substance of the evidence in the form of a summary, or the masking of certain parts of the content of the evidence (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).

80In the present case, it should be noted that, in the letter of 15 March 2019, the Director informed the applicant of the names of the persons she had interviewed and the period during which those interviews had taken place. Next, the Director provided the applicant with the substance of those witness statements in a summary in anonymous form, with due regard for the confidentiality of the witnesses, the proper conduct of the investigation and the protection of personal data. In particular, in that summary, she indicated that some witnesses had confirmed that the allegations of harassment as well as the investigation initiated following the first request for assistance had been discussed by the Head of Unit in one-to-one talks, but that the subject had never been raised in a wider context. She also stated that some witnesses had not spoken to the Head of Unit about the case at all and that in some cases the witnesses had reported rumours and what they had heard from third parties, so that they were not direct testimonies.

81Contrary to what the applicant claims, the summary of the witnesses’ statements sent to him provided a sufficient understanding of the scope of the witness statements for the purposes of examining whether or not there was prima facie evidence of the allegedly abusive conduct.

82In the fourth place, with regard to the applicant’s argument that the minutes of the interviews should in any event have been communicated to him after the decision rejecting the complaint, it was held that, in the context of a complaint of psychological harassment, the confidentiality of the evidence gathered should be guaranteed, save in special circumstances, even after the investigation has been closed, in so far as the prospect of a possible lifting of that confidentiality at the litigation stage could prevent the holding of neutral and objective investigations benefiting from the unrestrained cooperation of the persons called to be heard as witnesses (see, to that effect, judgment of 19 September 2018, Selimovic v Parliament, T‑61/17, not published, EU:T:2018:565, paragraph 79 and the case-law cited). In the present case, the applicant did not allege the existence of any special circumstances which would justify not guaranteeing the confidentiality of witnesses after the end of the proceedings. As a result, the proceedings did not justify the disclosure of the records of the witnesses’ statements.

83In the fifth place, the applicant claims that, in order to guarantee his right to be heard, the full witness statements should have been provided to him in accordance with Article 9(1)(b) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018, on the protection of individuals with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ 2018 L 295, p. 39).

84In that regard, it is sufficient to note that, under that provision, the transmission of personal data of third parties to recipients established in the European Union other than the institutions and bodies of the European Union requires, inter alia, that the recipient of those data establish that it is necessary for them to be transmitted for a specific purpose of public interest. However, the applicant alleges only a private interest purpose, which cannot justify the transmission of the personal data relating to the witnesses and the Head of Unit contained in the statements concerned (see, to that effect, judgment of 23 September 2020, Basaglia v Commission, T‑727/19, not published, EU:T:2020:446, paragraph 65).

85It follows from the above that the first plea in law must be rejected as manifestly unfounded.

The second plea in law, alleging a manifest error of assessment and infringement of Article 24 of the Staff Regulations

86In the context of the second plea in law, the applicant contests, in essence, the Director’s assessment that there was no prima facie evidence of the alleged improper conduct justifying the opening of an administrative investigation under Article 24 of the Staff Regulations.

87In the first place, as regards the exchanges between the Head of Unit and certain members of ECDC staff concerning the investigation report, first of all, the applicant contests the Director’s assertion, set out in the decision rejecting the complaint, that he was precluded from challenging the second letter of 5 April 2019, in which those exchanges were examined. Next, he asserted that, as he had not had access to the full list of witnesses interviewed or to all of their statements, he was unable to verify their truthfulness. Furthermore, the fact that the exchanges took place only in bilateral conversations does not diminish their prejudicial impact. Finally, the justification put forward by the Director, according to which the Head of Unit was seeking to defend himself and express his point of view on the situation he was facing, was unfounded. First, the allegations of the Head of Unit were untrue and, secondly, his attitude could not be justified.

88In the second place, with regard to the subsequent conduct of the Head of Unit, the request for assistance made by the latter on 29 May 2018 was purely retaliatory towards the applicant, which shows that the Head of Unit was still in a position to harass him. Furthermore, having always had access during his notice period to ECDC’s electronic communication tools, its intranet and its human resources software, the Head of Unit had the necessary tools to continue to harass the applicant. According to the latter, the situation was only resolved after he learned that the Head of Unit had definitively left ECDC on 15 March 2019.

89In the third place, the applicant claims that the Director deliberately failed to take into consideration the complaint made in his second request for assistance that it appeared to him that the Head of Unit had reduced the number of reclassification points which his immediate superior had awarded him.

90ECDC contests the applicant’s arguments. In particular, it points out that the complaints directed against the second letter of 5 April 2019 are inadmissible. As regards the applicant’s complaints concerning the analysis made by the Director as to the absence of prima facie evidence of the alleged abusive conduct, ECDC considers that they are unfounded.

91It should be noted that, according to the case-law mentioned in paragraph 63 above, in the case of a request for assistance, the competent authority is not obliged to carry out an administrative investigation on the basis of mere allegations without evidence.

92In the second request for assistance, first, the applicant complained of certain statements about him made by the Head of Unit to third parties in the context of the investigation report to the effect that his first request for assistance contained false accusations by an employee who was unhappy at not having obtained a post as Deputy Head of Unit. In support of that accusation, the applicant described his own understanding of the facts and provided a list of persons who he believed could corroborate his claims. All those persons were interviewed by the Director. As indicated in paragraph 78 above, those were the only witness statements that were taken, contrary to what the applicant suggests. Moreover, the truthfulness of those witness statements is verifiable by the latter, inasmuch as the witnesses were named and the Director provided the applicant with a summary of their statements.

93As is apparent from the letter of 15 March 2019, the Director found that some witnesses had not spoken with the Head of Unit about the investigation in question. Others claimed to have heard rumours without having spoken to him directly. Those findings are not contested by the applicant in the present action. He relies solely, before the Court, on the evidence which, according to the Director, revealed that the Head of Unit had spoken about the investigation with certain persons on a one-to-one basis, but never in a wider context or in public. In the latter respect, the applicant submits that the bilateral nature of those conversations does not diminish their prejudicial nature. However, the applicant provides no evidence to suggest that, in the context of those conversations, the Head of Unit made serious accusations capable of calling into question his professional reputation, falling within the scope of Article 24 of the Staff Regulations, or of undermining his personality, dignity or mental integrity within the meaning of Article 12a(3) of the Staff Regulations. It follows that the witness statements collected by the Director at the applicant’s request do not constitute prima facie evidence of the alleged abusive conduct.

94Secondly, in the context of his complaint against the contested decision and before the Court, the applicant claimed that the request for assistance submitted by the Head of Unit on 29 May 2018 perpetuated the harassment to which he had been subjected by the latter. However, it is apparent from the file produced before the Court that that request was not directed against the applicant, but denounced a leak of confidential information to the media and anonymous threats which the Head of Unit had allegedly received. The applicant does not dispute the existence of that leak of confidential information. Moreover, it should be pointed out, as ECDC did, that the administrative investigation initiated following the request for assistance from the Head of Unit was closed without action.

95Thirdly, the applicant claimed on several occasions, including before the Court, that he felt threatened by the Head of Unit’s ability to have full access to ECDC’s IT and communication tools during his period of notice. However, he did not provide the Director with any prima facie evidence of inappropriate use of those tools by the Head of Unit.

96Fourthly, as regards the argument that the Director did not respond to the complaint relating to the reduction by the Head of Unit of the number of reclassification points which the applicant’s direct superior had granted him, it must be observed that that complaint, which was briefly formulated on 7 June 2018 in the additional information form, was not in any way substantiated thereafter, despite the steps taken by the Director to hear the applicant before the second request for assistance was rejected by the contested decision.

97In those circumstances, the applicant has clearly failed to provide any prima facie evidence of the abusive conduct alleged in the second request for assistance.

98The second plea in law must therefore be rejected as manifestly unfounded, without there being any need to examine the plea of inadmissibility raised by ECDC with regard to the complaints raised by the applicant against the second letter of 5 April 2019.

The third plea, alleging breach of the duty of care

99The applicant claims that, even though the two requests for assistance he had submitted gave rise to two separate proceedings, the Director should, by virtue of the duty of care, have given more attention to the second request for assistance, particularly in view of his poor state of health, which he had already mentioned in the context of the first request for assistance.

100ECDC contends that that plea in law is also entirely unfounded.

101According to settled case-law, the duty to have regard for the welfare of officials, while not mentioned in the Staff Regulations, reflects the balance of reciprocal rights and obligations which those texts have created in the relationship between the public authority and its staff. That duty and the principle of good administration imply in particular that, when deciding on the situation of a staff member, the authority must take into consideration all the factors which are likely to determine its decision and that, in so doing, it must take account not only of the interests of the service but also of those of the staff member concerned (see judgment of 7 November 2019, WN v Parliament, T‑431/18, not published, EU:T:2019:781, paragraph 105 and the case-law cited).

102Moreover, the obligations arising for the administration from the duty of care are substantially reinforced where the situation of a member of staff whose health, whether physical or mental, is shown to be affected is involved (see judgment of 7 November 2019, WN v Parliament, T‑431/18, not published, EU:T:2019:781, paragraph 106 and the case-law cited).

103In the present case, it must be noted, like ECDC, that the Director showed particular care in handling the applicant’s second request for assistance.

104Nine days after that request was made, the Director informed the applicant that he would receive a reply within four months. While, by letter of 18 May 2018, the Director informed the applicant of her intention to close the examination of the second request for assistance following the Head of Unit’s resignation, she nevertheless invited the applicant to let her know whether he considered that he had been sufficiently assisted and immediately reconsidered her position when the applicant informed her of his dissatisfaction on 30 May 2018.

105As noted in paragraph 75 above, the Director, on her own initiative, subsequently asked the applicant to supplement the information he had provided and asked him additional questions aimed at clarifying the facts and enabling him to provide evidence. She heard all the witnesses mentioned by the applicant in relation to the statements which the Head of Unit had made about the applicant in connection with the investigation report.

106After rejecting the second request for assistance by the decision of 7 September 2018, the Director again reconsidered her position and thereby withdrew that decision, in order to hear the applicant in a hearing. To that end, she described in detail the evidence she intended to take into account and explained to the applicant, on two occasions, why she could not provide him with the records of the interviews she had had with the witnesses. In response to an observation by the applicant, the Director also informed him that the Head of Unit had not been heard on the allegations made in the context of the second request for assistance.

107In those circumstances, even assuming that the applicant’s state of health had been affected, the Director had clearly fulfilled her obligation under the duty of care.

108The third plea in law must, therefore, be rejected as manifestly unfounded.

109Consequently, the claims for annulment of the contested decision and of the decision rejecting the complaint must be rejected as manifestly unfounded.

The claim for damages

110The applicant seeks compensation for the non-material damage which he allegedly suffered as a result of the Head of Unit’s actions, assessed ex aequo et bono at the sum of EUR 75 000.

111In particular, the applicant claims that the harassment and slander to which he was subjected began with the opening of the investigation into the first request for assistance, in the course of October 2017, and ended after the Head of Unit’s definitive departure on 15 March 2019. The latter’s attacks allegedly caused the applicant a strong feeling of insecurity and made any professional decision taken in the presence of the Head of Unit burdensome. Accordingly, the applicant claims compensation of EUR 30 000 per year for the non-material damage which he suffered during that period, the total amount in that respect being assessed ex aequo et bono at EUR 45 000.

112In addition, the applicant seeks ‘compensation for his long battle’ for recognition of his status as a victim in relation to the actions of the Head of Unit. The non-pecuniary damage caused by that ‘battle’ was allegedly aggravated by the opening of an investigation following the Head of Unit’s request for assistance, as the applicant had not been informed of its outcome at the time the action was brought. When the Director decided to initiate that second investigation, while the applicant’s second request for assistance was rejected without the opening of an investigation, he felt that he had been penalised once again. The applicant seeks compensation for this additional non-material damage, assessed ex aequo et bono at the sum of EUR 30 000.

113ECDC contends that the claims for damages should be rejected as manifestly unfounded.

114First of all, it should be recalled that the pre-litigation procedure for actions for damages differs according to whether the damage for which compensation is sought results from an act adversely affecting an official within the meaning of Article 90(2) of the Staff Regulations or from conduct on the part of the administration which does not constitute a decision. In the first case, it is for the person concerned to lodge a complaint against the act in question with the appointing authority or, as the case may be, the authority authorised to conclude contracts (‘the AECE’) within the time limits laid down. In the second case, by contrast, the administrative procedure must begin with the submission of an application within the meaning of Article 90(1) of the Staff Regulations seeking compensation and continue, where appropriate, with a complaint against the decision rejecting that application (see, to that effect, judgment of 13 December 2012, A v Commission, T‑595/11 P, EU:T:2012:694, paragraph 111 and the case-law cited).

115Furthermore, claims for compensation for material or non-material damage must be dismissed where they are closely linked to claims for annulment which have themselves been rejected either as inadmissible or as unfounded (see judgment of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraph 69 and the case-law cited).

116In the present case, as is apparent from the examination of the second plea in law in support of the application for annulment (see paragraphs 91 to 97 above), the applicant has failed to provide any prima facie evidence of the abusive conduct alleged in the context of the second request for assistance. The claim for compensation relating to an amount of EUR 45 000, referred to in paragraph 111 above, is closely linked to the claims for annulment, since it is based on that improper conduct. That claim must therefore be rejected as manifestly unfounded.

117As regards the second claim for compensation, referred to in paragraph 112 above, relating to an additional amount of EUR 30 000, it should be noted that it is the first time that the applicant has brought it before the Court.

118In accordance with the case-law referred to in paragraph 114 above, the introduction of that claim for compensation should have been preceded by an administrative procedure beginning with a request by the applicant inviting the AECE to make good the damage apparently suffered as a result of the faults and irregularities alleged and continuing, where appropriate, with a complaint against the decision rejecting that request (see, to that effect, judgment of 13 December 2012, A v Commission, T‑595/11 P, EU:T:2012:694, paragraph 118 and the case-law cited). However, no such request was made by the applicant before the AECE.

119Therefore, since the administrative procedure made mandatory by the provisions of the Staff Regulations was not initiated by the applicant with regard to the claim for compensation referred to in paragraph 112 above, that claim must be rejected as manifestly inadmissible.

120In any event, even if that claim were related to the decision rejecting the complaint, it is manifestly unfounded, since the claims for annulment against that decision were not upheld.

121It follows from all the foregoing considerations that the action must be dismissed in its entirety as being partly manifestly inadmissible and partly manifestly lacking in any foundation in law.

Costs

122Under 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.

123Since the applicant has been unsuccessful, he must, having regard to the form of order sought by ECDC, be ordered to pay the costs.

On those grounds,

hereby :

1.Dismisses the action;

2.Orders AI to pay the costs.

Luxembourg, 14 July 2021.

Registrar

President

—

Language of the case: English.

Confidential information omitted.