Information;Judgment — ECLI:EU:T:2023:35
Date: 2023-02-01
Language of the case: English
Court formation: Eighth Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Action for damages - successful;Staff cases - successful

summary form, coherently and intelligibly, in the application itself (order of 28 April 1993, De Hoe v Commission, T‑85/92, EU:T:1993:39, paragraph 20, and judgment of 12 December 2018, SH v Commission, T‑283/17, EU:T:2018:917, paragraph 86). 25 In the present case, the application makes it possible to identify the subject matter of the dispute and that there are four pleas, put forward in a sufficiently coherent and comprehensible manner which enables the Parliament to prepare its defence and the Court to exercise its power of review, in accordance with the requirements imposed by the case-law established on the basis of Article 76(d) of the Rules of Procedure, which the Parliament does not dispute. 26 As a consequence, the Parliament’s plea of inadmissibility must be rejected as unfounded. 27 Furthermore as regards the subject matter of the action, according to settled case-law, a claim for annulment formally directed against the decision rejecting a complaint has the effect of bringing before the Court the measure against which the complaint was submitted, where that claim, as such, lacks any independent content (see, to that effect, judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 13 December 2018, CH v Parliament, T‑83/18, EU:T:2018:935, paragraph 56). 28 The mere fact that the authority authorised to decide on a complaint has been led, in response to the complaint, to supplement or amend the grounds of the contested decision cannot justify the rejection of that complaint being regarded as an autonomous measure adversely affecting the applicant. The statement of grounds for that rejection is deemed to be incorporated in the decision against which that complaint was directed (see, to that effect, judgments of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraphs 55 and 59, and of 6 July 2022, VI v Commission, T‑20/21, not published, EU:T:2022:427, paragraph 17). 29 In the present case, the decision rejecting the complaint merely confirms the second decision refusing assistance, even though, by the former, the Secretary-General amended the statement of reasons for the refusal of the applicant’s request for assistance, stating, in essence, as recalled in paragraph 18 above, that the AECE was bound by the reasoned decision of the President of the Parliament and that it could only draw the appropriate conclusions from it in the context of the request for assistance. 30 In view of the evolving nature of the pre-litigation procedure, it is necessary to take into account, on the one hand, the statement of reasons for the decision rejecting the complaint and, on the other, the statement of reasons in the President’s reasoned decision, to which the second decision refusing assistance refers (see, to that effect, judgments of 13 December 2018, CN v Parliament, T‑76/18, not published, EU:T:2018:939, paragraph 40, and of 13 December 2018, CH v Parliament, T‑83/18, EU:T:2018:935, paragraph 57). The claim for annulment 31 In support of the action, the applicant raises four pleas in law, alleging, first, infringement of the right to be heard, second, infringement of the right to have her affairs treated impartially and fairly, of Article 24 of the Staff Regulations and of the duty of care, third, infringement of the obligation to state reasons and, fourth, errors of assessment and infringement of Articles 12a and 24 of the Staff Regulations. 32 In the context of the first plea, the applicant claims that her right to be heard was not respected since she had no opportunity to comment on the report of the APA Special Advisory Committee, whose opinion was sought by the AECE when adopting the second decision refusing assistance. The applicant states that she received only one document of less than two pages, the reasoning in which was not sufficient to enable her to understand what work the APA Special Advisory Committee had done, the assessment made by that committee, or the evidence which was gathered. 33 The Parliament submits that the reasoned decision of the President of the Parliament on whether or not harassment had occurred and the procedure leading to its adoption should be the subject of a separate judicial review. Thus, the question as to whether the applicant was heard in relation to the report of the APA Special Advisory Committee is irrelevant for the purposes of assessing the lawfulness of the second decision refusing assistance. The Parliament notes that, in the present case, it is not the AECE which sought the opinion of that committee and had to take that opinion into account. 34 The Parliament also states that the first decision refusing assistance was annulled by the Secretary-General on the basis that the right to be heard had not been observed. It claims that the Secretary-General was of the opinion that the applicant was not given the opportunity to express her point of view on the question of whether, in a situation where the President’s reasoned decision had concluded that no harassment had occurred, there were nonetheless reasons why the institution should have assisted her. The Parliament observes that, in so far as the applicant did not submit any evidence in that regard, the refusal to assist her on the basis of Article 24 of the Staff Regulations is fully justified and was ultimately confirmed by the decision rejecting the complaint. 35 Under Article 41(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’), the right to good administration includes the right of every person to be heard before any individual measure which would affect him or her adversely is taken. 36 In particular, the right to be heard guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely (judgment of 4 June 2020, EEAS v De Loecker, C‑187/19 P, EU:C:2020:444, paragraph 68; see, also, judgment of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraph 58 and the case-law cited). 37 In addition, the right to be heard is intended to guarantee that any decision adversely affecting a person is adopted in full knowledge of the facts, and its purpose is to enable the competent authority to correct an error or to enable the person concerned to submit such information relating to his or her personal circumstances as will argue in favour of the adoption or non-adoption of the decision, or in favour of its having a specific content (see judgment of 4 June 2020, EEAS v De Loecker, C‑187/19 P, EU:C:2020:444, paragraph 69 and the case-law cited). 38 In the present case, it should be noted that the second decision refusing assistance, by which the AECE refused the request for assistance made by the applicant, constitutes an individual measure taken with regard to her which adversely affected her within the meaning of Article 41(2) of the Charter. Accordingly, the applicant had to be given a proper hearing before the adoption of that decision. 39 In that regard, where, as in the present case, the AECE decides to take into account the opinion issued by the advisory committee to which the responsibility for conducting an administrative inquiry was entrusted, that opinion, which can be drafted in a non-confidential form respecting the anonymity granted to witnesses, must, in accordance with the right to be heard of the person who submitted the request for assistance, in principle be communicated to the latter, even if internal rules do not provide for such communication (see, to that effect, judgment of 13 December 2018, CH v Parliament, T‑83/18, EU:T:2018:935, paragraph 85). 40 The Court notes that disclosure of that opinion to the person concerned also enables the administration to comply with its obligation to state reasons laid down in the second paragraph of Article 25 of the Staff Regulations. While the case-law allows a statement of reasons to be given by reference to a report or opinion which itself gives reasons, it is necessary for such a report or opinion actually to be communicated to the person concerned together with the measure complained of (see judgment of 14 July 2021, AI v ECDC, T‑65/19, EU:T:2021:454, paragraph 139 and the case-law cited). 41 Moreover, the Court of Justice has held previously that a staff member who has requested the assistance of the AECE in a situation of psychological harassment is also entitled, in order to be able submit his or her comments properly, to obtain, 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 the AECE based its decision refusing a request for assistance on that evidence (see, to that effect, judgment of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraphs 60 and 62 and the case-law cited). 42 In the present case, the parties agree that the Parliament did not forward to the applicant either the report of the APA Special Advisory Committee or a summary of the statements of persons heard during the administrative inquiry conducted by that committee. 43 In that regard, the mere disclosure of the anonymised version of the conclusions of the APA Special Advisory Committee cannot be regarded as sufficient to ensure the applicant’s right to be heard, since she is entitled to be provided with the full report of that committee, albeit possibly in a non-confidential form, before the decision on her request for assistance is taken. 44 It follows that the fact that the applicant was not given those documents and was therefore not able to be heard on the subject of them, with the effect that she was not put in a position to submit comments properly on their content before the AECE adopted the second decision refusing assistance, which adversely affected her, amounts to a breach of Article 41(2) of the Charter. Such a failure to disclose constitutes an irregularity that inevitably affected the second decision refusing assistance (see, to that effect, judgment of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraph 73). 45 If the applicant had been given the opportunity to be heard properly, it cannot be ruled out that she could have persuaded the AECE that a different assessment of the facts and the various items of evidence that she had submitted was possible and, therefore, that her request for assistance had to be granted. In that regard, the Court notes that it is apparent from the non-confidential version of the inquiry report drawn up by the APA Special Advisory Committee, sent to the Court by the Parliament in response to a measure of organisation of procedure, that, according to the Committee’s minority opinion, the applicant’s allegations of psychological harassment were established, which is not apparent from the reasoned decision of the President of the Parliament. 46 That conclusion is not called in question by the Parliament’s arguments. 47 First, the Parliament notes that the AECE also did not have access to the report of the APA Special Advisory Committee before it adopted the second decision refusing assistance, which was therefore not based on that report. On that basis, according to the Parliament, the applicant did not have to be heard on the content of that report before the adoption of the second decision refusing assistance. 48 In that regard, it is indeed true that the report of the APA Special Advisory Committee was adopted pursuant to the decision of the Bureau of the Parliament of 14 April 2014, as amended on 6 July 2015, adopting Internal rules on harassment and its prevention at the workplace and on harassment complaints involving Accredited Parliamentary Assistants and Members of the European Parliament. According to Article 10 of that decision, the APA Special Advisory Committee is to forward its report to the President of the Parliament. In its reply to a question from the Court, the Parliament explained that, even though, in the President’s reasoned decision, the President informed the applicant that he would forward her ‘file’ to the AECE in order for it to take a decision on the request for assistance, he had not, however, sent to the AECE any documents other than his reasoned decision and the complaint lodged by the applicant on 13 July 2017. 49 However, the fact that the AECE adopted the second decision refusing assistance without even seeking to obtain the report of the APA Special Advisory Committee constitutes an irregularity. 50 As mentioned in paragraph 37 above, the right to be heard is intended to guarantee that any decision adversely affecting a person is adopted in full knowledge of the facts. It requires the administration to examine carefully and impartially all the relevant aspects of the individual case (judgment of 10 January 2019, RY v Commission, T‑160/17, EU:T:2019:1, paragraph 26). Specifically, observance of the right to be heard requires that the person concerned must first have been afforded the opportunity effectively to make known his or her views on any information against him or her which might have been taken into account in the measure to be adopted (judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 150). 51 If a decision of the administration on a request for assistance is not a decision adopted following a procedure initiated against the person requesting assistance, the report drawn up at the end of an administrative inquiry the purpose of which is to determine whether a staff member has been the victim of harassment is a relevant factor which the AECE must take into account before taking a decision on the request for assistance in which that staff member claims to be the victim of harassment. Accordingly, specifically, it was for the AECE to acquaint itself with that report and to form its own opinion of the Committee’s work before making a decision on a request for assistance, the purpose of which is acknowledgement that the alleged harassment occurred. Without seeking to obtain the report, the AECE could not validly make a decision on the request for assistance and state, as it did, that it agreed with the findings of the APA Special Advisory Committee. 52 In the present case, the fact that the AECE did not itself have available to it the report of the Special APA Advisory Committee does not therefore alter the finding that the second decision refusing assistance is based, albeit indirectly, on that report. The AECE refers directly to the conclusions of that report in order to conclude that no harassment had occurred and, therefore, that the request for assistance should be refused. Similarly, in the decision rejecting the complaint, the Secretary-General stated that the AECE could not depart from the reasoned decision of the President of the Parliament, which is based solely on that report. 53 It follows that the report of the APA Special Advisory Committee had a decisive influence on the content of the second decision refusing assistance and that, consequently, it had to be sent to the applicant before that decision was adopted. 54 Second, the Parliament’s argument that the AECE was bound by the assessment of the President of the Parliament, with the result that it did not have the power to depart from it, cannot succeed. 55 In that regard, it should first be recalled that the obligation to provide assistance laid down in Article 24 of the Staff Regulations applies to the AECE and not to the President of the Parliament. 56 Accordingly, it is for the AECE to assess whether the allegations of a staff member are substantiated with sufficient prima facie evidence, in which case it is for it to take the necessary measures, in particular to conduct an administrative inquiry, with the cooperation of the staff member requesting assistance, to determine the facts which gave rise to the request for assistance (see judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 97 and the case-law cited) and, in the light of the outcome of the inquiry, to adopt the necessary measures, such as the opening of disciplinary proceedings against the person concerned where the administration concludes, on completion of the administrative inquiry, that psychological harassment has taken place (judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 80). 57 It is true that, where the person against whom allegations have been made is, as in the present case, a Member of the European Parliament, the administration of the Parliament does not have the power to initiate disciplinary proceedings against him or her. That is why the Parliament, in its internal rules, conferred on the President of the Parliament the powers held by the AECE as regards disciplinary measures in this area. In particular, Article 12(1) of the Decision of the Bureau of the Parliament of 14 April 2014, as amended on 6 July 2015, provides that the President of the Parliament is to hear the Member if he intends to discipline him or her. However, the AECE still has the power to adopt any measure directly concerning the APA (see, to that effect, judgment of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 91). 58 The delegation of that power regarding disciplinary measures to the President of the Parliament cannot, however, result in the AECE being deprived of its discretion in adopting the measures that it is required to take, as part of its duty to provide assistance, in the light of the results of the inquiry. 59 Moreover, the Parliament’s line of argument amounts to denying the applicant the right to challenge the lawfulness of the sole ground relied on by the AECE to justify refusing the assistance sought, namely the lack of evidence of the alleged psychological harassment. 60 Since the President’s reasoned decision is not a measure from the AECE adversely affecting the APA, against which an appeal may be brought under Article 270 TFEU, accepting the Parliament’s line of argument would be tantamount to depriving an APA of any opportunity to challenge the results of the administrative inquiry intended to establish the facts underlying the request for assistance. 61 Consequently, the second decision refusing assistance must be annulled on the ground of infringement of the right to be heard, without it being necessary to examine the other pleas raised by the applicant. Claim for compensation 62 The applicant claims that, as is apparent from the facts as described in her request for assistance and her complaint, she was exposed to a very high level of responsibility and stress and to a heavy workload for a period of more than four years. Despite the fact that she states that she was exploited by the MEP to commit fraud using the EU budget, she continued to carry out all her tasks to the best of her abilities, thereby suffering physical and psychological harm. Moreover, she was put under enormous pressure by the MEP as a result of her summons as a witness before the Greek Prosecutor and her participation in the OLAF investigation. Despite that, her request for assistance was refused, without the necessary means being used to establish the truth and without sufficient account being taken of her arguments or a reply being given to them. 63 Consequently, the applicant states that she did not receive the assistance that she should have. In the light of all those factors, she estimates the non-material harm suffered ex aequo et bono at EUR 50 000. 64 The Parliament disputes the applicant’s arguments. 65 As regards compensation for non-material harm, the EU Courts have noted that the annulment of an unlawful measure may constitute, in itself, appropriate and, in principle, sufficient compensation for any non-material harm which that measure may have caused, unless the applicant shows that he or she has sustained harm that cannot be compensated in full by that annulment (see judgment of 6 July 2022, VI v Commission, T‑20/21, not published, EU:T:2022:427, paragraph 83 and the case-law cited). 66 However, case-law accepts that the feeling of injustice and distress caused by the fact that an individual is required to undergo a pre-contentious procedure and then a contentious procedure in order to ensure recognition of his or her rights constitutes harm which may be inferred from the mere fact that the administration acted unlawfully. That harm must give rise to reparation where it is not compensated by the satisfaction resulting from the annulment of the measure in question (judgment of 28 May 2020, Cerafogli v ECB, T‑483/16 RENV, not published, EU:T:2020:225, paragraph 448). 67 In the present case, it is apparent from paragraph 9 above that the Parliament withdrew the first decision refusing assistance on the ground that the applicant had not been heard. The AECE refused the request for assistance on a second occasion without hearing her, concluding, inter alia, that the psychological harassment of which she claims to have been the victim had not occurred, which forced the applicant to bring an action before the Court seeking a declaration that the Parliament had infringed her right to a proper hearing. It follows from the withdrawal of the first decision refusing assistance and the annulment of the second decision refusing assistance that the applicant is yet to obtain a definitive decision on whether the conduct complained of actually occurred, even though the acts of psychological harassment alleged, if established, could have had extremely destructive effects on her state of health. In addition, the Court notes that the applicant has not been employed by the Parliament since her contract was terminated in May 2018. If, following this judgment, her right to be heard is observed by the Parliament and the request for assistance granted, it is difficult to imagine what type of assistance the Parliament could offer her. 68 In those circumstances, the Parliament’s repeated refusal to hear the applicant and the confirmation of the second decision refusing assistance put her in a state of insecurity, uncertainty and distress constituting, in view of the length of time that has elapsed since the facts giving rise to her request for assistance, non-material harm which is incapable of being made good in full by the mere annulment of the second decision refusing assistance (see, to that effect, judgment of 28 May 2020, Cerafogli v ECB, T‑483/16 RENV, not published, EU:T:2020:225, paragraph 450 and the case-law cited). 69 In the light of the foregoing, in the circumstances of the present case, the Court considers it fair to award ex aequo et bono compensation in the amount of EUR 2 500 on account of the non-material harm suffered. Costs 70 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Parliament has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant, including the costs relating to the plea of inadmissibility. On those grounds, THE GENERAL COURT (Eighth Chamber) hereby: 1. Annuls the decision of the European Parliament of 20 May 2019 refusing the request for assistance lodged by BG; 2. Orders the Parliament to pay BG, in respect of non-material harm suffered, an amount of EUR 2 500; 3. Orders the Parliament to pay the costs. Svenningsen Mac Eochaidh Pynnä Delivered in open court in Luxembourg on 1 February 2023. E. Coulon M. van der Woude Registrar President * Language of the case: English.