C-62/01
ECLI:EU:C:2002:55
- Súd
- Súdny dvor Európskej únie
- IČS
- 62001CC0062
- Zdroj
- eur-lex.europa.eu ↗
OPINION OF MR MISCHO — CASE C-62/01 P
OPINION OF ADVOCATE GENERAL MISCHO delivered on 24 January 2002 1
1. Anna Maria Campogrande, a Commis- inquiry against Mr A. The inquiry heard sion official in Grade A 4, considers she has evidence from Ms Campogrande, Mr A and been the victim of sexual harassment on the other officials who could provide infor- part of her director, Mr A. mation regarding the kind of behaviour the complainant alleged her director had been guilty of.
2. Having taken various informal steps, on 27 June 1997 Ms Campogrande requested the Commission's assistance under 5. However, no formal response was given Article 24 of the Staff Regulations of to Ms Campogrande regarding the action Officials of the European Communities which the administration intended to take ('the Staff Regulations'), which is equival- with regard to her complaint. ent to a request under Article 90(1) of the Staff Regulations. The applicant was seek- ing from the Commission compensation for material and non-material damage and damage to her career as appropriate in her case. 6. In view of this silence, on 20 August 1998 the complainant brought an action before the Court of First Instance, regis- tered as Case T-13 6/9 8.
3. The Commission failed to respond to her request. Consequently, on 21 January 1998 Ms Campogrande lodged a complaint under Article 90(2) of the Staff Regulations against the implied rejection of her request. 7. Subsequently, on 29 October 1998, she was notified of the outcome of the adminis- trative inquiry, which found that no sexual harassment had taken place.
4. One week later, on 28 January 1998, the Commission initiated an administrative 8. In the statement of claim she submitted 1 — Original language: French. to the Court of First I n s t a n c e ,
I - 3796
CAMPOGRANDE v COMMISSION
Ms Campogrande claimed the Court Moreover, there is nothing in the text should declare that her action was admiss- of the complaint, even if it is inter- ible and well founded, should annul the preted in a spirit of openness, to implied decision rejecting her complaint of suggest to the defendant that the 21 January 1998 and should order the applicant was the subject of retaliation Commission to compensate for the non- as a result of her complaint. material damage she had suffered as a result of the contested decision.
67 Furthermore, in that it claims that the Court of First Instance should order the defendant to reconstitute her career, 9. In Case T-136/98 Campogrande v Com- the claim for damages falls outside the mission 2 the Court of First Instance jurisdiction of the Community judica- annulled the Commission's implied ture which, according to settled case- decision rejecting the request for assistance law, may not issue directions to insti- made by the appellant on 27 June 1997 but tutions (Joined Cases T-171/95 and dismissed the action as to the remainder. T-191/95 Al and Others and Becker The Court dismissed the action on the and Others v Commission [1998] grounds set out in paragraphs 66 to 72 of ECR-SC I-A-257, II-803, the judgment under appeal on the following paragraph 37). grounds:
68 As regards the non-material damage suffered by the applicant as a result of the uncertainty in which the Commis- '66 It should be pointed out first of all that sion left her, in breach of its duty to in so far as it seeks damages to make exercise due care and attention, includ- reparation for the damage suffered as a ing the duty to proceed expeditiously, result of the alleged retaliation to when considering complaints relating which the applicant was subjected to sexual harassment, as regards the after her complaint had been lodged, action it proposed to take on her the claim for damages is inadmissible request for assistance and the results in the absence of proper pre-litigation of its administrative inquiry, it should procedure beforehand (Joined Cases be pointed out that, in the circum- T-17/90, T-28/91 and T-17/92 Camara stances of this case, annulment of the Alloisio and Others v Commission contested decision is in itself appropri- [1993] ECR II-841). The applicant ate compensation for that damage. mentioned for the first time in her application the retaliatory measures which she allegedly suffered from her immediate superiors after Mr A left. 69 Lastly, the applicant has not proved to 2 — [2000] ECR-SC I-A-267, II-1225, 'the judgment under the requisite legal standard that she appeal*. suffered non-material damage as a
I - 3797
OPINION OF MR MISCHO — CASE C-62/01 P
result of being exposed to the con- personal file shows that throughout her sequences of the acts of sexual harass- career with the Commission the appli- ment complained of in her request for cant has always considered that her assistance, exposure to which the Com- abilities were insufficiently recognised mission was indifferent. In order to do (see the applicant's comments on her so she should at least have adduced staff reports during the reference evidence for the presumption that she periods 1966/67 and 1981/83). Fur- did in fact suffer such harassment. thermore, although it is true that the applicant's staff reports for the periods 1987/89, 1989/91, 1991/93 and 1993/95 contain very favourable assessments of her abilities, it is also true that the same staff reports also mention Ms Campogrande's dif- 70 The fact remains that the applicant has ficulties in her relations with other not adduced such evidence. On the people and that the staff reports for contrary, the administrative inquiry the periods between 1966 and 1985 are has shown the inconsistency of the not so full of praise for the applicant. accusations contained in the request for assistance. The facts preceding the incident on 27 February 1997, which Ms Campogrande described in that request as "comments on [her] person and repeated unwelcome advances quite outside the framework of a 72 The action for damages should there- normal professional relationship", fore be dismissed.' were later revealed to be mere expressions of friendship or mere coincidences which do not even war- rant the description "incidents" (see in particular the account of those facts in the report of the hearings on 13 May and 10 June 1998 prepared by Ms Campogrande herself and attached to 10. Since Ms Campogrande regarded those the report of the inquiry). As regards grounds as unfounded, on 12 February the incident on 27 February 1997 (see 2001 she brought an appeal against that paragraph 12 above), none of the judgment under Article 49 of the EC people present at the meeting has been Statute of the Court of Justice, registered able to confirm the version of the facts as Case C-62/01 P, claiming that it should contained in the request for assistance. be partially set aside.
71 As regards the professional difficulties 11. More specifically, she claims that the described in the request, analysis of her Court of Justice should set aside the judg-
I - 3798
CAMPOGRANDE v COMMISSION
ment in so far as it dismissed her claim for First plea: breach of the obligation to state compensation, should acknowledge that reasons due to the flagrant contradiction in, sexual harassment did take place and that and inadequacy of, the grounds of judg- she had suffered non-material damage, ment should order the Commission to pay dam- ages and lastly should order the Commis- sion to pay the costs.
15. The appellant divides her first plea into five parts, each corresponding to a different challenge to the reasoning followed by the Court of First Instance and the findings 12. In so doing she relies on four pleas: which it made, but all linked to breach of breach of the obligation to state reasons the obligation to state reasons. due to a contradiction in the grounds of judgment, infringement of Community law and the relevant case-law on new pleas in law, justice denied in respect of liability, and infringement of the rights of the defence.
16. The defendant regards this presentation as fallacious, in that the appellant, in the guise of criticism of the grounds of the judgment under appeal, criticism which can be linked to pleas that, under Article 225 EC and the first paragraph of Article 51 of 13. The defendant in the appeal, the Com- the EC Statute of the Court of Justice, may mission, contends that the Court should be lodged in an appeal, is seeking to obtain dismiss the appeal as inadmissible, or at a ruling from the Court of Justice based on least unfounded, that if the Court decides findings and assessments of the facts, which to set aside the judgment under review it cannot be challenged in an appeal. should refer the matter back to the Court of First Instance, and that the appellant should be ordered to pay the costs.
17. In other words, the way in which the appellant has dressed up her plea cannot alter its intrinsic inadmissibility and, to 14. I shall consider in turn, in the order in quote the Commission, 'any claim made in which the appellant submits them, the four an appeal that challenges the factual assess- pleas submitted in respect of the judgment ments made by the Court of First Instance under appeal. must be rejected as inadmissible'.
I - 3799
OPINION OF MR MISCHO — CASE C-62/01 P
18. I cannot but agree with that statement. excluding any argument which might be I do not think, however, that it is possible regarded as challenging findings of a fac- to reject outright the appellant's first plea tual nature or repudiating the discretion as inadmissible. It is true that the objective accorded to the Court of First Instance. pursued by the appellant in presenting the grounds put forward by the Court of First Instance as defective is to challenge the accuracy of the conclusion reached by that Court, which was that Ms Campogrande can aspire to no more than the annulment 22. A series of factual findings does not yet of the implied decision rejecting the request constitute reasoning and it is essential, if for assistance made on 27 June 1997. one intends to reach a conclusion based on law, that such findings should be connected by considerations which are admissible from the point of view of legal logic. On this point the Court of Justice cannot refuse to exercise its powers of review when an appellant requests it to do so. 19. It is also correct that that assessment is based on factual findings which cannot, save for manifest error or distortion, be challenged before the Court of Justice. 23. Under the first part of her first plea the appellant claims to point to a contradiction between the statement contained in paragraph 68 of the judgment under appeal that 'in the circumstances of this case, annulment of the contested decision is in 20. This does not to my mind mean, itself appropriate compensation for' the however, that the appellant is prevented non-material damage caused to the appel- from seeking to show in her appeal that the lant by the uncertainty in which the Com- Court of First Instance in its absolute mission left her as regards the action it discretion drew inferences from the find- proposed to take on her request for assist- ings which at a strictly logical level are ance and the results of its administrative incompatible with those findings and hence inquiry, and the grounds given in create a contradiction revealing an incor- paragraphs 41 to 59 of that judgment to rect application of the legal rule. justify annulment of the implied decision rejecting the request for assistance made by the appellant.
21. I therefore propose to adopt a narrow approach, carefully considering the com- 24. She maintains that the Court of First plaints made by the appellant against the Instance was not entitled to state, as it did grounds for refusing any compensation, but in paragraph 53 of the judgment under
I - 3800
CAMPOGRANDE v COMMISSION
appeal, that the Commission's behaviour Campogrande's right to compensation, could not be regarded as complying with although to her great displeasure it did the duty to exercise due care and attention, rule, within its discretion, that that right including the duty to proceed expedi- was satisfied by annulment. tiously, which is inherent in the duty to provide assistance and at the same time consider that annulment provided appro- priate compensation, especially since paragraph 55 of the judgment states that so far as sexual harassment is concerned uncertainty as regards the action the 29. When one considers the case-law of the administration proposes to take on a com- Court of First Instance in respect of com- plaint is always damaging to the dignity of pensation for non-material damage suf- both the complainant and the person fered by an official as the result of an accused and should always be avoided. unlawful act, one finds that although on numerous occasions 3 it has been held that the annulment of an act which has been challenged constitutes appropriate compen- sation, there are cases in which the Court of 25. In describing annulment as appropriate First Instance has ruled that appropriate compensation, the Court of First Instance, compensation would not be provided by according to the appellant, downgraded the annulment owing to the fact that the seriousness of the breaches alleged against unlawful act contained a negative assess- the Commission. ment of the behaviour or capacity of the official which the official might feel was hurtful. 4
26. For my part, I do not see where the contradiction lies.
30. That case-law of the Court of First Instance is in line with the case-law of the 27. A contradiction would exist if the Court of Justice which, in Culin v Com- Court of First Instance had initially recog- mission,s held that compensation for non- nised that non-material damage had been material damage may in some specific cases caused in this case, and was attributable to require more than annulment. the Commission behaving in a way which conflicted with its obligations, but had subsequently denied that the appellant 3 — See, for example, Cases T-158/89 Van Hecken v Economic and Social Commutée [1991] ECR II-1341; T-52/90 Volger was entitled to compensation. v Parliament [1992] ECR II-121; T-368/94 Blanchard v Commission |1996] ECR-SC I-A-1; II-1; T-376/94 Otten v Commission [1996] ECR-SC I-A-129; II-401, and T-140/97 ¡lautem v EIB |1999| ECR-SC I-A-171; II-897. 4 — Sec Joined Cases T-282/97 and T-57/98 Giannini v Com¬ mission [1999] ECR-SC I-A-33; II-151; Case T-60/94 Pierrat v Court of justice [1995] ECR-SC I-A-23; 11-77 and Case T-197/98 Rudolph v Commission |2000| ECR-SC 28. That is not the case, however, since the I-A-55; 11-241. Court of First Instance did not deny Ms 5 — Case C-343/87 |1990| ECR I-225.
I-3801
OPINION OF MR MISCHO — CASE C-62/01 P
31. It is clearly because she considers she is appropriate, I would have pointed out that entitled to the benefit of that case-law, in the strictness which the Court of First the light of the Court of First Instance's Instance showed in its assessment of the findings with regard to the Commission's Commission's behaviour, which is also behaviour in the part of the judgment pointed out by the appellant, should have relating to the claim for annulment, that been accepted by the appellant as totally Ms Campogrande claims that the Court of appropriate compensation for the non-ma- Justice should find there is a contradiction terial damage she suffered, since it is settled in the grounds of the judgment under case-law that the operative part of a judg- appeal. ment must always be read in the light of the grounds of the judgment and in this instance not only was the Commission's case rejected, the Commission itself was censured. 32. I can only observe, however, that in this case the Court of First Instance does not state anywhere in the grounds of its judgment that the appellant was entitled in the circumstances of this case to feel 35. In the absence of any identifiable personally hurt. Moreover, it is apparent contradiction and in the presence of a from the case-law of the Court of Justice discretion that is vested exclusively in the that it will not review the appropriateness Court of First Instance, the first part of the of compensation decided on by the Court first plea can only be rejected. of First Instance.
36. We now come to the second part of the first plea, under which the appellant 33. This can be seen clearly in Commission accuses the Court of First Instance of v Brazzelli Lualdi and Others, 6where the stating that she has not established to the Court of Justice held that 'once the Court requisite legal standard that she suffered of First Instance has found the existence of non-material damage through being damage, it alone has jurisdiction to assess, exposed, to the indifference of the Com- within the confines of the claim, the most mission, to the consequences of the acts of appropriate compensation'. sexual harassment complained of in her request for assistance, whilst neither Mr A's alleged gesture nor his remark are disputed and, in the light of the criteria laid down in all the legal instruments relating to sexual harassment which are acknowledged to 34. I do not intend to propose that the apply in this case, 7constitute such behav- Court of Justice should go back on that iour. case-law, but I would observe that, if I had thought the Court of Justice was required to rule on whether the compensation was 7 — Council Resolution 90/C 157/02 of 29 May 1990 on the protection of the dignity of women and men at work (OJ 1990 C 157, p. 3); Commission Recommendation 92/131/EEC of 27 November 1991 on the protection of the 6 — C-136/92 P [1994] ECR I-1981, paragraph 66. dignity of women and men at work (OJ 1992 L 49, p. 1).
I - 3802
CAMPOGRANDE v COMMISSION
37. That criticism is derived, as the Com- 41. The Court of First Instance was entitled mission very properly states, from a mis- to consider, without there being any reading of the judgment under appeal. contradiction, that an inquiry should be Nowhere in that judgment does the Court initiated but that, following the inquiry, no of First Instance find that Ms Campo- sexual harassment, and hence no con- grande had indeed been the victim of sexual sequent damage to the appellant, had been harassment. What the Court of First found to have occurred. Instance found, which was very different, was merely that the information contained in the appellant's complaint required the Commission to afford her assistance by initiating an inquiry. 42. In the absence of any contradiction or lack of an adequate statement of reasons, the appellant's criticisms appear to be no more than an attempt, which is by defini- tion inadmissible, to challenge the findings made in its discretion by the Court of First 38. However, according to the official who Instance, in accordance with the rules on conducted it, the inquiry which was event- the burden of proof. They cannot therefore ually initiated did not show either that Mr succeed. A's behaviour at the meeting on 27 February 1997 amounted to sexual harassment or that Mr A had on any other occasion previously behaved in a way that could be described as such. 43. Under the third part of her first plea the appellant alleges that there is a contra- diction, amounting to a denial of justice, in the grounds of the judgment of the Court of First Instance. That contradiction lies in the fact that paragraph 70 of the judgment under appeal states that the appellant had 39. Logically, therefore, it was for Ms not adduced evidence of sexual harassment Campogrande to prove to the Court of and that the administrative inquiry had First Instance that the findings of the shown the inconsistency of the accusations inquiry were incorrect. contained in the request for assistance, whilst in that part of the judgment which related to the action for annulment there was harsh criticism of the conditions under which the inquiry had been conducted.
40. The degree of credibility required of the complainant is not at all the same when an inquiry is to be instigated as it is when the negative outcome of an inquiry is being 44. I think that this is yet another attempt challenged. to challenge the assessments of the Court of
I - 3803
OPINION OF MR MISCHO — CASE C-62/01 P
First Instance with regard to the reality of graph that sexual harassment had not been some of the facts alleged by the appellant, established to the requisite legal standard, an attempt which should be considered held, as it was entitled to do, that examin- inadmissible. ation of Ms Campogrande's personal file gave a picture of the appellant which was not altogether that given in the application. That assessment cannot be discussed in the context of an appeal.
45. I cannot see where there is any contra- diction since, although the inquiry may have been criticised by the Court of First Instance, this was not in respect of the credibility of its results (which Ms Campo- grande was unable to disprove), but merely 48. I now come to the fifth and last part of in respect of the delay in instigating it and the first plea. the time it took to complete, which although regrettable cannot discredit the inquiry's results.
49. Under that part the appellant, using a number of terms such as rights of the defence, the principle of the protection of 46. The issue raised in the fourth part of legitimate expectations and denial of jus- the first plea, which claims that there were tice, accuses the Court of First Instance, if I insufficient grounds and an error of reason- understand her correctly, of failing to ing in paragraph 71 of the judgment under answer the substance of her application, appeal, is also inadmissible. Ms Campo- both as regards the existence of sexual grande asserts that the Court of First harassment and as regards the reliability of Instance should have considered whether the results of the inquiry. her professional difficulties did not orig- inate from the sexual harassment which she had experienced and which the Court of First Instance established in paragraph 12 of its judgment.
50. That accusation is unfounded since, as we saw above, the Court of First Instance ruled that the evidence adduced by the appellant was insufficient to cast doubt on 47. We are on the verge of bad faith here, the result of the inquiry, namely that the since paragraph 12 of the judgment under complaints of sexual harassment made by appeal, far from conveying the opinion of Ms Campogrande against Mr A were futile, the Court of First Instance, merely sets out but it is also inadmissible because it the claims of the appellant. In fact, in amounts to a challenge to the findings paragraph 71 of its judgment, the Court, and assessments of the Court of First having established in the preceding para- Instance.
I - 3804
CAMPOGRANDE v COMMISSION
51. On completion of my examination of 53. In the appellant's view, the Court of the various parts of the first plea of the First Instance was wrong to consider that appeal, I consider that that plea is inad- this was a new plea in law the raising of missible in part and unfounded in part, so which in the course of proceedings is that it should at any event be rejected. prohibited by the Rules of Procedure, when in fact it was a new argument in support of pleas already contained in the application.
54. From the outset the appellant had Second plea: infringement of Community sought compensation for all the damage law and the relevant case-law on new pleas she had suffered as the result of Mr A's in law behaviour and the Commission's inertia, so the compensation sought due to the retali- ation allegedly suffered after the complaint had been brought was clearly part of that overall compensation. She also contends, as an alternative claim, that the case-law of 52. The second plea concerns paragraph 66 the Court of Justice accepts that if a of the judgment under appeal, which reads: complaint constitutes a preliminary intended to permit or promote the amicable settlement of a case, 'it is not the function of that complaint to bind strictly and absolutely the judicial stage of the proceed- ings, provided that the claims submitted at this latter stage change neither the cause 'It should be pointed out first of all that in nor the object of the complaint'. 8 Finally so far as it seeks damages to make repar- she p o i n t s to the j u d g m e n t in ation for the damage suffered as a result of Koutchoumoff v Commission, 9 which the alleged retaliation to which the appli- reads: cant was subjected after her complaint had been lodged, the claim for damages is inadmissible in the absence of proper pre- litigation procedure beforehand (Joined Cases T-17/90, T-28/91 and T-17/92 Camma Alloisio and Others v Commission '... the Court has consistently held that an [1993] ECR II-841). The applicant men- official may not submit to the Court con- tioned for the first time in her application clusions with a subject-matter other than the retaliatory measures which she alleg- those raised in the complaint or put for- edly suffered from her immediate superiors ward heads of claim based on matters other after Mr A left. Moreover, there is nothing in the text of the complaint, even if it is interpreted in a spirit of openness, to 8—Joined Cases 75/82 and 117/82 Rtizzouk and Beydoun v suggest to the defendant that the applicant Commission [1984] ECR 1509, paragraph 9. was the subject of retaliation as a result of 9 — Case 224/87 [ 1989] ECR 99, paragraph 10. Sec also Case C-446/00 P Cubero Vermurw v Commission [2001] LCR her complaint.' I-10315.
I - 3805
OPINION OF MR MISCHO — CASE C-62/01 P
than those relied on in the complaint. The 57. This is not a claim which is simply an submissions and arguments made to the extension of the original claim and which Court in support of those heads of claim might be considered to see if it was need not necessarily appear in the com- implicitly included in the initial claim, 10 it plaint but must be closely linked to it is unquestionably a new and totally separ- (judgment of 20 May 1987 in Case 242/85 ate claim. Geist v Commission [1987] ECR 2181)....'
55. As far as she is concerned, 'the claim for damages to make reparation for the damage caused by the retaliation has the 58. As regards the retaliation following the same legal basis and subject-matter as the lodging of the complaint, assuming it took original action, which was for compen- place, it is behaviour which does not tally sation for the damage suffered'. The refusal chronologically with the alleged sexual to consider the 'plea' relating to the retali- harassment and the inertia with which the ation on the ground that it was not Commission dealt with the request for mentioned in the original action was akin assistance. to a denial of justice 'since it is clear that the retaliation, which is one of the con- sequences of the appellant's action, was unforeseeable when the complaint was made'.
59. It is also behaviour which could not be attributed to the person who allegedly 56. From the way I see it, all those committed the sexual harassment, since it arguments are undermined from the outset is not disputed that Mr A was on leave on by a flaw which I should not hesitate to personal grounds from mid-June 1997, describe as fundamental, namely confusion which was before the request for assistance between a claim and a plea and between was even made, and therefore no longer subject-matter and legal basis. When Ms occupied a superior position which would Campogrande claims damages in repar- enable him to engage in retaliation. The ation for the alleged retaliation she suffered complaint referred simply to 'retaliation in as a result of making her original com- the form of bullying and humiliation', and plaint, she is making a claim which has 'destabilising activities' to which the appel- nothing to do with her claim for compen- lant was subjected 'by her director, Mr A'. sation for the damage caused to her by the A claim for damages to compensate for implied decision rejecting her request for assistance and the sexual harassment to which Mr A is said to have subjected her. 10 — See Case 346/87 Bossi v Commission [1989] ECR 303.
I - 3806
CAMPOGRANDE v COMMISSION
retaliation suffered after Mr A's departure Third plea: justice denied in respect of could not therefore be founded on the same liability legal basis.
62. In her third plea the appellant criticises paragraph 67 of the judgment under appeal, which reads: 60. Since these are two separate claims there can be no question of the appellant being entitled to benefit under the advan- tageous case-law she is relying on. Nor can the appellant claim application by analogy of the rules applying in the event of any 'Furthermore, in that it claims that the factual evidence coming to light during the Court of First Instance should order the written procedure which was unknown to defendant to reinstate her, the claim for the appellant when she lodged her appli- compensation falls outside the jurisdiction cation. The principles underlying proceed- of the Community judicature which, ings involving Community officials mean according to settled case-law, may not issue that the administration can always avoid directions to institutions (Joined Cases being brought before the judicature by T-171/95 and T-191/95 Al and Others granting a claim submitted to it pre- and Becker and Others v Commission viously. 1 1It has been established that Ms [1998] ECR-SC I-A-257, I I - 8 0 3 , Campogrande did not lodge any complaint paragraph 37)'. with the administration against the refusal of a claim for damages to compensate for the damage she sustained as a result of retaliation against her following her com- plaint against the implied refusal to grant her assistance in the light of the sexual 63. She contends that she did not apply for harassment which she considered she had a direction to be given to the Commission suffered. but that she was seeking compensation for the non-material damage she had suffered, compensation which the Court of First Instance had refused to award her, because in the circumstances of this particular case, contrary to what the Court of First Instance 61. The Court of First Instance was there- had held, the hurtful nature of the Com- fore correct in ruling that the claim for mission's behaviour had meant that annul- damages to compensate for the damage she ment could not provide appropriate com- suffered due to retaliation as a result of her pensation. lodging a complaint was inadmissible. The second plea should therefore be rejected as unfounded.
11 — See, regarding application of those principles. Joined Cases 64. I shall not repeat what I said in my T-78/96 and T-170/96 W v Commission [1998] ECR-SC I-A-239; II-745. consideration of the first part of the first
I - 3807
OPINION OF MR MISCHO — CASE C-62/01 P
plea regarding the fact that in the context 61. Once again this is a plea which cannot of an appeal, save where there has been a succeed. In order for the Court of First manifest error, it is not possible to dispute Instance to be accused of an infringement whether compensation awarded by the of the rights of the defence it would be Court of First Instance is appropriate. necessary to establish that the Court had not permitted the appellant to adduce evidence of the facts she had alleged in her request for assistance and that the findings reached by the inquiry eventually instigated by the Commission were in- accurate.
65. I shall merely observe that if the appellant, in the guise of alleging that justice has been denied, seeks to challenge the merits of the judgment under appeal in respect of the compensation which she may claim such action will be ruled inad- 68. It is incorrect to imply, as the appellant missible. does, that the Court of First Instance merely appropriated the results of the inquiry without giving the appellant the opportunity to dispute them. On the contrary, the Court assessed the evidence submitted by Ms Campogrande in the particularly favourable light called for when considering complaints of sexual harassment, since it states in paragraph 69 of the judgment under appeal that it was Fourth plea: infringement of the rights of prepared to take into consideration 'evi- the defence dence for the presumption 12 that she did in fact suffer such harassment'.
66. In her fourth plea the appellant accuses the Court of First Instance of drawing inferences from the administrative inquiry 69. But it was obliged to find subsequently, instigated by the Commission when she had on the grounds given in paragraph 70 of the complained that the conditions under judgment under appeal, that such evidence which it had been conducted were unac- had not been adduced. It therefore, whilst ceptable in her view as regards both the exercising a discretion which cannot be rights of the defence and their subject- denied it, gave credence to the results of the matter, namely potential sexual harass- inquiry. The plea must therefore be rejected ment. She therefore maintained that by as unfounded. covering up that infringement of the rights of the defence the Court of First Instance had itself infringed those rights. 12 — Emphasis added.
I - 3808
CAMPOGRANDE v COMMISSION
Conclusion
70. Having reached the end of my consideration of the pleas submitted by the appellant in support of her appeal and having found that those pleas are without exception either inadmissible or unfounded, I can only suggest that the Court of Justice should:
— dismiss the appeal;
— order the appellant to pay the costs.
I - 3809