Provisional text

delivered on 10 April 2025 (1)

Case C‑343/23 P

Jean-Marc Colombani

European External Action Service (EEAS)

( Appeal – Civil Service – European External Action Service (EEAS) – Officials – Article 24 of the Staff Regulations – Request for assistance – Article 12a(3) of the Staff Regulations – Psychological harassment – Rejection of request for assistance – Concept of harassment – Passive harassment – Collective harassment – Failure to intervene to prevent harassment – Culpable inaction – Complicity )

Introduction

1.By his appeal, Mr Jean-Marc Colombani (‘the appellant’) asks the Court, inter alia, to set aside the judgment of the General Court of the European Union of 22 March 2023, Colombani v EEAS. (2) In that judgment, the General Court dismissed the appellant’s action based on Article 270 TFEU seeking the annulment of the decision of the European External Action Service (EEAS) of 15 June 2021, which partially rejected his request for assistance of 18 February 2021 (‘the contested decision’) based on Article 24 of the Staff Regulations of Officials of the European Union, in the version applicable to the present proceedings (‘the Staff Regulations’).

2.In the present Opinion and in keeping with the Court’s request, I shall analyse whether the concept of harassment defined in Article 12a(3) of the Staff Regulations encompasses not only active and individual behaviour but also passive and collective behaviour and, in particular, the interplay between those two concepts in the context of the present proceedings. Rather than examining whether specific acts or omissions may constitute harassment, the present Opinion focuses primarily (3) on the question of whether failure to intervene to prevent harassment by others may itself constitute harassment. (4)

3.This case raises important questions as to what extent officials or members of staff whose individual actions and omissions do not constitute harassment per se may, by failing to intervene or to oppose such behaviour by others, be complicit in that behaviour and thus be guilty themselves of harassment. To what extent are officials or members of staff under a positive duty to oppose the harassment of a colleague by another? By failing to intervene, can an official or member of staff be ‘co-opted’ into the harassment and if so, under what circumstances?

Legal context

4.Article 31(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) provides that ‘every worker has the right to working conditions which respect his or her health, safety and dignity.’

5.Article 12a of the Staff Regulations states:

‘1. Officials shall refrain from any form of psychological or sexual harassment.

3. “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.

…’

6.Article 24 of the Staff Regulations provides that ‘the [European] Union shall assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties.’ That article states that the European Union ‘shall jointly and severally compensate the official for damage suffered in such cases, in so far as the official did not either intentionally or through grave negligence cause damage and has been unable to obtain compensation from the person who did cause it’.

Background to the dispute

7.The background to the present dispute is outlined in paragraphs 2 to 20 of the judgment under appeal. For the purposes of the present Opinion, I consider that the following matters are of relevance.

8.The appellant is an official of the EEAS. On 18 February 2021, he submitted a request for assistance pursuant to Article 24 of the Staff Regulations (‘the request for assistance’). The appellant alleged, inter alia, that he was subjected to psychological harassment by C, D, E and F in their capacity as his successive hierarchical superiors. C is the former Executive Secretary-General of the EEAS, D is one of the former Deputy Secretaries-General of the EEAS, E is one of the current Deputy Secretaries-General of the EEAS and F is the current Director-General for Budget and Administration. (5)

9.On 28 April 2021, the Director of Human Resources of the EEAS sent the appellant a preliminary analysis of his request for assistance. The appellant sent his comments on that preliminary analysis to the Director of Human Resources of the EEAS on 7 May 2021. On 15 June 2021, the appointing authority adopted the contested decision and rejected the appellant’s request for assistance in respect of D and F. In that regard, the appointing authority considered that the appellant had not adduced prima facie evidence that he had been the victim of psychological harassment by D and F.

10.The appointing authority opened an administrative investigation in respect of C and E on foot of the appellant’s request for assistance. (6)

The action before the General Court, the judgment under appeal and the appeal

11.On 3 March 2022, the appellant brought an action for annulment pursuant to Article 270 TFEU against, inter alia, the contested decision and an action for compensation for damage suffered as a result of the EEAS’s conduct. The appellant relied on seven pleas, the first five of which sought the annulment of the contested decision. By his second plea, the appellant claimed, in essence, that the EEAS had manifestly erred in concluding in the contested decision that he had failed to adduce prima facie evidence of harassment by D and F.

12.In the judgment under appeal, the General Court dismissed in its entirety the appellant’s action before it. On 31 May 2023, the appellant lodged an appeal against that judgment. The appellant relies on a number of grounds in support of his appeal. I shall, however, briefly summarise the appellant’s observations on passive and collective harassment. (7)

13.By his first ground of appeal, the appellant alleges, in essence, that the General Court erred in law when assessing his request for assistance in accordance with Article 24 of the Staff Regulations by limiting the concept of harassment to ‘individual autonomous and active behaviour’ and excluding from that concept passive and collective harassment.

14.The appellant highlighted the fact that his request for assistance also related to the passive behaviour of F, the Director-General for Budget and Administration, who, despite being in a position of authority, essentially tolerated the illegal discriminatory ‘volition’ or will of C, the former Executive Secretary-General of the EEAS. F’s passive behaviour de facto perpetuated and aggravated the harassment of the appellant by C. Given the number of persons involved and their hierarchical links (8) to C, the harassment instigated by the latter ‘became the work of the administration’.

15.D was also aware of the existence of systematic discriminatory practices against the appellant. Despite D’s prominent position as Deputy Secretary-General of the EEAS, he, together with F, failed to intervene in order to stop the discrimination in question. The appellant’s hierarchical superior, D, also contributed to the former’s marginalisation by failing to entrust him with tasks and by excluding him from meetings and information flow. The General Court erred in finding that the rejection of the appellant’s complaint against F and D was lawful without investigating their hierarchical superior and the main author and instigator of the harassment, C. In that regard, the finding that harassment could not be attributed to F and D individually was inadequate. The appellant submits that it is clear from the judgment in KF v EIB (9) that harassment can also be collective in nature and may be committed by several persons acting in a coordinated manner or, at the very least, in the same way. In the light of that judgment, an assessment of the overall conduct of the four persons in question should have been carried out in order to establish the existence of harassment.

16.The fact that behaviour is adopted by one person does not mean that it may not be attributable to another, in particular, where the behaviour involves joint perpetrators. (10) The General Court carried out an individual analysis of the alleged harassment. It failed to analyse the overall and collective context in which F and D’s actions took place in order to determine whether they, as hierarchical superiors of the appellant, acted appropriately and not abusively. (11)

17.By his second ground of appeal, the appellant alleges, inter alia, that the General Court erred in failing to take into account that the concept of ‘co-authorship/participation’ does not require active behaviour. Exclusion or marginalisation and thus harassment can result from inactivity or passivity. The appellant considers that D and F were complicit in C’s behaviour due to their culpable passivity.

18.The EEAS considers that the appeal is manifestly inadmissible and unfounded.

Assessment

19.In the present case, the appellant alleged in his request for assistance pursuant to Article 24 of the Staff Regulations (12) that he was psychologically harassed by four persons. It was thus incumbent on him to provide prima facie evidence of such harassment in the light of the definition thereof set out in Article 12a(3) of the Staff Regulations. Such evidence is a necessary condition for the opening of an administrative investigation pursuant to Article 24 thereof. (13)

20.The definition of psychological harassment set out in Article 12a(3) of the Staff Regulations is extremely broad and generic. (14) It does not target any particular form of behaviour or act but rather refers, (15) inter alia, to ‘any improper conduct’ that has the effect of undermining ‘the personality, dignity or physical or psychological integrity of any person’. (16) The fact that an official has difficult, or even conflictual, relations with his or her colleagues or superiors does not in itself constitute proof of psychological harassment. Moreover, negative comments addressed to an official or member of staff do not necessarily undermine his or her personality, dignity or integrity where they are formulated in measured terms and are not based on allegations that are unfair and have no connection with objective facts. (17)

21.The serious nature of psychological harassment and allegations thereof, from the perspective of both the alleged victim and the perpetrator, must be emphasised. (18) As regards the alleged perpetrator, a finding of psychological harassment may culminate in disciplinary proceedings and the imposition of a penalty. (19) The procedure intended to determine whether harassment has occurred must therefore respect the rights of the defence of the alleged perpetrator. The person against whom allegations of psychological harassment have been made (20) must, prior to the adoption of the decision adversely affecting him or her, receive all documents in the file, both inculpatory and exculpatory, concerning that harassment and be able to state his or her views on them. (21) The incorrect classification of behaviour as psychological harassment (22) may breach, at least by analogy, the principle nulla poena sine lege. (23)

22.Psychological harassment has an objective (24) element in that the conduct must be such that an impartial and reasonable observer, of normal sensitivity and in the same situation, would consider the behaviour or act in question excessive and open to criticism. It may, by definition, be the outcome of a set of different acts which, considered in isolation, would not necessarily constitute psychological harassment per se but which, viewed as a whole and in context, including because of their build-up over time, could be regarded as such. (25) The repetitive nature of the improper conduct is thus relevant. (26)

23.It is not necessary to establish that the physical behaviour, spoken or written language, gestures or other acts in question were committed with the intention of undermining the personality, dignity or physical or psychological integrity of a person. There can be psychological harassment without it being established that there has been any intention on the part of the harasser, by his or her conduct, to discredit the victim or deliberately impair the latter’s working conditions. It is sufficient that such conduct, provided that it was intentional, led objectively to such consequences. (27)

24.The broad scope of the definition set out in Article 12a(3) of the Staff Regulations is also evident from the examples of such behaviour found in point 2.1 of the annex to the Commission Decision of 26 April 2006 on the European Commission policy on protecting the dignity of the person and preventing psychological harassment and sexual harassment. (28)

25.I shall now examine in turn the concepts of collective harassment, passive harassment and the interplay between them, both in the abstract and in the context of the present appeal.

Collective psychological harassment

26.Psychological harassment can be collective and not just individual in nature. (29) Thus, harassment may be committed by several persons, belonging to the same institution, who act in a coordinated manner or, at the very least, in the same way. In the judgment in KF v EIB, the General Court examined not only the individual conduct of the alleged harassers – A and B – but also considered relevant a global assessment of the various acts of A and B. (30) In the judgment in XH v Commission, (31) the General Court examined, in the context of an allegation of collective harassment, whether there were ‘links’ between the alleged harassers. In that regard, the General Court held that it was not established that the alleged harassers acted within the framework of one and the same collective harassment. (32)

27.It follows, in my view, that collective harassment exists where the persons in question act in a concerted or coordinated manner or where, from an objective perspective, they act in unison, contemporaneously, intermittently or successively, in accordance with a common – albeit perhaps unspoken or tacit – framework. In the context of a request for assistance pursuant to Article 24 of the Staff Regulations in relation to alleged collective harassment, the appointing authority must ascertain whether there is prima facie evidence of such a common framework and, if so, examine globally all acts or conduct within that framework in order to ascertain whether they (in sum) constitute harassment. In the absence of such a common framework, the acts or conduct of individual members of staff cannot be conflated.

28.Although the acts or omissions of one official or member of staff may not suffice to find harassment, that conduct, together with the acts or omissions of another or other official(s) or member(s) of staff acting within a common framework may constitute harassment by all those officials or members of staff leading to their individual responsibility. The fact that the persons in question are in a hierarchical relationship will not excuse their improper conduct or prevent a finding of collective harassment.

29.While harassment may be collective, responsibility for such behaviour is individual or personal in nature and lies with individual officials or members of staff pursuant to Article 12a(1) of the Staff Regulations. In such instances, individual responsibility is, in principle, dependent on an official or member of staff making a relevant or non-negligible contribution to the collective harassment.

‘Passive’ psychological harassment

30.The concept of ‘any improper conduct’ in Article 12a(3) of the Staff Regulations is sufficiently broad to include behaviour which is subtle in nature and which takes the form, for example, of passive-aggressive behaviour, (33) gaslighting, (34) veiled hostility and the ‘ghosting’, marginalisation or exclusion (35)

) of an official or member of staff from information, work-flow, social interactions in the workplace and indeed work itself. These forms of ‘passive’ psychological harassment, which are characterised by both acts and omissions, are no less pernicious or insidious due to their ‘quieter’ nature. Indeed the veiled or covert nature of such behaviour may leave the victim without obvious or concrete evidence thereof and thus a corresponding means of redress, thereby leading to further isolation and distress in the workplace. (36)

31.‘Passive’ psychological harassment, however, must constitute ‘improper conduct’ and as such it has an active or quasi-active component, requiring the ‘positive’ intervention of the perpetrator. I consider, for example, that a refusal to communicate with someone or ignoring or isolating them, while passive in nature, has an ‘active’ or ‘quasi-active’ component.

32.The appellant claims, for example, that D contributed to his professional marginalisation by failing to entrust tasks to him and by excluding him from meetings and information flow. (37) I consider that the professional marginalisation of an official or member of staff may, if proven, and if it is sufficiently serious and prolonged, constitute psychological harassment within the meaning of Article 12a(3) of the Staff Regulations. The General Court, however, examined in detail – in paragraphs 46 to 53 of the judgment under appeal – whether the appellant had adduced prima facie evidence of such conduct and held that the appointing authority was entitled to take the view that such evidence had not been adduced. I therefore consider that the appellant is seeking a new assessment of the facts by the Court of Justice, without, however, demonstrating any distortion of the facts by the General Court. That claim falls outside the jurisdiction of the Court of Justice in the context of an appeal and is manifestly inadmissible. (38)

33.I shall now turn to the question of law raised by the appellant which is the main subject matter of the present Opinion.

The interplay between passive and collective harassment

34.The appellant’s submissions are based on the premiss that D and F were aware of improper conduct constituting harassment by C and E and failed to intervene. (39) In my view, in the absence of coordinated behaviour between the alleged harassers, (40) mere knowledge of and failure to intervene to prevent the improper conduct of others does not, in principle, constitute psychological harassment.

35.There are a plethora of potential (legitimate) reasons why officials and members of staff may refrain from opposing the actions or omissions of others. They may not intervene out of concern that they do not have full knowledge of or information on the matter. They may fear that they have misinterpreted the situation and thus that they may not act in a fully unbiased manner. Moreover, they may be wary of intervening for fear of exacerbating or calling unwarranted attention to the matter. While the lack of intervention by officials or members of staff who witness harassment may in certain instances be morally or indeed legally (41) reprehensible, that ‘passivity’ cannot, in principle, be transformed into something that it is not – namely – psychological harassment.

36.Thus, a failure to intervene to prevent harassment, in principle, cannot be conflated with such improper conduct since such failure lacks the necessary ‘active’ or ‘quasi-active’ component. Failure to intervene is, in principle, inherently distinct from harassment and should be viewed and assessed accordingly.

37.The present case, however, does not concern mere bystanders or witnesses of harassment but persons in a hierarchically superior position to the alleged victim of harassment or in a position of some hierarchical importance within the structure of the EEAS. It thus remains to be determined whether knowledge by an alleged victim’s hierarchical superior (in the present case, D) or a person with managerial responsibilities for officials or members of staff (in the present case, F) of harassment by others coupled with a failure to intervene to prevent such conduct is tantamount to harassment.

38.I do not perceive any compelling reason why my previous assessment should be amended and why the failure, inter alia, of a person’s hierarchical superior (42) to intervene in such circumstances should amount to harassment whereas the lack of intervention by other officials or members of staff would not. (43) All officials and members of staff, regardless of their grade and position, are bound by Article 12a(3) of the Staff Regulations. The definition of psychological harassment and the prohibition thereof apply equally to them. (44)

39.That being said, I consider that a caveat should be added to this assessment.

40.It cannot be excluded that in very specific circumstances, which have not to date been addressed in the case-law of the EU Courts, a failure to intervene, particularly by a person’s hierarchical superior, may itself constitute psychological harassment where it is borne out of malicious intent with the aim of undermining the personality, dignity or physical or psychological integrity of a person. (45) In addition, the failure to intervene must contribute to or encourage the harassment, for example, by giving the ‘active’ harasser a sense of impunity or ‘free rein’ given that their conduct is not ‘censured’ by the person in question. In that regard, the ‘passive’ harasser’s grade or position within the EU Civil Service may be relevant for assessing the reality of and the extent to which the failure to oppose the harassment contributed to or encouraged it.

41.While the appellant claims that D and F adhered to and perused the policy adopted by C of denigrating the appellant, I consider, in the light of the General Court’s assessment of the allegations in respect of D and F, (46) that no such conduct or malicious intent on their part can be found. (47)

42.It is important to stress that the failure to intervene to prevent psychological harassment, particularly by those in managerial positions, may nonetheless be culpable and breach other principles or provisions of the Staff Regulations.

43.A body such as the EEAS has a duty to have regard for the welfare of officials such as the appellant. This reflects the balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between a public authority and its staff. Like the right to good administration, that balance implies, in particular, that, when the relevant authority takes a decision concerning the situation of a member of staff, it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the member of staff concerned. (48) Failure to comply with that duty may, in certain circumstances, result in the non-contractual liability of the European Union. (49) Thus, a hostile or adverse working environment, which does not constitute harassment per se but results in an occupational disease, may lead the European Union to incur non-contractual liability.

44.Psychological harassment may, in certain cases, ‘constitute a serious failure to comply with the obligations of officials of the Union’ within the meaning of Article 22a(1) of the Staff Regulations. (50) It follows that officials and members of staff, and in particular those in positions of responsibility, must report serious psychological harassment where it is ‘detrimental to the interests of the Union’ to, inter alia, his or her hierarchical superiors or the European Anti-Fraud Office (OLAF). (51) Failure to report serious harassment by another may thus constitute a breach of Article 22a(1) of the Staff Regulations. (52)

45.In addition, Article 7(1) of the Staff Regulations provides that the appointing authority shall assign each official ‘to a post in his function group which corresponds to his grade’. If the administration is informed, including by means of a request classified by the person concerned as a ‘request for assistance’, for the purposes of Article 24 of the Staff Regulations, that an official or other member of staff is deprived of responsibilities corresponding to his or her grade and post and finds himself or herself without any task to perform, the administration must intervene and take the necessary and appropriate measures to remedy that situation which is contrary to the requirements of the Staff Regulations. It is irrelevant, in that regard, that such a situation is or is not the result of psychological harassment. Failure to intervene may constitute a service-related fault. (53)

Application of the interplay between the concepts of passive and collective harassment in the context of the present appeal

46.At no point in the judgment under appeal did the General Court exclude the concepts of passive and collective harassment from the definition of psychological harassment provided in Article 12a(3) of the Staff Regulations. In the light of my assessment of the concepts of passive and collective harassment and the interplay between them, I shall examine paragraphs 47, 53, 59 and 60 of the judgment under appeal, which were specifically highlighted by the appellant in the context of such harassment.

47.Contrary to the appellant’s submissions, the General Court did not err in paragraph 47 of the judgment under appeal by requiring the active participation of D in the alleged professional marginalisation of the appellant in order to infer harassment by the latter. In particular, the General Court correctly considered that D’s (mere) knowledge of the alleged harassment of the appellant by C and E did not constitute harassment. (54) The General Court did not err in paragraph 53 of the judgment under appeal in finding that the psychological harassment allegedly committed by C and E could not be imputed to D due to his failure to intervene despite being aware of that alleged conduct. In addition, the General Court did not err in paragraphs 59 and 60 of the judgment under appeal in considering that F’s passivity, despite having knowledge of the alleged misconduct of C and E, did not constitute harassment as F had not actually participated in that conduct. The references by the General Court in paragraphs 53 and 60 of the judgment under appeal to individual and personal conduct should not be read out of context. The General Court did not exclude the possibility of passive and/or collective harassment per se in those paragraphs, but rather rejected the existence of such harassment in the absence of any individual and personal involvement of D and F in that conduct.

Conclusion

–In the light of the foregoing considerations, I propose that the Court should dismiss the first ground of appeal, the first and seventh pleas of the first part of the second ground of appeal and the second plea of the second part of the second ground of appeal as unfounded.

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1Original language: English.

2T‑113/22, EU:T:2023:154 (‘the judgment under appeal’).

3See, however, point 32 of the present Opinion in which I examine alleged active participation in harassment.

4These issues were raised, inter alia, in the first ground of appeal, the first and seventh pleas of the first part of the second ground of appeal and the second plea of the second part of the second ground of appeal. See paragraphs 20 to 29, 33 to 40, 51 and 52 of the appeal. Given that there is considerable overlap between the arguments raised in those sections of the appeal, I consider it necessary to examine them together. In that regard, paragraphs 47, 53, 59 and 60 of the judgment under appeal are particularly relevant for the purpose of the present Opinion.

5It would appear from the file before the Court that E and F may currently have other positions.

6The General Court was not aware of the outcome of that investigation when the application was lodged before it. In particular, the General Court did not know whether the administrative investigation concluded that C and E had been in breach of Article 12a(3) of the Staff Regulations. See the judgment under appeal, paragraph 53. The appellant indicated in paragraph 11 of his appeal that E and C were informed on 25 October 2022 and 17 November 2022 respectively that the administrative investigation in respect of them had been closed without further action. See also, paragraphs 16 and 28 of Annex A5 to the appeal. This is not contested by the EEAS in the present appeal.

7The appellant calls into question, in particular, the use of the terms ‘actively participated’; ‘the individual and personal conduct of the alleged harasser’; and ‘active conduct’ in paragraphs 47, 53, 59 and 60 of the judgment under appeal.

8The persons in question were in a subordinate position to C.

9Judgment of 30 March 2022 (T‑299/20, ‘the judgment in KF v EIB’, EU:T:2022:171, paragraphs 126 and 127).

10Judgment of 6 April 2022, KU v EEAS (T‑425/20, EU:T:2022:224, paragraph 74).

11See paragraph 28 of the appeal.

12The duty to provide assistance laid down in Article 24 of the Staff Regulations is concerned with the defence of officials, by the institutions, against acts of third parties. Judgment of 25 March 1982, Munk v Commission (98/81, EU:C:1982:111, paragraph 21). Although the first paragraph of Article 24 is devised primarily to protect officials against attacks and maltreatment by third parties, it also imposes on the administration a duty to provide assistance in a case in which the perpetrator of the acts referred to by that provision is another official. Judgment of 14 June 1979, V. v Commission (18/78, EU:C:1979:154, paragraph 15). See also, judgment of the General Court of 12 July 2011, Commission v Q (T‑80/09 P, EU:T:2011:347, paragraph 66 and the case-law cited).

13Judgment of 7 December 2023, HV and HW v ECDC (C‑615/22 P, EU:C:2023:961, paragraph 46 and the case-law cited). However, exceptional circumstances may oblige the administration concerned to provide specific assistance not in response to a request from the individual concerned but on its own initiative. Judgment of 12 June 1986, Sommerlatte v Commission (229/84, EU:C:1986:241, paragraph 20). See also, judgment of the General Court of 13 July 2022, AI and Others v ECDC (T‑864/19, EU:T:2022:452, paragraph 147).

14Psychological harassment, in so far as it affects the health and dignity of the victim, constitutes a breach of the rights of workers for the purpose of Article 31(1) of the Charter. See, to that effect, judgment of the General Court of 13 July 2018, SQ v EIB (T‑377/17, EU:T:2018:478, paragraph 158). See also, in that regard, judgment of the Civil Service Tribunal of 11 July 2013, Tzirani v Commission (F‑46/11, EU:F:2013:115, paragraph 142).

15Article 12a(1) of the Staff Regulations confirms this interpretation as officials must refrain from any form of psychological harassment.

16In my view, harassment can extend to more than one person. In that regard, see judgment of the Civil Service Tribunal of 11 July 2013, Tzirani v Commission (F‑46/11, EU:F:2013:115, paragraph 89).

17This matter was correctly highlighted by the General Court in its judgment of 6 April 2022, KU v EEAS (T‑425/20, EU:T:2022:224, paragraph 122 and the case-law cited).

18See, by analogy, judgment of the General Court of 13 July 2018, SQ v EIB

(T‑377/17, EU:T:2018:478, paragraph 156).

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19See Annex IX to the Staff Regulations. As the General Court held, where the appointing authority considers, in response to a request for assistance for alleged acts of harassment, that it has before it sufficient evidence to warrant opening an administrative investigation, that investigation must be allowed to run its course so that the administration, enlightened by the findings of the investigation report, may adopt a definitive position in that regard, so that it may either decide that no action is to be taken on the request for assistance or, where the facts alleged are proven and come within Article 12a of the Staff Regulations, inter alia, decide that disciplinary proceedings are to be initiated so that, if appropriate, disciplinary penalties may be imposed on the alleged harasser. See the judgment in KF v EIB, paragraph 40 and the case-law cited. Given the fact that the investigation may result in disciplinary proceedings, the person accused of harassment has greater procedural rights than the complainant. See, to that effect, judgment of the General Court of 23 September 2015, Cerafogli v ECB (T‑114/13 P, EU:T:2015:678, paragraph 40).

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20The requirement to adduce prima facie evidence entails that an institution cannot be required to carry out an administrative investigation on the basis of mere allegations that are devoid of evidence. When assessing whether the alleged facts actually occurred as well as their scope, 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, to that effect, judgment of the General Court of 19 December 2019, ZQ v Commission (T‑647/18, EU:T:2019:884, paragraph 58).

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21See Article 41(2) of the Charter. See also, judgment of 25 June 2020, HF v Parliament (C‑570/18 P, EU:C:2020:490, paragraphs 57 to 69); and judgments of the General Court of 12 March 2025, Semedo v Parliament (T‑349/23, EU:T:2025:252, paragraph 30); and of 3 February 2021, Moi v Parliament (T‑17/19, EU:T:2021:51, paragraphs 99 to 103 and the case-law cited). Those judgments apply the principles laid down in that provision of the Charter in the specific context of allegations of harassment.

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22Which may culminate in disciplinary proceedings and the imposition of disciplinary measures pursuant to Article 9 of Annex IX to the Staff Regulations.

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23See also, by analogy, Article 49(1) of the Charter.

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24The case-law of the General Court places particular emphasis on the objective and ‘sufficient’ nature of the conduct. See, to that effect, judgment of the General Court of 13 July 2022, TL v Commission (T‑677/21, EU:T:2022:456, paragraph 57).

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25This stems from the broad definition of psychological harassment in Article 12a(3) of the Staff Regulations. See also, judgment of the General Court of 13 July 2018, Curtov Parliament (T‑275/17, EU:T:2018:479, paragraph 78 and the case-law cited).

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26See the wording itself of Article 12a(3) of the Staff Regulations. See also, to that effect, judgment of the General Court of 23 March 2022, NV v eu-LISA (T‑661/20, EU:T:2022:154, paragraph 113). Consequently, when examining whether the acts alleged constitute psychological harassment, those facts should be examined both individually and jointly as part of the general working environment created by the behaviour of one member of staff towards another. See, in that regard, judgment of the General Court of 6 April 2022, KU v EEAS (T‑425/20, EU:T:2022:224, paragraph 64). In my view, the repetitive nature of improper conduct is also relevant in the context of collective harassment.

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27See, to that effect, judgment of the General Court of 13 July 2022, TL v Commission (T‑677/21, EU:T:2022:456, paragraph 56 and the case-law cited). The Court of Justice has found that the concept of ‘psychological harassment’ must be understood, inter alia, as a process that occurs over time and presupposes the existence of repetitive or continual behaviour which is ‘intentional’, as opposed to ‘accidental’. See, to that effect, judgments of 12 November 2020, Pethke v EUIPO (C‑382/19 P, EU:C:2020:917, paragraph 96), and of 2 June 2022, EM v Parliament (C‑299/21 P, EU:C:2022:429, paragraph 102). While this definition excludes conduct that is accidental, the Civil Service Tribunal does not consider malicious intent on the part of the alleged harasser necessary for establishing psychological harassment under Article 12a(3) of the Staff Regulations. Judgments of 9 December 2008, Q v Commission (F‑52/05, EU:F:2008:161, paragraphs 133 to 139), and of 11 July 2013, Tzirani v Commission (F‑46/11, EU:F:2013:115, paragraph 52).

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28Decision C(2006) 1624/3 (‘the 2006 Commission Decision’). That decision was repealed by Commission Decision C(2023) 8630 final of 12 December 2023 on the prevention of and fight against psychological and sexual harassment (‘the 2023 Commission Decision’). Point 2.1 of the annex to the 2006 Commission Decision states that ‘psychological harassment can manifest itself in various forms, in particular by: offensive or degrading comments, in particular in public, bullying, antagonism, pressure, offensive behaviour, even refusal to communicate; insults relating to someone’s personal or professional competence; insulting or threatening remarks, both oral and written; belittling someone’s contributions and achievements; being isolated, set apart, excluded, rejected, ignored, disparaged or humiliated by their colleagues; impairing their social relations; setting unrealistic working objectives; contrary to their job description, not giving someone any work, or systematically giving them work which does not meet their profile. …’. See also, by analogy, Article 2(3) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16), which states that ‘harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States.’ The International Labour Organization stated, on page 3 of a document published on 24 July 2020 entitled ‘Safe and healthy working environments free from violence and harassment – The report at a glance’, that ‘violence and harassment in the world of work can be … psychological (e.g., verbal abuse, mobbing, bullying and cyberbullying; psychological harassment at work particularly can include manipulating a person’s reputation, isolating a person, withholding information, slandering and ridiculing, devaluating rights and opinions, setting impossible goals and deadlines, underutilising talent, etc.) …’ https://www.ilo.org/publications/report-summary-safe-and-healthy-working-environments-free-violence-and.

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29See the judgment in KF v EIB, paragraphs 126 and 127 and the case-law cited. Collective harassment is sometimes, but not exclusively, referred to as ‘mobbing’. See Leymann, H., ‘Mobbing and psychological terror at workplaces’, Violence and Victims, Vol. 5, No 2, Springer Publishing Company, 1990, p 120.

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30See also, judgment of 13 July 2022, TL v Commission (T‑677/21, EU:T:2022:456, paragraph 51), in which the General Court assessed the behaviour of the applicant’s line managers.

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31Judgment of 22 November 2023 (T‑613/21, EU:T:2023:739, paragraph 126 and 127). This case is currently under appeal before the Court of Justice. See OJ C C/2024/3148 of 21 May 2024.

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32See, by analogy, Article 7(b) and recital 24 of Directive (EU) 2024/1385 of the European Parliament and of the Council of 14 May 2024 on combating violence against women and domestic violence (OJ L 2024/1385), on, inter alia, the collective nature of cyber harassment.

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33Which is not directly confrontational.

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34Manipulative behaviour which undermines a person’s self-esteem and belief in his or her own observations.

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35In extreme cases, exclusion constitutes ostracism.

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36The establishment of the facts by the institution following the investigation is essential for the person who considers himself or herself to be a victim of harassment. A situation of harassment, if established, harms the personality, dignity and physical or psychological integrity of the victim and the recognition, following the administrative investigation, of the existence of psychological harassment is in itself likely to have a beneficial effect in the therapeutic recovery process of the victim. See judgment of 4 June 2020, EEAS v De Loecker (C‑187/19 P, EU:C:2020:444, paragraph 74).

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37See point 15 of the present Opinion.

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38Order of 20 May 2022, Germann Avocats v Commission (C‑233/21 P, EU:C:2022:409, paragraph 16).

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39It must be stressed, however, that in certain instances, unless an individual seeks informal redress or makes a request for assistance, his or her colleagues and/or hierarchical superiors may have no knowledge of or at best may only have indirect knowledge of the relevant circumstances based on ‘hearsay’ information. Such information, however, may be fragmented or incomplete and unreliable.

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40See point 27 of the present Opinion.

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41See points 42 to 45 of the present Opinion.

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42This is particularly the case in instances such as the present proceedings since it is unclear to what extent D and F could have opposed the alleged behaviour of C, their hierarchical superior.

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43I therefore agree with the EEAS’s submission in paragraph 65 of its defence that ‘it is not because an official claims to be the victim of harassment in generic terms that his or her hierarchical superior is the author of that harassment’.

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44In its judgment of 19 June 2024, TO v EUAA (T‑831/22, EU:T:2024:404, paragraphs 142 and 143), the General Court held that the failure of the applicant’s hierarchical superior to resolve a conflict between her and a colleague demonstrated at most ‘clumsy management’ but not improper conduct by her hierarchical superior. This was the case despite the fact that certain remarks made to the applicant, either by her colleague or by her hierarchical superior, could be perceived as inappropriate or threatening. The General Court considered nonetheless that they were insufficient to give rise to a climate of moral harassment. It is clear from paragraph 134 of that judgment that the applicant’s hierarchical superior had intervened at least to some extent (albeit in an ineffectual manner) to resolve the conflict.

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45This departs from the general rule that such intent is not required for a finding of psychological harassment. See point 23 of the present Opinion.

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46See, paragraphs 46 to 54 and 57 to 65 of the judgment under appeal.

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47See, for example, paragraph 51 of the judgment under appeal in which the General Court stated that in a 2018 evaluation report D had highlighted the need to offer the appellant the prospect of professional development. See, also, paragraph 59 of the judgment under appeal in which the General Court stated that F’s conversation with another colleague on the appellant’s lack of prospects of appointment to a position of responsibility was merely a subjective assessment of the appellant’s professional situation. In my view, those findings of fact by the General Court do not demonstrate malicious intent on the part of D and F.

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48See, to that effect, judgment of 29 June 1994, Klinke v Court of Justice (C‑298/93 P, EU:C:1994:273, paragraph 38). See also, judgment of the General Court of 4 July 2024, EUIPO v KD (C‑5/23 P, EU:C:2024:575, paragraph 66). The requirements of the duty to have regard for the welfare of its officials cannot, however, prevent the appointing authority from adopting the measures it believes necessary in the interests of the service. In that regard, see judgment of the Court of First Instance of 12 March 2008, Giannini v Commission (T‑100/04, EU:T:2008:68, paragraph 105).

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49See judgment of the Court of First Instance of 3 March 2004, Vainker v Parliament (T‑48/01, EU:T:2004:61, paragraph 125). While the Court of First Instance considered inter alia that the European Parliament’s ‘Jurisconsult’s conduct towards Mr Vainker cannot be considered to have amounted to harassment and bullying’ and held that Mr Vainker had not established that that institution had committed an unlawful act in connection with the onset of his occupational disease, that court nonetheless awarded Mr Vainker compensation for the damage suffered by him as a result of the irregularities attributable to the Parliament in the procedure for the recognition of the occupational origin of his disease. See also, judgment of the Civil Service Tribunal of 18 November 2014, McCoy v Committee of the Regions (F‑156/12, EU:F:2014:247, paragraphs 108 to 117 and 126 to 129).

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50See, judgments of 8 October 2014, Bermejo Garde v EESC (T‑530/12 P, EU:T:2014:860, paragraph 106), and of 3 October 2019, DQ and Others v Parliament

(T‑730/18, EU:T:2019:725, paragraph 62). In paragraph 124 of the former judgment, the General Court emphasised that the facts and the behaviour in question must be ‘serious’. See also, recital 13 of the 2023 Commission Decision which provides that ‘Staff members who have witnessed directly a behaviour that could qualify as harassment should act in accordance with Article 22a of the Staff Regulations.’

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The victim of harassment has a right, not an obligation, to report such behaviour pursuant to Article 22a of the Staff Regulations. See, to that effect, judgment of the General Court of 8 October 2014, Bermejo Garde v EESC (T‑530/12 P, EU:T:2014:860, paragraph 106).

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It also goes without saying that an official can refuse, on the basis of Article 21a of the Staff Regulations, to participate in psychological harassment.

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Judgment of 2 June 2022, EM v Parliament (C‑299/21 P, EU:C:2022:429, paragraphs 128 to 132).

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It must be stressed that the General Court previously examined in detail, in paragraph 46 of the judgment under appeal, the alleged professional marginalisation of the appellant by D himself.