Opinion of Advocate General Spielmann delivered on 22 May 2025

Data

Case date: 22 mei 2025

Uitspraak

OPINION OF ADVOCATE GENERAL

SPIELMANN

delivered on 22 May 2025 (¹)

Case C‑75/24 P

European Commission

( Appeal – Civil service – Officials – Alleged harassment during a period of sick leave – Request for assistance and claim for compensation – Rejection of the request and the claim )

Introduction

1. By her appeal, XH seeks the setting aside of the judgment of the General Court of the European Union of 22 November 2023, XH v Commission (T‑613/21, EU:T:2023:739) (‘the judgment under appeal’), by which the General Court dismissed her action (i) for the annulment of, first, Decision D/374/20 of the European Commission of 4 December 2020 rejecting her request for assistance (‘the decision rejecting the request for assistance’) and, second, Decision Ares(2021) 3466486 of the Commission of 21 May 2021 concerning the referral of her case to the Invalidity Committee (‘the decision opening the invalidity procedure’) and (ii) for compensation for the non-material damage she alleged to have sustained as well as for an order that the Commission pay the costs.

2. As requested by the Court, this Opinion will focus on the question of the taking into account of contextual factors in the case of a request for assistance, as provided for by Article 24 of the Staff Regulations of Officials of the European Union, in connection with alleged psychological harassment.

Legal framework

3. Article 12 of the Staff Regulations, in the version applicable to the facts of the case (‘the Staff Regulations’), provides that an official ‘shall refrain from any action or behaviour which might reflect adversely upon his position’.

4. Article 12a of the Staff Regulations is worded as follows:

‘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.

…’

5. Article 24 of the Staff Regulations provides:

‘The 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.

It 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.’

The background to the dispute

6. The appellant is an official in the European Anti-Fraud Office (OLAF).

7. Until 16 June 2020, she held the post of investigator in the unit formerly designated as Unit A of OLAF. Within that unit, she was handling, as lead investigator, three ongoing cases in particular, namely Cases E, F and G.

8. An internal reorganisation of OLAF came into effect on 16 June 2020. Following that reorganisation, and having regard to the preferences expressed by the appellant, she was assigned, as from that date, to a new unit within OLAF, namely Unit B.

9. From 2 until 22 June 2020, the appellant was on sick leave following a medical operation. An extension of that leave was granted for a continuous period from 23 June until 31 October 2020, by way of approval in the Commission’s human resource management information system called ‘Sysper 2’ (‘Sysper 2’), for the first time on 23 June 2020, in respect of the period from that date until 10 July 2020, for the second time on 14 July 2020, in respect of the period from 11 until 31 July 2020, for the third time on 4 August 2020, in respect of the period from 1 until 31 August 2020, for the fourth time on 1 September 2020, in respect of the period from that date until 30 September 2020, and for the fifth time on 1 October 2020, in respect of the period from that date until 31 October 2020.

10. On 2 June 2020, the appellant sent an email to members of Unit A, which contained a summary of Case E. In that email, she stated that she was on sick leave but that, as a matter of precaution in order to avoid delays, she would remain connected and open for any contact concerning those three cases.

11. On 8 June 2020, a member of Unit A sent an email to the appellant and to the Head of Unit A. That email concerned Cases E, F and G and contained comments and suggestions for the next stages. The Head of Unit A replied that, given the fact that the appellant was on leave, that member had to consult the future Head of Unit C (‘the Head of Unit C’), in order to find out whether she preferred to close the cases in question before the reorganisation of 16 June 2020 or to wait for the appellant’s return from sick leave, expected to be after that date. That member of Unit A sent an email to the Head of Unit C, copying in the appellant and the Head of Unit A. The appellant replied to that email stating that she expected that all cases could be closed without delay in the light of OLAF’s reorganisation and her sick leave. Furthermore, she stated that, even though she was on leave, she was open to receiving the final proposals concerning the cases in question so that they could be finalised.

12. Also on 8 June 2020, the appellant sent an email to a colleague entrusted with the role of ‘confidential counsellor’. In that email, the appellant sent him the exchanges referred to in point 11 of this Opinion and asked him for advice on her situation.

13. On the same day, the secretary to Unit A (‘the secretary of Unit A’) sent the appellant an email concerning the appellant’s change of office in connection with OLAF’s internal reorganisation, referred to in point 8 of this Opinion. In that email, she asked the appellant whether, in the light of her sick leave until 22 June 2020, she was willing to authorise a third person to move her belongings prior to that date. The appellant replied on the same day that she preferred to take care of that herself.

14. On 9 June 2020, the Head of Unit C replied to the emails referred to in point 11 of this Opinion. In her reply, she stated that, in the light of the circumstances, it seemed to her very difficult to close the cases in question before 16 June 2020. She stated that she found it realistic to close Case E in mid-July.

15. On 23 June 2020, the Head of Unit C sent an email to the appellant in order to discuss the draft final report in Case E. In that email, she asked the appellant to call her if available. On the same day, she sent the appellant an invitation to a video call scheduled for the following day, namely 24 June 2020. The appellant replied to that email on the following day, 24 June, stating that she was still on sick leave and that that invitation coincided with a medical appointment. She added that she would, however, be available the entire day on the following day for a discussion over the phone of the case in question.

16. Also on 23 June 2020, the appellant sent an email to the confidential counsellor, referred to in point 12 of this Opinion, containing the invitation by the Head of Unit C to the video call referred to in point 15 above. In that email, she explained that she had a scheduled hospital visit during her sick leave and that that invitation went beyond her capacity and was against the rules. She asked him to ‘notify [that conduct] as a harassment’.

17. On 30 June 2020, the secretary of Unit A sent the appellant a second email asking her whether she had reached a decision concerning her office move.

18. On 1 July 2020, the Head of Unit C sent the appellant two emails in which she asked the appellant questions concerning Case E. The appellant replied on 6 July 2020.

19. On 1 August 2020, the appellant lodged a request for assistance with the competent appointing authority, pursuant to Articles 24, 59 and 60 of the Staff Regulations. In her request, the appellant stated, in essence, that the emails that she had received during her sick leave constituted requests from the OLAF hierarchy or staff to work or to go immediately to her office in order to prepare her belongings for the office move, which she considered to be attempts to interrupt or terminate her sick leave.

20. On 26 August 2020, the Head of Unit C sent the appellant an email which contained a new draft final report in Case E. In that email, the Head of Unit C asked the appellant, first, whether she approved of the report’s contents and, second, if she could carry out a check with the European Patent Office (EPO). The appellant replied to her that she was still on sick leave. In a second email, the Head of Unit C stated that she had sent her first email for it to be dealt with by the appellant upon her return. The appellant replied on 28 August 2020, stating that she did not think it necessary to wait for her return in order to finalise the reports at issue.

21. On 31 August 2020, the Head of Unit C sent an email to the appellant, explaining to her that, given the significant workload of the investigation team in question, she could not transfer the three cases at issue to another lead investigator and that, consequently, she was counting on the appellant to close those cases upon her return from leave, in line with what had been agreed. On the same day, she sent the appellant two more emails which contained, respectively, an amended draft final report in Case F and a new draft final report in Case G. In those two emails, she stated that the appellant had to deal with them only once back from sick leave.

22. On 6 September 2020, the appellant replied that her sick leave had been extended and that the cases at issue could be closed without her.

23. On 7 September 2020, the appellant signed electronically a declaration of conflict of interest in Case G, in OLAF’s content management software (OCM).

24. On 8 September 2020, the Head of Unit C informed the appellant that she had appointed a new investigator in two of the three cases at issue. Furthermore, she referred to a consultation in order to close, without the appellant, the third case, namely Case G referred to in point 23 of this Opinion. The Head of Unit C asked the appellant to send her the missing information concerning that third case if, in the meantime, she were to return from her sick leave.

25. On 11 September 2020, the appellant received an email from a colleague from Unit C, congratulating her on her success in a case heard before the General Court. On 17 September 2020, the appellant received, from that same colleague, another email containing a link to the judgment delivered by the Court.

26. On 18 September 2020, the Head of Unit C sent the appellant an email informing her that she had seen the declaration of the conflict of interest referred to in point 23 of this Opinion. Furthermore, in order to allow for a decision on that declaration to be reached, she requested the appellant to provide additional information on the conflict of interest in question. The appellant complied with that request on 20 September 2020.

27. On 25 September 2020, the Head of Unit C sent the appellant an email in order to inform her that the situation of conflict of interest had been endorsed and that the appellant was released from her last pending case. She thus concluded that the appellant had no more cases within her unit.

28. On 28 October 2020, the Head of Unit HR.AMC.5 of the Commission sent a note to that institution’s medical service requesting the opening of an invalidity procedure with respect to the appellant. That request was based on the fact that, for the period from November 2017 until October 2020, which is to say a period of three years, the combined sick leave taken by the appellant exceeded 12 months.

29. On 4 December 2020, the competent appointing authority adopted a decision rejecting the appellant’s request for assistance referred to in point 19 of this Opinion.

30. On 28 February 2021, the appellant lodged a complaint under Article 90(2) of the Staff Regulations challenging the decision rejecting the request for assistance.

31. On 6 May 2021, a video call was organised between, on the one hand, the appellant and, on the other, the Investigation and Disciplinary Office (IDOC) and HR.E.2 Unit (Appeals and Case Monitoring) of the Commission. On 10 May 2021, the appellant was sent a summary of her arguments put forward during that video call. On 11 May 2021, the appellant submitted her comments on that summary and sent documents.

32. On 21 May 2021, the Director-General of the Directorate-General for Human Resources and Security of the Commission adopted the decision opening the invalidity procedure, by which the appellant’s case was referred to the Invalidity Committee and a doctor was appointed to represent the Commission, in accordance with the provisions of Article 7 of Annex II to the Staff Regulations.

33. On 31 May 2021, the appellant lodged a complaint under Article 90(2) of the Staff Regulations challenging the decision opening the invalidity procedure.

34. On 2 July 2021, the competent appointing authority adopted Decision R/138/21, which rejected her complaint against the decision rejecting the request for assistance (‘Decision R/138/21 rejecting the complaint’), on the ground that there was no prima facie evidence supporting the appellant’s claims. Furthermore, the competent appointing authority rejected the claim for compensation for the damage allegedly sustained.

35. On 30 September 2021, the competent appointing authority adopted Decision R/301/21 rejecting the appellant’s complaint against the decision opening the invalidity procedure (‘Decision R/301/21 rejecting the complaint’), by which it concluded that the complaint lodged by the appellant against the decision opening the invalidity procedure was inadmissible.

The proceedings before the General Court and the judgment under appeal

36. By an application lodged at the Registry of the General Court on 19 October 2021, XH brought an action before the General Court pursuant to Article 270 TFEU seeking, first, annulment of the decision of the Commission of 4 December 2020 rejecting her request for assistance and of Decision R/138/21 rejecting her complaint in that regard. Second, the appellant’s action sought the annulment of the Commission’s decision of 21 May 2021 opening the invalidity procedure and Decision R/301/21 rejecting her complaint in that regard. By her action, the appellant also sought an order requiring the Commission to pay her EUR 20 000 by way of compensation for the non-material damage allegedly sustained and to pay the costs.

37. By the judgment under appeal, the General Court dismissed all of the claims made by XH.

38. In the first place, the General Court found that the decision opening the invalidity procedure was not an act definitively laying down the Commission’s position, but an act preparatory to a final decision to be taken upon the conclusion of the invalidity procedure. Consequently, that decision was not an act adversely affecting the appellant, within the meaning of Article 90(2) of the Staff Regulations, and her claim for its annulment had to be rejected as inadmissible.

39. In the second place, the General Court dismissed the claim for annulment of the decision rejecting the request for assistance as unfounded.

40. The appellant raised four pleas before the General Court.

41. The first plea in law alleged infringement of Articles 12a and 24 of the Staff Regulations, breach of the duty of care, infringement of Articles 7 and 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and failure to observe the principle of good administration. The first part of that plea alleged failure to observe the principle according to which the alleged victim is not obliged to provide evidence of the harassment. The second part alleged that the competent appointing authority had failed to take account of the information provided by the appellant and, more specifically, of her medical documents. The third part alleged that the competent appointing authority had based its assessment solely on the findings of the alleged harasser and had refused to exercise its power to review and assist. The fourth part alleged infringement of Article 41 of the Charter and failure to observe the principle of good administration and, in particular, infringement of the appellant’s right to be heard.

42. The second plea in law alleged infringement of Articles 12a, 24, 59 and 60 of the Staff Regulations, and the appellant claimed, in that regard, that she had been required to work during her sick leave and had been set unattainable objectives.

43. The third plea in law challenged the opening of an invalidity procedure at a date on which the appellant had not, she alleged, attained the required duration of sick leave.

44. The fourth plea in law alleged a failure to respect her private life and health.

45. First, the General Court dismissed the fourth part of the first plea as inadmissible, since the right to be heard had not been relied on by the appellant in her administrative complaints, and, in any event, as unfounded. (²)

46. Second, the General Court examined the first part of the first plea, regarding evidence in the context of a request for assistance based on alleged harassment, as provided for in Article 24 of the Staff Regulations. In paragraph 78 of the judgment under appeal, the General Court recalled that, where a request for assistance within the meaning of Article 24 of the Staff Regulations is made to the administration, pursuant to Article 90(1) of the Staff Regulations, it must, by virtue of the duty to provide assistance and when faced with an incident which is incompatible with the good order and tranquillity of the service, intervene with all the necessary vigour. Moreover, it must respond with the rapidity and solicitude required by the circumstances of the case so as to ascertain the facts and, having done so, to take the appropriate action in full knowledge of the matter. To that end, it is sufficient that the official or other staff member who is seeking the protection of his or her institution provide prima facie evidence that the attacks of which he or she claims to have been the victim actually took place. When such evidence is provided, the institution concerned is then under an obligation to take the necessary measures, in particular to conduct an administrative inquiry, with the cooperation of the complainant, to determine the facts which gave rise to the complaint.

47. In paragraphs 80 and 94 of the judgment under appeal, the General Court held that, where, as in the case at hand, the allegations in the request for assistance concern psychological harassment, it is 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. In paragraphs 82 to 85 of the judgment under appeal, the Court expressly dismissed the appellant’s argument drawn from the judgment in CN v Parliament, (³) emphasising the particular circumstances of that case, in which it was clear that the Parliament had had available to it many other items of evidence, in addition to those provided by CN, which should have been taken into account in accordance with the duty of care. The General Court held that, in the present case, the competent appointing authority had not erred in law when it took the view that the appellant had to ‘provide prima facie evidence of harassment’. (⁴)

48. Third, the General Court dismissed the second and third parts of the first plea and the second and third pleas in law, relating to whether the evidence provided in support of the existence of the alleged psychological harassment was sufficient. In paragraphs 94 to 129 of the judgment under appeal, after examining each of the items of evidence individually and then taken together, the General Court held that ‘the information brought to the attention of the competent appointing authority [was] not capable of giving rise to serious doubts that the conditions laid down by Article 12a of the Staff Regulations [were] met, with the result that the appointing authority [had been] entitled to take the view that the [appellant] had not provided prima facie evidence that there was psychological harassment of which she [claimed] she was the victim’. (⁵)

49. In its reasoning, the General Court examined the arguments concerning, first, the decision opening the invalidity procedure, second, the obligation allegedly imposed on the appellant to work during her sick leave, third, the obligation allegedly imposed on the appellant to go to her workplace in order to move office, fourth, the alleged failure on the part of the competent appointing authority to take account of the medical information produced by the appellant and, fifth, the allegedly inappropriate conduct of a colleague of the appellant as regards a case heard by the General Court, before making an overall assessment of the facts put forward by the appellant.

50. After finding the first argument concerning the decision opening the invalidity procedure to be a new argument and therefore inadmissible, (⁶) the General Court examined the second argument concerning the obligation allegedly imposed on the appellant to work during her sick leave. In paragraphs 99 to 106 of the judgment under appeal, it listed and analysed the content of the various exchanges that had taken place during the appellant’s sick leave.

51. It pointed out in that regard that the exchanges of 8 and 9 June 2020 did not contain any request to perform specific work, that the emails of 1 July 2020 consisted in a request for information in which it was specified that a reply was not expected until the appellant’s return from sick leave, and that those emails were worded in a courteous and respectful manner. As regards the request of 23 June 2020, the General Court pointed out that that request to participate in a video call was made on the day following the date on which the appellant had initially been expected to return from sick leave and that the Head of Unit C had not yet been made aware of the extension of that sick leave. As regards the requests of 26 and 31 August 2020, the General Court emphasised that the Head of Unit C had specified that the appellant was not required to perform work until after the end of her sick leave.

52. In the light of that evidence, the General Court concluded that, even if, in principle, it is inappropriate to ask an official or other staff member on sick leave to perform certain specific tasks, in the case at hand, ‘such conduct on the part of the Head of Unit C [could not] be categorised as psychological harassment’. (⁷)

53. Furthermore, in paragraphs 107 and 108 of the judgment under appeal, the General Court held that, as regards the appellant’s alleged obligation to work and to access the case files even after her declaration of a conflict of interest concerning Case G, the request made by the Head of Unit C in connection with that case had been inappropriate, but that such conduct could not, on its own, constitute psychological harassment. First, the possibility remained open for the appellant not to comply with the request of the Head of Unit C and, second, it was not apparent from the file that the Head of Unit C would have insisted on receiving the information requested.

54. Lastly, as regards the appellant’s argument that the competent appointing authority should have made provision for a person to replace her during her sick leave, the General Court pointed out that all the cases were ultimately closed without her involvement and that, since her sick leave was initially supposed to end on 22 June 2020, the administration had not been in a position to foresee that it would be successively extended until the end of October 2020. (⁸)

55. The General Court concluded that the competent appointing authority had not committed an error of assessment by taking the view that the facts examined did not constitute prima facie evidence of psychological harassment. (⁹)

56. The other instances of individual conduct cited by the appellant were dismissed in turn by the General Court, which considered that they did not constitute prima facie evidence of psychological harassment. In paragraph 126 of the judgment under appeal, the General Court also rejected the appellant’s argument that the instances of conduct cited formed a unitary whole constituting psychological harassment. Thus, the General Court emphasised, in paragraph 127 of the judgment under appeal, that, ‘in a specific context characterised, in particular, by the reorganisation of OLAF, and by the successive extensions of the [appellant’s] sick leave of which the persons implicated by the [appellant] were not informed in advance’, and in the absence of any prima facie evidence, ‘that claim by the [appellant could not] suffice to give rise to serious doubts that the alleged harassers [had] acted in the framework of one and the same collective harassment’.

57. Fourth, the General Court dismissed the fourth plea in law, alleging infringement of the appellant’s right to respect for her private life and her right to health. (¹⁰)

58. In the third and last place, the General Court rejected the claim for compensation and refused the measures of inquiry sought by the appellant, and consequently dismissed the action in its entirety. (¹¹)

Forms of order sought

59. By a document lodged at the Registry of the Court of Justice on 29 January 2024, the appellant lodged an appeal against the judgment under appeal, in which she claims that the Court should:

– set aside the judgment under appeal;

– annul the decision rejecting the request for assistance and Decision R/138/21 rejecting the complaint;

– annul the decision opening the invalidity procedure and Decision R/301/21 rejecting the complaint;

– order compensation for the damage allegedly sustained by her;

– order the Commission to pay the costs related to the appeal proceedings and of the proceedings before the General Court, and

– in the event that the judgment under appeal cannot be set aside, refer the case back to the General Court.

60. The Commission contends that the Court should:

– dismiss the appeal, and

– order the appellant to pay the costs.

Analysis

61. In support of her appeal, the appellant submits, in particular, that, in the judgment under appeal, the General Court suggested a ‘high burden of proof that lies solely on the victim’, whereas psychological harassment can be ‘subtle and systemic’. She relies on the ‘cumulative impact’ and the ‘context’, as well as ‘the broader duty of the [EU] institution to consider all available information and to protect the welfare of officials’.

62. The Commission submits that, by making vague assertions about the standard of proof, the appellant is in fact attempting to obtain from the Court of Justice a reassessment of the facts and the evidence as assessed by the General Court, which falls outside the scope of the Court of Justice’s jurisdiction in the context of an appeal.

63. As I mentioned in the introduction, this Opinion will, after recalling the rules which apply to the burden of proof, focus on the question of the scope of the contextual factors in the case of a request for assistance based on Article 24 of the Staff Regulations, and then on the taking into account of those contextual factors in the present case.

Evidence in relation to a request for assistance in the case of allegations of psychological harassment

64. It must be borne in mind that, where an official or other staff member considers that he or she is the victim of conduct on the part of a superior, a colleague, or one of his or her subordinates, which is in breach of the obligation, set out in Article 12a(1) of the Staff Regulations, to refrain from any form of psychological or sexual harassment, that official or other staff member may request the institution’s assistance pursuant to Article 24 of the Staff Regulations, which is designed to protect EU officials in that regard.

65. In cases of allegations of psychological harassment, the duty to provide assistance includes, in particular, the duty of the administration to examine seriously, expeditiously and in total confidentiality the request for assistance in which the psychological harassment is alleged and to inform the complainant of the action to be taken in respect of that complaint. (¹²)

66. To that end, it is sufficient that the official or other staff member who is seeking the protection of the appointing authority provide prima facie evidence that the conduct of which he or she claims to have been the victim actually took place.

67. That said, the institution in question cannot be required to conduct an administrative inquiry 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 inquiry. (¹³)

68. Thus, where, as in the present case, the allegations in the request for assistance concern psychological harassment, it is for the applicant for assistance to provide prima facie evidence of that harassment, in the light of the definition in Article 12a(3) of the Staff Regulations, that is to say, ‘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. (¹⁴)

69. The EU Courts must assess the legality of a decision rejecting a request for assistance, such as that in the present case, in the light of the information that had been brought to the attention of the institution, in particular by the person requesting assistance, at the time when the decision was taken. (¹⁵)

70. This may mean that account is to be taken of other information available to the administration, even if not submitted by the applicant for assistance. Thus, in the judgment in CN v Parliament, on which the appellant relies, the Civil Service Tribunal held that, where the administration has available to it other information in addition to that provided by the applicant, it must take into consideration all the factors which may affect its decision on the request for assistance. (¹⁶)

71. Thus, in an action challenging the rejection of a request for assistance, the EU Courts must seek to ascertain, in the light of all the items of information capable of affecting the decision of the institution in question on the request for assistance, irrespective of whether or not they are produced by the applicant, whether or not that institution made an error of assessment in rejecting that request without initiating an administrative inquiry.

72. Moreover, psychological harassment may, by definition, be the result of a series of different forms of conduct which, taken in isolation, do not necessarily constitute psychological harassment per se, but which, viewed as a whole and in context, including by reason of their accumulation over time, could be regarded as such. That is why, when examining whether the acts alleged by the applicant constitute psychological harassment, those facts should be examined both individually and together as part of the general working environment created by the behaviour of one member of staff towards another. (¹⁷) It is also necessary to take into account the relevant factual context as a whole, which may include decisions (for example, staff reports or decisions not to promote an individual or to reassign him or her), even if they have not been challenged within the prescribed period. (¹⁸) Moreover, the same reasoning, requiring all the circumstances to be taken into account both individually and jointly, also applies where the institution adopts a decision regarding the existence of psychological harassment after initiating an inquiry (¹⁹) or in the context of an action for non-contractual liability. (²⁰)

73. In the present case, it is clear from the judgment under appeal that the General Court carefully carried out such an assessment, in accordance with the principles which I have mentioned.

74. In the course of its reasoning, the General Court considered individually the information relied on by the appellant, concerning, first, the decision opening the invalidity procedure, second, the obligation imposed on her to work during her sick leave, third, the obligation to go to her workplace in order to move office, fourth, the failure on the part of the competent appointing authority to take account of the medical information produced by the appellant, and fifth, the allegedly inappropriate conduct of a colleague of the appellant. (²¹) Furthermore, in paragraphs 126 to 129 of the judgment under appeal, it made an overall assessment of the facts relied on by the appellant.

75. Therefore, I am wholly unconvinced by the appellant’s argument that the General Court infringed the rules of evidence applicable in the present case inasmuch as it failed to take all the available evidence into account.

The scope of the contextual factors

76. As regards, more specifically, the contextual factors that were taken into account in the judgment under appeal, the General Court referred, in particular, to a failure, in essence, in the communication of information within the service. In paragraphs 105 and 114 of the judgment under appeal, the General Court stated that the Head of Unit C, who sent some of the emails at issue to the appellant, had not been aware of the extension of the appellant’s sick leave.

77. The question may therefore be asked as to what scope should be attached, in the examination of a request for assistance in relation to harassment, to a contextual factor such as an administrative dysfunction or failure, in so far as the failure to provide information noted in this case by the General Court may be characterised as such.

78. First of all, I would point out that the assessment of the facts – for which, with the exception of distortion or a manifest error of assessment, the General Court has exclusive jurisdiction – includes the assessment of contextual factors. The question of whether certain types of facts may, may not or may only to a certain extent be taken into account when assessing psychological harassment is a point of law which can be subject to review by the Court of Justice on appeal. (²²)

79. Next, it must be borne in mind that the definition of ‘psychological harassment’ in Article 12a(3) of the Staff Regulations refers to a process that occurs over time and presupposes the existence of repetitive or continual behaviour which is ‘intentional’, as opposed to ‘accidental’. In addition, in order to be covered by the concept of ‘psychological harassment’, such physical behaviour, spoken or written language, gestures or other acts must have the effect of undermining the personality, dignity or physical or psychological integrity of a person. (²³) It is not necessary, on the other hand, that the physical behaviour, spoken or written language, gestures or other acts were committed with the intention of undermining the personality, dignity or physical or psychological integrity of a person. In other words, there can be psychological harassment within the meaning of Article 12a(3) of the Staff Regulations without there being 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 his or her conduct, provided that it was intentional, led objectively to such consequences. The term ‘intentional’ used in Article 12a(3) of the Staff Regulations cannot, therefore, be interpreted as requiring proof of an intention to cause harm in order for conduct to constitute psychological harassment. (²⁴)

80. Accordingly, it follows from the wording of that definition that psychological harassment is a matter of improper conduct, and therefore instances of individual conduct rather than any failure or dysfunction on the part of the institution.

81. That said, those instances of individual conduct or behaviour will have occurred in a particular context, which cannot be ignored and which might be of varying significance, depending on the case, in characterising a situation as psychological harassment. Harassment is a complex problem (²⁵) that may result from a variety of factors both endogenous (relating to the person in question) and exogenous (relating to the work environment).

82. In that regard, without claiming to be able to cover all possible cases exhaustively, it seems to me that a distinction may be drawn between, on the one hand, contextual factors that are created by the attitude of the alleged harasser and can be attributed to him or her and, on the other hand, contextual factors that are not caused by the alleged harasser and cannot be attributed to him or her. (²⁶)

83. For example, a department head might, by his or her personality, a harsh management style or unfair organisational decisions, create, in his or her department, a context that is characterised by ‘harassment’ and is toxic, (²⁷) and, in such a case, the context thus created cannot serve to justify his or her individual conduct. Therefore, it cannot be ruled out, as a matter of principle, that, under certain circumstances, such a contextual factor shares the classification of psychological harassment in the case of a request for assistance based on Article 24 of the Staff Regulations.

84. On the other hand, exogenous contextual factors that are not attributable to a head of department, such as organisational difficulties caused by absences due to sick leave within a department or due to a reorganisation, or administrative dysfunctions, which may yet be relevant in the assessment of individual conduct, shedding light upon it, are not a priori factors pertaining to individual conduct and serving, as such, to characterise psychological harassment. Accordingly, the reorganisation of a department (an exogenous factor falling within the discretion (²⁸) of an institution) may shed light upon the individual ‘harassing’ behaviour of a department head toward a member of his or her department (consisting, for example, in attitudes or conduct which, taken as a whole, constitute psychological harassment), even though that reorganisation is not in itself a factor characterising harassing conduct.

85. Moreover, the duty to provide assistance, laid down in Article 24 of the Staff Regulations, was designed to protect EU officials, and is concerned with the protection of officials and other members of staff, by their institution, against the conduct of third parties, not against acts of the institution itself, the review of which falls under other provisions of the Staff Regulations. (²⁹) In that regard, care must be taken so that criticism is not actually levelled, under the banner of psychological harassment, against poor working conditions, for example. (³⁰) That duty to provide assistance does not therefore appear to come into play in order to make good as such failures or dysfunctions on the part of an institution that are extraneous to the individual conduct at issue. I would add that such exogenous dysfunctions are not immune to every legal remedy, inasmuch as, where they cause damage, the appropriate means of redress may consist in an action for non-contractual liability, provided that the conditions for bringing such an action are met. (³¹)

86. It follows, in my view, that, in the case of a request for assistance based on Article 24 of the Staff Regulations, an institutional or administrative dysfunction, which cannot be attributed to the alleged harasser, is a contextual factor, with a scope to be assessed on a case-by-case basis, which may be of greater or lesser importance in the General Court’s assessment as to whether the individual actions at issue were improper or not.

Application to the present case

87. In the judgment under appeal, the General Court found, on the basis of various facts, that the instances of conduct at issue were not sufficient prima facie evidence of psychological harassment. As regards, more specifically, the requests sent by email to the appellant during her sick leave, the Court took account of the content of the exchanges between the various individuals concerned (in particular, the Head of Unit C) and the appellant. It observed that it was clear from those exchanges, in particular, that replies were not expected until after the appellant’s return from sick leave. The General Court also considered the tone of those exchanges, which was both ‘courteous and respectful’. Moreover, the General Court noted that the Head of Unit C had not been aware of the extensions of the appellant’s sick leave.

88. As regards, more specifically, that finding of the General Court’s that the Head of Unit C had not been kept informed, I would point out that it is disputed by the appellant, who argues that she did inform the Head of Unit C.

89. In that regard, first of all, it must be borne in mind that, in accordance with the settled case-law of the Court of Justice, it follows from the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction, first, to establish the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to appraise those facts. The appraisal of the facts by the General Court therefore does not, save where the clear sense of the evidence produced before it is distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal. (³²)

90. Next, in so far as the appellant alleges that the facts have been distorted in that respect, I consider that that argument must be rejected in view of the emails which she claims show that she did inform the Head of Unit C of the extensions of her sick leave. The emails of 2 and 30 June 2020 were addressed to members of Unit A, and the other emails, which the appellant addressed to the Head of Unit C and in which she informed her that she was still on sick leave (one of which was sent on the day following the first extension) in no way establish that the recipient was aware of that at that time. Nor does it appear that the content of the email of 31 August 2020, in which the Head of Unit C indicated that she did not know how long the appellant would be on sick leave, was distorted by the General Court.

91. The General Court did not, therefore, distort the facts in finding as follows in paragraph 105 of the judgment under appeal: ‘the email of 23 June 2020 was sent on a date which corresponded to the day following the one initially expected to be the end of the [appellant’s] sick leave, namely the foreseeable date of the [appellant’s] return to the office. In addition, it is apparent from several emails, and in particular from an email dated 31 August 2020, that the Head of Unit C was not aware of the extensions of that sick leave, since she was not the [appellant’s] line manager. She states in those emails that she could not know the duration of the [appellant’s] sick leave until after each of its successive extensions, since she was not part of the unit to which the [appellant] was assigned and had no access to her file in Sysper 2. Furthermore, it is apparent from the documents in the file that the [appellant] did in fact inform her head of unit of those successive extensions. However, the Head of Unit C was not among the addressees of those emails.’

92. At this juncture, I must confess my misgivings about the content of the appellant’s line of argument. I would point out that, according to settled case-law, it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, and Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal, failing which the appeal or ground of appeal concerned will be inadmissible. (³³)

93. In this case, I wonder, in particular in the light of the principle audi alteram partem, whether the appellant has argued sufficiently clearly that the fact that the Head of Unit C was not kept informed, as found by the General Court in paragraph 105 of the judgment under appeal, constituted a dysfunction or, at the very least, a contextual factor the ‘cumulative impact’ of which was not sufficiently taken into account, and also what conclusions she draws from that argument.

94. Be that as it may, I take the view that, taking into consideration the fact that the Head of Unit C had not been aware of the extensions of the appellant’s sick leave, the General Court assessed all of the instances of conduct complained of in the light of all the relevant circumstances of the case. I consider that, in doing so, the General Court ascribed to the various items of information at its disposal, separately and taken as a whole, their correct probative value, in accordance with the case-law applicable in that area, which I recalled in points 76 to 86 of this Opinion.

95. The appellant’s argument on this point, provided that it is admissible, must, in my view, be dismissed. As for the matter of whether the absence of information regarding the extensions of the appellant’s sick leave could constitute an administrative dysfunction causing the instances of individual conduct complained of, that calls into question the liability of the institution concerned and therefore seems to me to go beyond the scope of the present dispute in which the appellant seeks the annulment of the decision rejecting the request for assistance.

Conclusion

96. In its forthcoming judgment, the Court of Justice will have to assess the various grounds of appeal raised. As regards the question on which this Opinion has focussed, I propose that, having regard to the foregoing, the Court find that, in the case of a request for assistance based on Article 24 of the Staff Regulations of Officials of the European Union, an institutional or administrative dysfunction, which cannot be attributed to the alleged harasser, constitutes a contextual factor the scope of which must be assessed by the General Court on a case-by-case basis, as it did in this case. The question of whether the failure to inform the Head of Unit C could be due to an administrative dysfunction for which the institution in question is liable goes, in my view, beyond the scope of the present appeal.