(1)

The Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union, laid down in Council Regulation (EEC, Euratom, ECSC) No 259/68 (the ‘Staff Regulations’) (2) provide that staff members are to refrain from any action or behaviour which might reflect adversely upon their position, including any form of psychological or sexual harassment.

(2)

The Commission has put in place a policy to prevent and deal effectively with actual or potential cases of psychological or sexual harassment in the world of work at the Commission, as provided for in Commission Decision C(2023) 8630 (3).

(3)

Decision C(2023) 8630 establishes the function of Chief Confidential Counsellor and lays down an informal procedure whereby the victim of harassment or a witness of such harassment can contact the Chief Confidential Counsellor. The Chief Confidential Counsellor is the main entry point for victims of harassment to provide prompt and confidential advice, information on available services, and support. They may assign a case to one of the confidential counsellors under the informal procedure or, in exceptional situations, decide to perform the same tasks as confidential counsellors. The confidential counsellors receive, listen to, support, inform, and guide victims in their efforts to find satisfactory solution in a situation which victims perceive as involving harassment. The informal procedure aims at offering an appropriate assistance to the issues raised by the victim, without providing an assessment of the behaviour in legal terms. In cases of recurrent allegations of harassment occurring in the same Directorate-General or Service, the Chief Confidential Counsellor may inform the Director-General or the Head of Service concerned, and, if the victim agrees, the Investigation and Disciplinary Office of the Commission (‘IDOC’). The Chief Confidential Counsellor can also contact the relevant actors or services to provide information or advice on appropriate measures without prejudice to their respective competences.

(4)

In the context of this informal procedure conducted by the Chief Confidential Counsellor and the confidential counsellors, the Commission collects and processes information. That information may include personal data of the victim, the alleged harasser, potential witnesses, and any other persons concerned.

(5)

Beyond the informal procedure, the Chief Confidential Counsellor should also be able to, where relevant, facilitate the implementation of interim protective measures and accompanying measures and contact the relevant services. In this context, the Chief Confidential Counsellor also has access to personal data of the victim, the alleged harassers, potential witnesses and any other person concerned.

(6)

Moreover, the Chief Confidential Counsellor may be asked to advise victims of harassment who engaged in the formal procedure. As part of this procedure, in conformity with Article 39(2) of Decision C(2023) 8630 the victim may ask the Chief Confidential Counsellor to provide an independent opinion on aspects of the preliminary examination and who may, for this purpose, have access to personal data of the victim, the alleged harasser, witnesses, and any other person concerned.

(7)

To fulfil their task, the Chief Confidential Counsellor and the confidential counsellors may collect and process several categories of personal data, including identification, contact and behavioural data as well as personal data referred to in Article 10(1) and Article 11 of Regulation (EU) 2018/1725. The Commission acts as data controller.

(8)

While carrying out its tasks under the Staff Regulations, the Commission is bound to respect the rights of natural persons in relation to the processing of personal data recognised by Article 8(1) of the Charter of Fundamental Rights of the European Union and by Article 16(1) of the Treaty on the Functioning of the European Union, as well as the rights provided for in Regulation (EU) 2018/1725. At the same time, all staff of the Commission are required to comply with rules of confidentiality.

(9)

In certain circumstances, it is necessary to reconcile the rights of certain data subjects pursuant to Regulation (EU) 2018/1725 with the need to ensure effectiveness of the Commission’s response to allegations of harassment and other inappropriate behaviour, as well as with full respect for the fundamental rights and freedoms of other data subjects. To that effect, Article 25 of Regulation (EU) 2018/1725 gives the Commission the possibility to restrict, under strict conditions, the application of Articles 14 to 22, 35 and 36 of Regulation (EU) 2018/1725, as well as Article 4 thereof in so far as its provisions correspond to the rights and obligations provided for in Articles 14 to 20 of Regulation (EU) 2018/1725. Unless restrictions are provided for in a legal act adopted on the basis of the Treaties, it is necessary to adopt internal rules under which the Commission is entitled to restrict those rights.

(10)

In order to ensure the confidentiality and effectiveness of the anti-harassment procedures, including administrative inquiries, pre-disciplinary, disciplinary and suspension proceedings, the Commission adopted Decision (EU) 2019/165 (4) and Decision (EU) 2022/121 (5), which restrict, respectively, the exercise of data subjects’ rights pursuant to Article 25(1) points (b), (c), (g) and (h), of Regulation (EU) 2018/1725.

(11)

The Commission might be required to reconcile the rights of data subjects with the need to safeguard both the objectives of the informal procedure conducted by the Chief Confidential Counsellor and the confidential counsellors and the performance of other tasks of the Chief Confidential Counsellor as provided for in the Decision C(2023) 8630.

(12)

It might notably be required to balance the alleged harasser’s data subject rights, such as their right to access their personal data collected by the Chief Confidential Counsellor and the confidential counsellors, against the fundamental rights and freedoms of all other persons concerned, such as the victim and potential witnesses. The Commission may decide to do so in particular to protect those persons against possible retaliation by the persons concerned against whom allegations were made, which however have not led to measures by the administration. The Commission may decide to do so pursuant to Article 25(1), point (h), of Regulation (EU) 2018/1725.

(13)

It might be necessary to protect confidential information concerning a staff member who has contacted the Chief Confidential Counsellor or confidential counsellors in the context of a harassment procedure. In such cases, the Commission might need to restrict access to the identity, statements and other personal data of the alleged victim, the witnesses, and other persons concerned, in order to protect the rights and freedoms of all concerned.

(14)

In order to comply with Articles 14, 15 and 16 of Regulation (EU) 2018/1725, the Commission should inform all individuals of its activities involving the processing of their personal data and of their rights, in a transparent and coherent manner, by means of a data protection notice published on the Commission’s website. Where relevant, the Commission should individually inform, by appropriate means, the data subjects involved in the informal reporting procedure.

(15)

Article 16(5) of Regulation (EU) 2018/1725 provides for exceptions to data subjects’ right to information. If those exceptions apply, the Commission does not need to apply a restriction to the right to information under this Decision. In cases of allegations of psychological and sexual harassment that give rise to an informal procedure, the personal data should remain confidential. Providing this information to the alleged harasser would seriously impair the achievement of the objectives of that processing. Therefore, those exceptions should be applied to alleged harassers’ right of information as regards personal data collected by the Chief Confidential Counsellor and the confidential counsellors.

(16)

The Commission should apply restrictions only when they respect the essence of fundamental rights and freedoms, are strictly necessary and are a proportionate measure in a democratic society. The Commission should provide a justification for those restrictions. In application of the principles of transparency, fairness and accountability, the Commission should handle all restrictions in a transparent manner and keep a record of its application of restrictions.

(17)

Article 25(6) of Regulation (EU) 2018/1725 obliges the controller to inform data subjects of the principal reasons on which the application of the restriction is based and of their right to lodge a complaint with the European Data Protection Supervisor.

(18)

Pursuant to Article 25(8) of Regulation (EU) 2018/1725, controllers may defer, omit or deny the provision of information relating to the principal reasons for the application of a restriction to the data subject if providing that information would in any way cancel the effect of the restriction. The Commission should assess on a case-by-case basis whether the communication of the restriction would cancel its effect.

(19)

The Commission should lift the restriction as soon as the reasons that justify the restriction no longer apply and assess those conditions on a regular basis.

(20)

The Data Protection Coordinator of the Directorate-General responsible for Human Resources should be consulted in advance of any restrictions that may be applied and verify their compliance with this Decision.

(21)

The Data Protection Officer of the Commission should carry out an independent review of the application of restrictions, with a view to ensuring compliance with this Decision.

(22)

The European Data Protection Supervisor has been consulted in accordance with Article 41(2) of Regulation (EU) 2018/1725 and delivered his opinion on 13 October 2023,