Gyarmathy v EMCDDA (Judgment) [2015] EUECJ F-79/13 (18 May 2015)

Judgment By application received at the Tribunal Registry on 12 November 2013, Ms Gyarmathy has brought the present action seeking the annulment of several decisions adopted by the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA, or ‘the Monitoring Centre’) concerning a request for assistance in respect of alleged psychological harassment and the decision not to renew her contract as a member of the temporary staff. The applicant also seeks compensation in respect of the non-material and material harm which she considers herself to have suffered on account of the contested decisions. Factual background to the dispute The applicant was recruited by the EMCDDA on 1 May 2008 as a member of the temporary staff at grade AD 8 within the meaning of Article 2(a) of the Conditions of Employment of Other Servants of the European Union, for a five-year term, in order to perform the functions of a drug analyst and scientific writer. She was initially assigned to the Interventions, Law and Policies unit of the EMCDDA, then, from 1 October 2010, to the Policy, Evaluation and Content Coordination unit (‘the POL unit’), of which Mr A had been appointed Head of Unit on 2 September 2010. On 22 February 2012, the applicant received her appraisal report in respect of 2011. However, given that, on account of a number of periods of sick leave and a period of maternity leave, she had worked only 34 days in 2011, Mr A, her line manager, and Mr B, the Director of the Monitoring Centre, decided to carry out a fresh assessment of her performance in mid-2012. On 20 July 2012, the applicant received her mid-term appraisal report covering the first six months of 2012 (‘the contested appraisal report’), drawn up by Mr A. On 27 July 2012, the applicant sent an e-mail to the Director of the EMCDDA expressing her disagreement with the appraisal of her performance as set out in the contested appraisal report. In addition, the applicant reported the existence of a hostile working environment and, in particular, a very difficult relationship with Mr A and requested her immediate transfer to a different unit (‘the e-mail of 27 July 2012’). On 31 July 2012, she sent the same comments to Mr A. By letter of 11 September 2012, the Director of the EMCDDA informed the applicant that he had discussed her allegations against Mr A and her request to be transferred to a different unit with the Scientific Director of the Monitoring Centre, with Mr A and with the Head of the Administration unit, and that it was not possible to give a positive follow-up to her request for a transfer (‘the decision of 11 September 2012’). The applicant submits that, at a meeting on 14 September 2012, the Director of the EMCDDA informed her of his decision not to renew her contract as a member of the temporary staff which would expire on 30 April 2013. By a note of the same day, the Head of the Human Resources Management Sector of the Administration unit of the Monitoring Centre reminded the applicant that, in accordance with the information communicated by the Director at the meeting of 14 September 2012, her contract would expire on 30 April 2013 (‘the note of 14 September 2012’). On 10 December 2012, the applicant sent a letter entitled ‘[C]omplaint’ to the Director of the EMCDDA, in which, first, she again complained of conduct constituting psychological harassment on the part of Mr A and, secondly, she criticised the Director for not taking appropriate action following her verbal and written requests concerning the mistreatment to which she had allegedly been subject on the part of Mr A. She alleged in particular that the Director had neither initiated an inquiry into Mr A’s behaviour nor adopted appropriate measures to ensure that she was treated with dignity and respect. Thirdly, she challenged the decision not to renew her contract as a member of the temporary staff (‘the letter of 10 December 2012’). By letter of 19 December 2012, the Director of the EMCDDA first informed the applicant of his intention to initiate, as soon as it was convenient, an inquiry into all her allegations. Next, he informed her of his decision to transfer her, with immediate effect, to a different unit. Lastly, he explained to her that the reason for the decision not to renew her contract as a member of the temporary staff was ‘the level of [her] performance, as documented in [her] … appraisal reports[,] and the difficulties identified in performing [her] tasks at the level required by the [EMCDDA], combined with the level of importance of the role of scientific writer … for the EMCDDA’ (‘the letter of 19 December 2012’). On 18 January 2013, the Chairman of the EMCDDA Management Board decided to open an administrative inquiry into the applicant’s allegations against Mr B, the Director of the Monitoring Centre. On 21 January 2013, Mr B decided, for his part, to open an administrative inquiry into the applicant’s allegations against Mr A. On 11 April 2013, the applicant received extracts from the reports of the two abovementioned administrative inquiries. So far as the inquiry into Mr A’s conduct towards the applicant is concerned, the investigator found that some of Mr A’s conduct constituted psychological harassment with respect to the applicant. So far as the inquiry into Mr B’s conduct was concerned, the investigator concluded that, even though the Director of the EMCDDA had not immediately granted the applicant’s request for transfer or opened an inquiry into her allegations of mistreatment on the part of Mr A, there was insufficient evidence to conclude that Mr B had breached his obligations. Moreover, according to the investigator, it was not possible to establish that the applicant was the victim of gender discrimination or retaliatory measures. On 29 April 2013, the applicant submitted her observations on the extracts of the inquiry reports which she had received. On 30 April 2013, the applicant’s employment contract expired and was not renewed. On 6 May 2013, the Director of the EMCDDA decided to remove Mr A from his post of Head of the POL unit and to reassign him to a post without managerial duties reporting directly to the Scientific Director of the Monitoring Centre. By letter of 13 May 2013, received by the applicant on 17 May 2013, the Chairman of the EMCDDA Management Board informed the applicant of his decision to close without follow-up the administrative inquiry into the allegations against Mr B, stating that ‘no failure to comply with the statutory and regulatory obligations [on the part of the Director of the Monitoring Centre]’ had been established. Nevertheless, he stated in the same letter that he considered it opportune to call Mr B’s attention to the need to make ‘additional efforts’ to improve the gender balance in managerial positions. In the same letter, he sent the applicant the conclusions of the report of the administrative inquiry. By letter of 25 June 2013, which the applicant received on 12 August 2013, the Director of the EMCDDA informed the applicant that he had concluded that: – there was no conclusive evidence that she had been the victim of mistreatment and harassment by Mr A; – there was sufficient evidence that Mr A had had to deal with and redress a clearly existing and proven situation of professional underperformance by the applicant; – the administrative inquiry had raised some concerns as regards the managerial capacity and performance of Mr A in respect of the sound, effective and efficient functioning of the POL unit and the management of some of its staff who reported to him. That situation fell beyond the scope of the inquiry and was likely to require that prudential and corrective measures be implemented separately. On 13 August 2013, the applicant submitted an application for legal aid for the purposes of bringing the present action. By order of 4 November 2013 in Gyarmathy v EMCDDA (F‑79/13 AJ), notified to the applicant on 7 November 2013, the President of the Tribunal acceded to her application, granting her a maximum amount of EUR 3000 in respect of legal aid. Forms of order sought and procedure The applicant claims that the Tribunal should: – annul the decision of 11 September 2012; – annul the note of 14 September 2012; – annul the decision of the Chairman of the EMCDDA Management Board of 13 May 2013 and the decision of the Director of the EMCDDA of 25 June 2013; – as a result, conduct ‘a new regular, unbiased and impartial investigation’; – order the payment of compensation in respect of the material harm suffered, assessed at EUR 430 202; – order the payment of compensation in respect of the non-material harm suffered, assessed at EUR 120 000; – order the EMCDDA to pay the costs; – by way of a measure of organisation of procedure, order the EMCDDA to produce ‘the full investigation report’. As is apparent from the acknowledgement of receipt of service of the application, the EMCDDA received this pleading on 31 December 2013. Accordingly, that party was duly served with the application within the meaning of Article 116(1), first subparagraph, of the Rules of Procedure then in force (now Article 121(1), first subparagraph, of the Rules of Procedure), relating to judgments by default. Although the time-limit of two months, together with the extension on account of distance by a single period of 10 days as provided for by Article 100(3) of the Rules of Procedure then in force (now Article 38 of the Rules of Procedure), for the purposes of lodging the statement in defence expired on 10 March 2014, at that date the EMCDDA had neither lodged that pleading nor requested any extension of the time-limit set. By letter of 25 March 2014, the applicant applied to the Tribunal, under Article 116(1) of the Rules of Procedure then in force, for judgment by default. By letter of 2 April 2014, the EMCDDA requested the Tribunal to find that the failure to lodge a statement in defence within the prescribed period was justifiable on the grounds of force majeure or excusable error. By letter of 24 April 2014, the Tribunal Registry informed the parties of the Tribunal’s decision to reject the request contained in the EMCDDA’s letter of 2 April 2014 and to apply Article 116 of the Rules of Procedure then in force and to close the written part of the procedure. By letter from the Registry of 8 July 2014, the Tribunal invited the applicant, pursuant to Article 116(2) of the Rules of Procedure then in force (now Article 121(2) of the Rules of Procedure) to submit her observations concerning the admissibility of the various pleas in her application. The applicant submitted her observations on 22 August 2014. Following the Tribunal’s decision of 17 September 2014 on the Composition of the Chambers and attachment of the Judges to Chambers (OJ 2014 C 342, p. 5), the composition of the Second Chamber, to which the present case had been allocated, was altered. Law Since the formalities have been complied with, it is for the Tribunal, under Article 121(2) of the Rules of Procedure, to consider whether the application is admissible. To that effect, the Tribunal has decided not to open the oral part of the procedure, as it considers that it has sufficient information at its disposal in the application and in the observations submitted by the applicant at the Tribunal’s request. The claim for annulment of the decision of 11 September 2012 The applicant seeks the annulment of the decision of 11 September 2012 in so far as the Director of the EMCDDA rejected the request for assistance she presented in her e-mail of 27 July 2012. Specifically, the applicant criticises the Director of the EMCDDA for rejecting the request she had made in the e-mail of 27 July 2012 for a transfer and for failing to open an inquiry investigating Mr A following the allegations of mistreatment made in that e-mail. The Tribunal recalls at the outset that a request for assistance under Article 24 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) includes not only a request made by an official or other member of staff claiming that he or a member of his family is currently being subjected, by reason of his position or duties, to threats, insulting or defamatory acts or utterances, or any attack to person or property, but also any request by an official inviting the administration to take a decision or pay compensation pursuant to Article 24 of the Staff Regulations, even where the infringing behaviour has come to an end (judgment in Faita v EESC , F‑92/11, EU:F:2013:130, paragraph 48). It is sufficient for that purpose that the official or staff member who is seeking the assistance of his institution under Article 24 of the Staff Regulations submit a request to that effect, in accordance with Article 90(1) of the Staff Regulations, containing at least some evidence of the reality of the attacks of which he claims he was the victim. When such evidence is provided, the institution concerned is under an obligation to take the necessary measures, in particular to undertake an inquiry, with the cooperation of the complainant, to determine the facts which gave rise to the complaint. The obligation to provide assistance includes, in particular, the duty of the administration to examine seriously, expeditiously and in total confidentiality a complaint of psychological harassment and to inform the complainant of the action taken in respect of the complaint (judgment in Klug v EMEA , F‑35/07, EU:F:2008:150, paragraph 74 and the case-law cited therein). In the present case, although the e-mail of 27 July 2012 (see paragraph 5 above) is presented in the form of observations on the contested appraisal report, the applicant in that e-mail describes a situation of conflict with Mr A and clearly requests intervention by the Director of the EMCDDA. Specifically, the applicant complains vigorously that Mr A’s actions with regard to her constituted ‘micromanagement’, alleging that he came to her office several times a day to inquire what she was doing. She describes that conduct as ‘harassment’. The applicant also asserts that Mr A exhibited a ‘hostile attitude’ towards her which was ‘completely unacceptable and intolerable’ and that she had suffered mistreatment at his hands from the time she was assigned to his unit. Lastly, she states that she contacted members of the Human Resources Management Sector repeatedly to obtain assistance but, since this produced no results, she was obliged to inform the Director of the EMCDDA of the situation and to request a transfer to another unit. It must therefore be held that the applicant, in the e-mail of 27 July 2012, was effectively seeking the assistance of the Monitoring Centre and adduced some evidence of the reality of the mistreatment of which she claimed to have been the victim. Consequently, that e-mail did indeed constitute a request for assistance within the meaning of Article 24 of the Staff Regulations. However, the pre-litigation procedure for the purposes of obtaining the assistance of the Monitoring Centre was not initiated correctly. The Director of the EMCDDA, in his letter of 11 September 2012 (see paragraph 6 above), informed the applicant that he had examined her allegations against Mr A but could not provide any follow-up and he expressly rejected her request for a transfer. That therefore constitutes an express decision rejecting the request for assistance made by the applicant under Article 24 of the Staff Regulations in the e-mail of 27 July 2012. The Tribunal notes that, in the letter of 10 December 2012, the applicant referred to the decision of 11 September 2012, although she did not expressly request its annulment, and criticised the Director of the EMCDDA for failing to take appropriate measures following her ‘verbal and written complaints’ concerning the mistreatment she claimed to have suffered on the part of her Head of Unit. That part of the letter of 10 December 2012 therefore constitutes a complaint against the decision of 11 September 2012 rejecting the request for assistance. Finally, following that complaint, the EMCDDA transferred the applicant to a different unit, by a decision of which she was informed by the letter of 19 December 2012, and opened two inquiries concerning the applicant’s various allegations, by decisions of 18 and 21 January 2013 respectively. It must therefore be held that the EMCDDA provided a positive follow-up to the applicant’s complaint against the decision of 11 September 2012 rejecting her request for assistance. The claim seeking the annulment of that decision of 11 September 2012 must, consequently, be declared inadmissible, in the absence of any act adversely affecting the applicant. For the sake of completeness, even if the applicant had intended to challenge the decisions referred to in paragraph 39 above, it must be stated that she did not submit her application for legal aid until 13 August 2013, thus well after the expiry of the period of three months and ten days allowed for the purposes of bringing an action against those decisions. In those circumstances, the claim was brought out of time and is therefore inadmissible. The same is true if the applicant intended to challenge, in the letter of 10 December 2012, a possible implied decision rejecting the complaint made against the decision of 11 September 2012. Such an implied decision would have come into being on 10 April 2013 and should have been challenged on 22 July 2013 at the latest, 20 July being a Saturday. It follows that the claim for annulment of the decision of 11 September 2012 must be rejected. The claim for annulment of the note of 14 September 2012 The applicant claims that the Tribunal should annul the decision of the Monitoring Centre not to renew her contract, of which she was informed by the note of 14 September 2012. It must be recalled from the outset that, according to settled case-law, for the purposes of Article 90(2) of the Staff Regulations, only those acts or measures which have binding legal effects such as to affect the interests of an official or staff member by bringing about a distinct change in his legal position are acts adversely affecting officials. In the case of a member of staff subject to the Conditions of Employment of Other Servants of the European Union, such acts must have as their source the authority empowered to conclude contracts of employment and be in the nature of a decision. Moreover, an act which contains no new factor by reference to a previous act merely confirms the previous act and for that reason cannot have the effect of causing time to run anew for the purpose of bringing an action (judgment in Solberg v EMCDDA , F‑124/12, EU:F:2013:157, paragraph 16 and the case-law cited therein). Furthermore, an administrative complaint within the meaning of Article 90(2) of the Staff Regulations is made when the official or other member of staff reacts specifically against the measure taken with regard to him or, without expressly requesting that the decision in question be withdrawn, clearly manifests his intention to challenge the decision adversely affecting him (judgments in Davids v Commission , F‑105/11, EU:F:2012:84, paragraph 20, and Cuallado Martorell v Commission , F‑96/09, EU:F:2012:129, paragraph 60, which is the subject of an appeal pending before the General Court, Case T‑506/12 P). Lastly, the Tribunal has already held that a letter which merely reminds a member of staff about the provisions of his contract relating to the date of its expiry and containing no new factor by reference to those provisions is not an act adversely affecting that staff member. However, where the contract is renewable, the decision taken by the administration not to renew the contract constitutes an act adversely affecting the person concerned, distinct from the contract in question and capable of forming the subject-matter of a complaint, or even an action, within the periods prescribed in the Staff Regulations. Such a decision, which is adopted following a reconsideration of the interests of the service and of the situation of the staff member concerned, contains a new factor by reference to the initial contract and cannot be regarded as merely confirming that contract (judgments in Bennett and Others v OHIM , F‑102/09, EU:F:2011:138, paragraphs 57 to 59, and Solberg v EMCDDA , EU:F:2013:157, paragraphs 17 and 18). In the present case, the note of 14 September 2012 simply reminded the applicant that her contract would expire on 30 April 2013, while referring to the information given by the Director of the Monitoring Centre to the applicant at his meeting with her on 14 September 2012. However, it is apparent from the letter of 19 December 2012 that the applicant’s contract was not renewed because of her unsatisfactory performance, which means that the Director of the Monitoring Centre had examined the issue of whether or not that contract, which stipulated in Article 4 thereof that it was renewable, should be renewed. Consequently, the note of 14 September 2012 must be regarded as informing the applicant of the decision of the Director of the Monitoring Centre not to renew her fixed-term contract as a member of the temporary staff. That decision thus had the effect of depriving the applicant of a continued employment relationship within the EMCDDA and directly and immediately affected her interests by bringing about a distinct change in her legal position. It follows that the decision in question is an act affecting her adversely within the meaning of Article 90(2) of the Staff Regulations (judgment in Solberg v EMCDDA , EU:F:2013:157, paragraphs 20 and 21). The applicant challenged the decision not to renew her contract in the letter of 10 December 2012, stating that this decision appeared ‘to be a retaliat[ory] measure’, that the note of 14 September 2012 did not contain ‘any grounds ... besides some vague statements about “[her] own interests”’, and that the decision had been adopted by ‘a team of management members with no female representation, and with the active involvement of the … person whom [she] was accusing [of harassment]’. That part of the letter of 10 December 2012 must therefore be considered to be a complaint against the decision not to renew the applicant’s contract, of which she was informed by the note of 14 September 2012. In the letter of 19 December 2012, the Director of the EMCDDA stated to the applicant that the fact her contract was going to expire on 30 April 2013 simply constituted the natural conclusion of the contract, as provided for in Article 4 thereof, and that the decision not to renew her contract was linked to the ‘level of [her] performance’. Accordingly, that letter contains an express decision rejecting the complaint made in the letter of 10 December 2012 and directed against the decision, of which the applicant was informed by the note of 14 September 2012, not to renew her contract. The applicant should therefore have brought an action against the decision rejecting her complaint within a period of three months and ten days of 19 December 2012, that is to say on 29 March 2013 at the latest. It follows that when the applicant submitted her application for legal aid on 13 August 2013, she was already time-barred from challenging the decision, of which she had been informed by the letter of 19 December 2012, rejecting her complaint. The claim directed against the decision not to renew the applicant’s contract, of which she was informed by the note of 14 September 2012, is thus out of time and must accordingly be rejected as inadmissible. The claims for annulment of the decision of the Chairman of the EMCDDA Management Board of 13 May 2013 and the decision of the Director of the EMCDDA of 25 June 2013 The applicant challenges the decision of the Chairman of the EMCDDA Management Board of 13 May 2013 to close without follow-up the inquiry opened against Mr B, on the ground that there had been no failure by the latter ‘to comply with the statutory and regulatory obligations’. She also challenges the decision of the Director of the EMCDDA of 25 June 2013 to close without follow-up the inquiry into the behaviour of Mr A, on the ground that there was no conclusive evidence that the applicant had been the victim of psychological harassment. It must be pointed out that, according to the case-law, only acts or decisions producing binding legal consequences likely directly and immediately to affect the applicant’s interests by significantly changing his legal situation may be the subject of an action for annulment (see judgment in Labiri v EESC , F‑124/10, EU:F:2013:21, paragraph 42 and the case-law cited therein). A decision to close without follow-up an inquiry opened on the basis of a request for assistance affects the applicant adversely inasmuch as it constitutes a decision to reject the request for assistance (judgment in Labiri v EESC , EU:F:2013:21, paragraph 53). It follows that the decisions of 13 May 2013 and 25 June 2013 are acts affecting the applicant adversely within the meaning of Article 90(2) of the Staff Regulations. Therefore, in order to challenge them the applicant should have submitted a complaint concerning them under Article 90(2) of the Staff Regulations, and challenged before the Tribunal any implied or express decision rejecting her complaint. It is apparent from the observations lodged by the applicant on 22 August 2014, concerning the admissibility of the application, that she submitted a complaint on 12 August 2013 against the decision of the Chairman of the EMCDDA Management Board of 13 May 2013 and a complaint on 25 October 2013 against the decision of the Director of the EMCDDA of 25 June 2013. However, the four-month periods allowed to the administration under Article 90(2) of the Staff Regulations for the purpose of replying to those two complaints expired on 12 December 2013 and 25 February 2014 respectively, that is to say, after the initiation of the proceedings in the present action. It follows that the action, brought on 12 November 2013, is premature so far as concerns the claims for annulment of the decisions of the Chairman of the EMCDDA Management Board and of the Director of the EMCDDA, of 13 May 2013 and 25 June 2013 respectively. Consequently those claims must be rejected as inadmissible. The claim seeking that a new investigation be conducted The applicant requests that ‘a new regular, unbiased and impartial investigation’ be conducted. It must be pointed out that it is not for the Tribunal, in an action brought under Article 90 of the Staff Regulations, to issue injunctions to the EU institutions (judgment in Da Silva Pinto Branco v Court of Justice , F‑52/09, EU:F:2010:98, paragraph 31 and the case-law cited therein). This claim must therefore be dismissed as inadmissible. The claims for compensation The applicant claims that the decision not to renew her contract caused her material harm, amounting to EUR 430 202, consisting in the loss of her income. The applicant also seeks compensation in respect of the non-material harm she claims to have suffered on account of the contested decisions. First, she claims that she incurred non-material harm resulting from the uncertainty, the anxiety and the pain and suffering caused by the illegalities vitiating the contested decisions and estimates that harm, which is incapable of being entirely remedied by the annulment of the contested decisions, at EUR 50 000. Secondly, she seeks the award of EUR 70 000 as compensation for the non-material harm which she claims to have suffered on account of the illegalities vitiating the decision of the Chairman of the EMCDDA Management Board of 13 May 2013 to close without follow-up the inquiry into her allegations against Mr B. The Tribunal recalls that it is settled case-law that, where an application for damages is closely linked with an application for annulment, the rejection of the latter, either as inadmissible or as unfounded, also results in the rejection of the application for damages (judgment in BM v ECB , F‑106/11, EU:F:2013:91, paragraph 69). In the present case, since the claims for compensation are closely linked with the claims for annulment, which have all been rejected as inadmissible, the claims for compensation must also be rejected. It follows from all the foregoing that the action must be dismissed in its entirety. Costs Under Article 101 of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is to bear his own costs and to be ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. Under Article 102(1) of the Rules of Procedure, the Tribunal may decide, if equity so requires, that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or even that he is not to be ordered to pay any costs. Lastly, under Article 102(2) of the Rules of Procedure, a successful party may be ordered to bear his own costs and to pay some or all of the costs incurred by the other party if this appears justified by the conduct of that party, including before the proceedings were brought, especially if he has made the other party incur costs which are held to be unreasonable or vexatious. As is apparent from the grounds set out in the present judgment, the applicant has been unsuccessful. It is evident that the EMCDDA, on which the application was duly served but which failed to submit a response, has not sought a form of order as to costs. The applicant, for her part, claims that the Tribunal should order the EMCDDA to pay all the costs, even in the event that the action is dismissed, on the ground that the EMCDDA failed to respond appropriately to her request for assistance, leaving her no other option than to submit a formal complaint. However, the present judgment shows that the applicant has either challenged acts which do not affect her adversely, submitted claims without waiting for the complaint to be rejected or submitted claims out of time. It is therefore apparent that the costs incurred by the applicant in bringing her action were not imputable to conduct by the EMCDDA and thus cannot be described as unreasonable or vexatious with regard to the applicant, so it is not appropriate to apply Article 102(2) of the Rules of Procedure. Lastly, no derogation from the rule laid down in Article 101 of the Rules of Procedure would be justified on grounds of equity. In those circumstances, under Article 103(3) of the Rules of Procedure, the parties are to bear their own costs. On those grounds, THE CIVIL SERVICE TRIBUNAL (Second Chamber) hereby: 1. Dismisses the action; 2. Declares that the parties shall bear their own costs. Bradley Kreppel Rofes i Pujol Delivered in open court in Luxembourg on 18 May 2015. W. Hakenberg K. Bradley Registrar President * Language of the case: English. © European Union The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice . This electronic version is not authentic and is subject to amendment. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII