Harassment and court procedures
Our Staff Regulations did not contain any provisions on harassment until the 2004 Reform when Article 12a was inserted (see inset below). The wording, which was the subject of countless negotiations between the Commission and the trade-union and professional organisations, and then between the Commission and the Council, rapidly revealed its weaknesses : in order to be able to talk about psychological harassment, one has to prove that it was intentional, which is clearly very difficult. Fortunately, this element, which incidentally is incompatible with the definition of harassment given by Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, has been clarified by the Civil Service Tribunal which has taken the view that the acts should indeed be voluntary but it is not necessary to prove intention.
In the absence of taking all appropriate measures to bring harassment to an end an institution fails in its duty of care and in its obligation to provide assistance.
Article 12a limits itself to prohibiting harassment and therefore allows the institution to open disciplinary proceedings in cases of harassment. But this article by itself does not give any rights to the victim of harassment. If the institution does not start proceedings against the harasser (assuming it is aware of the harassment), nothing happens. Each institution has therefore put in place instruments to fight against harassment and deal with complaints on the matter. As a general rule, there is an ‘informal’ procedure under which a person who feels harassed can contact ‘persons of confidence’, individual members of staff appointed by the institution for that purpose or persons holding specific posts (psychologist, mediator, …). If this informal procedure does not succeed in resolving the problem, one can move on to make a formal complaint of harassment which is treated as a request for assistance under Article 24 of the Staff Regulations. Following the request, the appointing authority is obliged to open an investigation to ascertain whether there has been harassment and, where appropriate, take the necessary measures to bring the harassment to an end, condemn it and restore the damaged reputation. In the event of refusal of assistance, it is possible to lodge a complaint and then, if it is rejected, an action for annulment before the Court of Justice (currently the Civil Service Tribunal and soon to be the General Court). According to the case law, in the absence of taking all appropriate measures to bring harassment to an end an institution fails in its duty of care and in its obligation to provide assistance.
As a general rule, informal procedures and requests for assistance are rarely successful, especially in small institutions and structures where a misplaced sense of ‘esprit de corps’ often pushes an appointing authority to ‘cover’ the persons accused of harassment if there is no objective and irrefutable evidence that the accusations are well founded. An institution clearly cannot commence disciplinary proceedings on the basis of unfounded accusations, but where there is a ‘bundle of indicators’ pointing to harassment that should be sufficient at least to open an investigation, without the person harassed having himself to establish proof of harassment.
The court examines the situation from a purely legal point of view and often stands well back from the human drama.
Unfortunately the result of a complaint, followed by proceedings before the Court of Justice, is often disappointing for the person concerned. By definition a person harassed is always rendered more fragile, sometimes extremely so, and he or she will often have difficulty standing up to the very intense emotional burden that the proceedings represent : the alleged harasser defends himself often by making accusations against the victim; the appointing authority, by responding to the complaint and the proceedings, has to justify its decision not to open an investigation and therefore seeks to dispute the accusations by the victim, and the court examines the situation from a purely legal point of view, often standing well back from the human drama which, in a case of harassment, is really what it is all about. Most often, where the court gives a verdict in favour of the victim, it is usually a case of condemning the institution for failing to provide assistance, that is to say for not having opened an investigation.
Two emblematic cases
Two cases of harassment by highly placed personalities have been denounced by the press within the last few years. One of the members of the Court of Auditors had for several years harassed three members of his cabinet, one of whom fell into serious depression and became permanently and totally disabled in spite of long and costly psychotherapy treatment. Two investigation reports drawn up by former judges of the Court of Justice, damning reports by several psychiatrists and a report drawn up by the President of the Court of Auditors concluded there had been ‘psychological harassment’. However, the members of the institution decided in 2013 to bury the matter, obliging the persons complaining, after about five years of internal procedures, to bring court proceedings which in the end they had to abandon.
At the European Parliament, a vice-president was accused of harassment by one of her parliamentary assistants. At the instigation of the parliamentarian the assistant was dismissed on the spot by the Parliament which refused to open an investigation following the complaint. Several months later another assistant to the same vice-president felt forced to resign because he could no longer bear the harassment he was being subjected to. When the Civil Service Tribunal got to hear about the first affair it condemned the Parliament for not having opened an investigation and, ‘taking into account the questionable circumstances in which the dismissal decision and the decision rejecting the request for assistance were taken’, it ordered compensation to the victim for non-material damage of EUR 50.000, which is exceptional. Shortly afterwards it gave a ruling in the same vein in the second case, allowing this time EUR 40.000 for non-material damage.
These condemnations have not pushed the Parliament to grant its assistance to the victims and open an investigation. The first victim had to bring a second set of proceedings at the end of which the Parliament was again condemned for not having opened an investigation. While they have still not obtained a true investigation and recognition of the harassment of which they were victims, the two assistants have at least benefited from compensation for the serious fault committed by the Parliament.
Psychological harassment is an offence
Another possible route is to lodge a criminal complaint with the Belgian Justice authorities, and constitute oneself as civil party. Psychological harassment is an offence. By virtue of the relative immunity that is granted us under the Protocol on Privileges and Immunities, Belgian Justice probably has to seek authorisation from the institution to hear, even as witnesses, members of staff, but probably the institution would find it difficult to oppose such a request. However, even more under Belgian legal proceedings than European procedures, the procedures are long and trying for the victims.
As one can see, while officials and other agents are in theory protected against all forms of harassment, it is often difficult, or impossible, to obtain effective protection when one is confronted with acts of harassment. That is why, while it does not hesitate to bring legal proceedings when justified, even against highly placed personalities, Union Syndicale is working hard to improve the informal procedures which, if they were correctly implemented, should always provide the best solution. It also makes available to its members very experienced advisers and advocates on the matter.