Judgment — ECLI:EU:T:2018:935
Date: 2018-12-13
Language of the case: French
Court formation: First Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Action for damages - successful;Action for damages - unfounded;Staff cases - successful

summary of those documents. 105 Moreover, the latter option could have enabled the General Court, if applicable, to overcome the Parliament’s concern that, in view of the nature of the facts alleged, an anonymised version of those documents would not have afforded sufficient protection since, according to the Parliament, the witnesses’ identity could easily have been deduced from the facts reported or the statements made. 106 In any event, as regards the Parliament’s criticism of the General Court’s practice in which gave rise to the judgment of 13 July 2018, Curto v Parliament (T‑275/17, EU:T:2018:479) and in the pending case QH v Parliament (T‑748/16), it suffices to say that decisions of that kind cannot be regarded as abnormal, since the General Court merely applied the provisions of its Rules of Procedure, in particular Article 103 of those Rules (order of the Vice-President of the Court of 5 July 2018, Müller and Others v QH, C‑187/18 P(I), not published, EU:C:2018:543, paragraph 41). 107 Consequently, without it being necessary to examine either the first or the second plea in law any further, the contested decision must be annulled on the ground that the AECE infringed the applicant’s right to be properly heard before that authority rejected her request for assistance. The claim for damages 108 In support of her claim for damages, the applicant submits that the Parliament should be found liable, first, for the illegality described in the two pleas seeking annulment and, secondly, for the faults committed by the APA Special Advisory Committee, and then by the AECE, in particular the fact that the APA Special Advisory Committee unlawfully denied her the right to be assisted by her adviser at her hearing on 28 January 2015, the fact that it would be inequitable for the institution’s medical officer to have a role only as an observer on that committee and the fact that the presence of a representative of the administration on the APA Special Advisory Committee infringed the principle of impartiality. According to the applicant, those factors contributed, in the present case, to making the procedure unbalanced, partial and non-transparent. 109 The applicant further criticises the Parliament for disregarding the reasonable time principle in so far as the procedure to handle the request for assistance took over two years and three months between the date on which she was heard by the APA Special Advisory Committee and the date on which the contested decision was adopted. The Parliament arguably acknowledged in that respect, in the decision rejecting the complaint, that there was no objective justification for the length of time between that hearing and the reasoned decision. The applicant asserts that she had to wait a further seven months once the reasoned decision was adopted for the AECE to ask her to submit her observations and that, furthermore, the AECE did not do so spontaneously, but in response to a request by the applicant. 110 The applicant accordingly claims compensation for three heads of non-material harm, that is to say, first, harm stemming from the climate of uncertainty, legal uncertainty and fear of being treated unfairly, amounting to EUR 5 000; secondly, harm stemming from the AECE’s failure to act sufficiently quickly in handling the request for assistance, amounting to EUR 13 500; and, thirdly, harm associated with the unlawful acts referred to in the two pleas seeking annulment, which should be quantified ex æquo et bono as EUR 50 000, having regard to the difficulty she had in understanding the reasons for the rejection of her request for assistance and to the attitude of the AECE, which, despite its duty to provide assistance, has not given her the impression that it is genuinely trying to protect her. 111 The Parliament argues that the claim for damages should be dismissed. 112 In respect of the applicant’s wish to have her adviser accompany her when she was heard by the APA Special Advisory Committee, the Parliament contends that the applicant’s role in the administrative inquiry procedure is to give her version of the facts, so that the committee can determine whether the facts amount to psychological harassment, rather than to embark on an accusatory procedure against the presumed harasser. In reality, according to the Parliament, it is the APA who is in the position of accuser before the APA Special Advisory Committee, and the Member of the European Parliament, in contrast, who is in the position of having to defend him or herself. Since the alleged victim of psychological harassment has fewer procedural rights than the accused person, the applicant was therefore not entitled to require the assistance of her lawyer when she was heard by the APA Special Advisory Committee. The fact that the Internal APA Rules concerning harassment were amended only on 6 July 2015 to the effect that the alleged victim had to be heard alone is irrelevant in that respect because, first, that amendment merely codified the earlier practice and, secondly, according to the case-law in the judgment of 16 December 1976, Perinciolo v Council (124/75, EU:C:1976:186, paragraphs 35 to 37), an official or other staff member is only entitled to request the assistance of a lawyer during an administrative procedure if the applicable rules expressly so provide. The fact that the Parliament’s Jurisconsult was present when the applicant was heard was of no consequence whatsoever, according to the Parliament, because the Jurisconsult only had observer status. Moreover, the Jurisconsult’s presence was justified because it was necessary to ensure that the administrative inquiry was conducted in accordance with the law contained in the Staff Regulations. On the other hand, the Jurisconsult was not present in order to defend X’s interests against those of the applicant because, in any event, proceedings before the APA Special Advisory Committee are not contentious. 113 As regards the length of the procedure, the Parliament contends that, in the 16 months to which the applicant refers, the APA Special Advisory Committee held seven meetings, heard several witnesses and examined the facts alleged, and that this justified that length of time. Revealing at the time of that assertion that the committee in question issued a final report on 7 April 2016, the Parliament states that the compensation granted by the AECE, in response to the complaint, related only to the seven-month period that elapsed between the reasoned decision and the contested decision. In any event, the Parliament emphasises that it needed time to set up a structure capable of effectively examining harassment alleged against Members of that institution. 114 It must be recalled in that connection that, according to settled case-law, the annulment of an unlawful act, such as the contested decision, may constitute, in itself, appropriate and, in principle, sufficient compensation for any non-material harm which that act may have caused. However, that is not the case where the applicant shows that he or she has sustained non-material harm that can be separated from the illegality justifying the annulment and that cannot be compensated for in full by that annulment (see, to that effect, judgments of 6 June 2006, Girardot v Commission, T‑10/02, EU:T:2006:148, paragraph 131, and of 16 May 2017, CW v Parliament, T‑742/16 RENV, not published, EU:T:2017:338, paragraph 64). 115 As regards the claim for damages for the irregularities referred to in the first plea in law, annulment of the contested decision should in principle constitute appropriate and sufficient compensation for the non-material harm to the applicant arising from the illegality found by the General Court. However, in certain specific circumstances, such as those found to exist in paragraphs 26 to 29 of the judgment of 7 February 1990, Culin v Commission (C‑343/87, EU:C:1990:49), the feeling of injustice and the anxiety that might be caused by the fact that an individual is required to undergo pre-litigation and litigation proceedings in order to secure recognition of that individual’s rights may constitute psychological harm distinct from the illegality already compensated by annulment of the contested act (see, to that effect, judgment of 29 April 2015, CC v Parliament, T‑457/13 P, EU:T:2015:240, paragraphs 49 to 52). Accordingly, in the present case, such specific circumstances must be found to exist as regards the Parliament’s refusal to comply with the General Court’s measure of inquiry, since the defendant’s stance prevented the Court from fully carrying out its judicial review and exacerbated the applicant’s feeling of injustice and distress, which constitutes non-material harm that cannot be appropriately and sufficiently compensated by the contested decision being annulled on the basis of the first plea. 116 The claim for damages relating to the irregularities raised under the second plea in law are premature in the light of the fact that, at the present stage of the proceedings, the General Court cannot rule on the arguments advanced in support of that plea because it will be for the AECE, complying with this judgment, to properly hear the applicant and, if necessary, rule again on the request for assistance. 117 As regards the fact that the applicant was not allowed to be assisted by her adviser when she was heard by the APA Special Advisory Committee, the rules applicable at the Parliament do not provide for an option to do so. In any event, as noted in paragraphs 71 to 73 above, hearings by that committee are not inter partes proceedings conducted against the person seeking assistance under Article 24 of the Staff Regulations. Accordingly, although the AECE is not precluded from establishing that a person being heard in an administrative inquiry can be assisted by a colleague, a staff representative or an adviser, the applicant cannot rely on the principle of equality of arms or the principle of good administration to require the appointing authority to establish that option for hearings arranged by the APA Special Advisory Committee. Furthermore, nothing suggests that X was entitled to be assisted by an adviser for her own hearing. The fact that the Parliament’s Jurisconsult was able to participate as an observer in the proceedings of the APA Special Advisory Committee, including at the hearings, is not such as to vitiate the proceedings of that body. 118 As regards the composition of the APA Special Advisory Committee, it has already been held, in relation to the General Advisory Committee, that, even if full parity was not provided for between the members appointed by the administration and those appointed by the staff committee, the fact that the institution’s medical officer is a member of the advisory committee, the fact that the advisory committee ‘[was] to work with complete autonomy, independence and confidentiality’, and the collegial nature of the deliberations were sufficient guarantees as to the impartiality and objectivity of the opinion that the advisory committee compiled and adopted for the benefit of the AECE (judgment of 29 June 2018, HF v Parliament, T‑218/17, under appeal, EU:T:2018:393, paragraph 103; see also, to that effect and by analogy, judgments of 30 May 2002, Onidi v Commission, T‑197/00, EU:T:2002:135, paragraph 132, and of 17 March 2015, AX v ECB, F‑73/13, EU:F:2015:9, paragraph 150). 119 The foregoing also applies mutatis mutandis to the APA Special Advisory Committee. The applicant therefore cannot claim that the medical officer in fact had a decision-making role, and cannot criticise the AECE for being represented on that committee by the chair of the General Advisory Committee. 120 As regards the length of the procedure to handle the request for assistance, the Staff Regulations do not lay down any specific procedure for handling that kind of request, including where such a request relates to alleged infringement of Article 12a of the Staff Regulations, or any specific timescale. The same applies to the Internal APA Rules concerning harassment, although those rules do lay down several stages, entailing the involvement of the APA Special Advisory Committee and of the President of the Parliament. The AECE is therefore bound in that regard to uphold the reasonable time principle (see, to that effect, judgment of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraphs 59 and 62) and the EU institution or body concerned must therefore, when conducting an administrative inquiry and subsequently handling the request for assistance, ensure that each measure is adopted within a reasonable time following the previous measure (judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 101). Furthermore, in order to appraise the reasonableness of the period in which the administrative inquiry was completed and the request for assistance handled, regard must be had to the importance of the case for the person concerned, its complexity and the conduct of the parties (see, to that effect and by analogy, judgment of 10 June 2016, HI v Commission, F‑133/15, EU:F:2016:127, paragraph 113 and the case-law cited). 121 In the present case, the General Court finds that, in general terms, the APA Special Advisory Committee took more than 14 months to complete its inquiry, between the date on which the applicant was heard, that is to say, 28 January 2015, and the date on which it completed its work, that is to say, 7 April 2016. Furthermore, from the time the judgment in CH v Parliament (F‑132/14, EU:F:2015:115) was delivered, that is to say, 6 October 2015, more than seven months elapsed before the President of the Parliament, once he had been made aware of the findings of the APA Special Advisory Committee, adopted the reasoned decision on 18 May 2016. The applicant also had to wait a further nearly 8 months before finally being invited, at her request, to submit observations on that reasoned decision before the AECE, in turn, ruled on the request for assistance. 122 In addition, because the Parliament refused to comply with the General Court’s measure of inquiry, the General Court is unable to determine how the proceedings of the APA Special Advisory Committee were conducted, in particular the number of meetings and hearings held and the extent of the conclusions that the committee had to draw up and adopt on a collegiate basis. In the absence of any tangible evidence, the Court cannot base its decision, in that regard, solely on the statements of the Parliament. 123 Lastly, the Parliament cannot properly rely on its difficulties in designing the procedure to handle a request for assistance from an APA relating to the behaviour of Members of that institution in order to avoid its obligations both under Article 31 of the Charter (see, to that effect, judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 85) and under Articles 12a and 24 of the Staff Regulations (see, by analogy, judgment of 5 February 2016, GV v EEAS, F‑137/14, EU:F:2016:14, paragraph 77) to ensure that the working conditions of its officials and other members of staff respect their health, safety and dignity and, accordingly, to provide them in good time with procedures that ensure that their working conditions meet those requirements. Moreover, given that Article 12a of the Staff Regulations came into force on 1 May 2004 and that the judgment in CH v Parliament (F‑129/12, EU:F:2013:203) was delivered on 12 December 2013, the Parliament cannot reasonably argue that it needed that many years to design and set up a body such as the APA Special Advisory Committee. In addition, that advisory committee was created on 14 April 2014 and only issued its opinion 14 months after the applicant, X and CN were heard. 124 The Court must therefore hold that the handling of the request for assistance lasted a relatively long time with no genuine justification, as the Secretary-General of the European Parliament moreover partially agreed in the decision rejecting the complaint. Accordingly, in the light of the very particular importance such a procedure has for the alleged victim, and of the AECE’s delaying conduct in handling it, the Court must hold that the reasonable time principle has been infringed. 125 In the light of those circumstances, which have caused the applicant non-material harm that, at this stage in the proceedings, has been compensated by the AECE only to the extent of EUR 1 500, and of the fact, to which the applicant refers in her observations of 10 July 2018, that the Parliament’s refusal to implement the measure of inquiry ordered by the General Court aggravated that non-material harm, the Court, quantifying ex æquo et bono all the non-material harm suffered by the applicant, finds that EUR 8 500 constitutes appropriate compensation for the part of the non-material harm distinct from the illegality found under the first plea in law and not appropriately and fully compensated by annulment of the contested decision. Costs 126 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. 127 Since the Parliament must be regarded as having been unsuccessful in the essential aspects of the forms of order sought by it, it is appropriate to order it to bear its own costs and to pay those incurred by the applicant. On those grounds, THE GENERAL COURT (First Chamber) hereby: 1. Annuls the decision of the European Parliament of 20 March 2017, by which the authority empowered to conclude contracts of employment of that institution rejected the request for assistance made by CH on 22 December 2011; 2. Orders the Parliament to pay CH, in respect of non-material harm suffered, an amount of EUR 8 500; 3. Dismisses the action as to the remainder; 4. Orders the Parliament to pay the costs. Pelikánová Nihoul Svenningsen Delivered in open court in Luxembourg on 13 December 2018. [Signatures] * Language of the case: French.