The claim for annulment of the contested decision
45In support of his claim for annulment of the contested decision, the applicant raises, in essence, two pleas alleging, first, defects vitiating the contested decision and, second, defects vitiating the Investigation Panel’s report.
46The first plea is divided into two parts.
47By the first part of the first plea, the applicant alleges infringement of the rights of the defence. He asserts that he was not heard by the President of the EIB before the latter adopted the contested decision, in breach of Article41(2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’). Referring to the judgment of 4April 2019, OZ v EIB (C‑558/17P, EU:C:2019:289), and specifically paragraph59 thereof, the applicant states, in essence, that the witness statements were not communicated to him; an omission which adversely affected him.
48By the second part of the first plea, the applicant argues that the President of the EIB, by merely approving the Investigation Panel’s report without providing any further explanation, failed to give reasons for the contested decision.
49The EIB contends that both parts of the first plea should be rejected on the merits.
50Regarding admissibility, while criticising the length of the applicant’s arguments in the reply, stating that it is ‘contrary to the purpose of the Reply, which is to respond to the Defence and thus merely to refine, if necessary, the arguments in the Application’ and ‘merely confirms the [EIB]’s criticisms of the Application and its lack of clarity’, the EIB, regarding the plea based on the right to be heard, raises an objection of inadmissibility in respect of the applicant’s two arguments relating to (i) the fact that ‘numerous elements of the observations and numerous items of evidence’ were not taken into account by the Investigation Panel and (ii) the fact that his request that the composition of the Investigation Panel be changed was not taken into account.
51On the substance, regarding the first part of the first plea, the EIB contends that a prior hearing of the applicant by its President was unnecessary since, first, the President merely approved the findings of the Investigation Panel, which had already heard the applicant, and, second, the investigation procedure relating to harassment must be distinguished from that relating to disciplinary matters, which has its own specific requirements.
52The EIB adds that the applicant had three opportunities to be heard, that is to say, first, when he lodged his complaint, next, when he was heard by the Investigation Panel and, lastly, when he submitted his observations on the draft report previously communicated to him. In the rejoinder, the EIB states that the applicant cannot complain that he did not receive a summary of the statements of the other witnesses and the persons in respect of whom the complaint was made, when the draft report contains a summary of those statements and the applicant was able effectively to submit observations on that draft.
53In that connection and as regards admissibility, it must be noted that, as has been stated in paragraph50 above, the EIB has raised an objection of inadmissibility in respect of only two arguments in relation to the right to be heard. There is no prohibition on submitting new arguments in the reply, unless they constitute in fact a new plea, which is not the case here. In addition, the EIB has not raised an objection of inadmissibility in respect of the applicant’s argument that his right to be heard has been infringed on account of the fact that the witness statements (or a summary thereof) were not disclosed to him; moreover, it replied to that argument in the rejoinder.
54As regards the substance, it should be borne in mind, as a preliminary point, that the rights of the defence enshrined in Article41 of the Charter include the procedural right of every person, provided for in paragraph2(a) of that article, to be heard before any individual measure which would adversely affect him or her is taken.
55The right to be heard, as protected by Article41(2)(a) of the Charter, guarantees every person the possibility of making known, in a useful and effective manner, his or her point of view during the administrative procedure and before the adoption of any decision which may adversely affect his or her interests (judgment of 14July 2021, AI v ECDC, T‑65/19, EU:C:2021:454, paragraph122).
56The Court of Justice has previously ruled, in a dispute relating to harassment, that the Investigation Panel, before forwarding its recommendations to the President of the EIB, and, in any event, the latter, before adopting a decision that would adversely affect an applicant, were required to respect that applicant’s right to be heard as a complainant (judgment of 4April 2019, OZ v EIB, C‑558/17P, EU:C:2019:289, paragraph56).
57As a complainant, an applicant is thus entitled, in order to be able effectively to submit his or her observations, to disclosure of, at the very least, a summary of the statements made by the person accused of harassment and the various witnesses heard, in so far as those statements have been used by the Investigation Panel in its report in order to make recommendations to the President of the institution in question and in so far as the President of that institution has based his or her decision on those statements, and such a summary must be disclosed in line with, if necessary, the principle of confidentiality (see, to that effect, judgment of 25June 2020, HF v Parliament, C‑570/18P, EU:C:2020:490, paragraph60 and the case-law cited).
58In order to ensure that witness statements remain confidential and that the objectives of such confidentiality are respected, while ensuring that an applicant is properly heard before a decision adversely affecting him or her is adopted, certain techniques may be used, such as anonymisation, or even disclosure of the substance of the witness statements in the form of a summary, or the redaction of some of the content of those statements (see, to that effect, judgment of 25June 2020, HF v Parliament, C‑570/18P, EU:C:2020:490, paragraph66 and the case-law cited).
59It that regard, it must be emphasised that, contrary to the EIB’s assertions and in contrast to, in particular, a summary of all the statements made by a witness, a mere excerpt of a witness statement, as is the case here as regards the excerpts set out in the Investigation Panel’s report, does not make it possible for an applicant to be aware of all of the witness statements considered or of the context in which the incidents in respect of which those statements were made were reported, with the result that those excerpts are not sufficient to allow him or her effectively to submit his or her observations.
60In the present case, it is apparent from paragraphs28, 34, 49, 57, 61, 105, 106 and 113 of the draft report and the Investigation Panel’s report, which the President of the EIB used as the basis for his decision to reject the complaint, that their findings are based on statements made by the persons accused of harassment and by other witnesses, from which it could be seen, inter alia, that there was always the possibility to draft study reports on French-speaking countries in English, that the applicant resented C for the promotions she had received since joining the [confidential] Division, that he could be very aggressive physically and verbally, and that C, who was not a ‘guided missile’ sent by her supervisors, was affected by the situation; a fact which led her to consult the EIB’s medical service.
61Thus, in so far as the applicant did not receive, at the very least, an anonymised summary of the statements made by witnesses and by the persons accused of harassment, it must be held that he was not put in a position effectively to submit his observations on the content of those statements before the decision adversely affecting him was taken. Such irregularity inevitably affected both the Investigation Panel’s report and the contested decision in so far as, if the applicant had been given the opportunity to be properly heard, he might have persuaded that panel and even the President of the EIB that a different assessment of the facts and of the various contextual factors, which were decisive in that decision, was possible and that a different weight should be applied to them (see, to that effect, judgment of 25June 2020, HF v Parliament, C‑570/18P, EU:C:2020:490, paragraph73).
62It follows that the contested decision must be annulled, without there being any need to examine the second part of the first plea or the second plea.
The claims for compensation
63Regarding the compensation for the harm the applicant claims to have suffered, it must be noted that he merely refers to a list of infringements of rights and the existence of non-material and material harm, without providing any further explanation or referring to any evidence.
64In that regard, it must be observed, inter alia, that although the applicant relies on medical certificates placing him on sick leave and stating that he is temporarily unable to work, the fact remains that he does not explain how those items of evidence make it possible to establish a causal link between the misconduct he attributes to the EIB and the harm he claims to have suffered.
65Thus, in addition to the fact that it is impossible for the Court to determine whether the harm claimed can be separated from the unlawfulness on which the annulment of the contested decision is based, it is clear that the applicant has not provided enough evidence in support of his claims for compensation to enable those claims to be regarded as admissible.
66Accordingly, all of the applicant’s claims for compensation must be dismissed as inadmissible on the ground that they do not meet the requirements of Article76(d) of the Rules of Procedure.