JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
3 May 2023 (*)
(Law governing the institutions – Rules governing the payment of expenses and allowances to Members of Parliament – Parliamentary assistance allowance – Recovery of sums unduly paid – Obligation to state reasons – Independence of Members – Error of assessment)
In Case T‑249/21,
SN, represented by P. Eleftheriadis, Barrister,
applicant,
v
European Parliament, represented by N. Görlitz, T. Lazian and M. Ecker, acting as Agents,
defendant,
THE GENERAL COURT (Fifth Chamber),
composed, at the time of the deliberations, of D. Spielmann, President, R. Mastroianni and I. Gâlea (Rapporteur), Judges,
Registrar: M. Zwozdziak-Carbonne, Administrator,
having regard to the written part of the procedure,
further to the hearing on 16 November 2022,
gives the following
Judgment
1        By her action based on Article 263 TFEU, the applicant, SN, seeks annulment of the decision of the Secretary-General of the European Parliament of 21 December 2020 concerning the recovery of a sum of EUR 196 199.84 unduly paid by way of parliamentary assistance allowance (‘the contested decision’) and of the corresponding debit note of 15 January 2021 (‘the debit note’).
Background to the dispute
2        The applicant was a Member of Parliament from 2014 to 2019.
3        On 17 May 2016, the Parliament concluded with A (‘the parliamentary assistant’), on the basis of Article 5a of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), an employment contract as a full-time accredited parliamentary assistant in Brussels (Belgium) for the period from 17 May 2016 to the end of the parliamentary term. The contract stated that the parliamentary assistant would primarily perform drafting and advisory duties, but could also be called upon to provide administrative support and perform secretarial duties.
4        On 26 October 2016, the European Anti-Fraud Office (OLAF) opened an investigation as regards certain Members of the Parliament and some of their assistants concerning, in particular, parliamentary assistance allowance which had been paid to them.
5        On 8 November 2018, OLAF informed the applicant that she was one of the persons concerned by its investigation and invited her to submit her observations on the facts concerning her, which she did by email of 11 December 2018 (Case OF/2016/0836/A 1).
6        On 30 November 2018, following the resignation of the parliamentary assistant, his employment contract came to an end.
7        On 26 March 2019, OLAF issued its final report and concluded that the parliamentary assistant had been absent from his place of work for more than half of the scheduled working days during the period from 1 January to 30 June 2017.
8        On 16 April 2020, the Secretary-General of the Parliament, on the basis of OLAF’s report and the Parliament’s preliminary assessment, informed the applicant that a recovery procedure had been initiated, in accordance with Article 68 of the Decision of the Bureau of the Parliament of 19 May and 9 July 2008 concerning implementing measures for the Statute for Members of the European Parliament (OJ 2009 C 159, p. 1) (‘the implementing measures’) and invited her to submit her observations within two months.
9        By letter of 12 June 2020, the applicant submitted her observations to the Secretary-General of the Parliament, together with a file comprising 70 documents intended to establish that the parliamentary assistant actually carried out the work.
10      By the contested decision, the Secretary-General of the Parliament took the view that, during the period from 17 May 2016 to 30 November 2018, the sum of EUR 196 199.84 had been unduly paid in connection with the employment of the parliamentary assistant and had to be recovered from the applicant. It also instructed the Parliament’s responsible authorising officer by delegation to effect that recovery.
11      On 15 January 2021, the Director-General of the Parliament’s Directorate-General (DG) for Finance, as the Parliament’s authorising officer by delegation, issued the debit note, bearing the number 7010000021, ordering the recovery of the sum of EUR 196 199.84 and requesting that the applicant pay that sum by 11 March 2021 at the latest.
12      On 3 March 2021, the Director-General of the Parliament’s DG for Finance communicated to the applicant the contested decision and the debit note.
Forms of order sought
13      The applicant claims that the Court should:
–        annul the contested decision in its entirety;
–        annul the debit notice in its entirety;
–        order the Parliament to pay the costs.
14      The Parliament contends that the Court should:
–        dismiss the action;
–        order the applicant to pay all the costs.
Law
15      In support of her action, the applicant relies on five pleas in law, alleging (i) infringement of Article 137 of the CEOS, (ii) failure to apply the correct standard for ‘undue payment’ under Articles 33 and 68 of the implementing measures, (iii) infringement of a Member’s right to freedom and independence, (iv) failure to state reasons for the contested decision and (v) errors of assessment.
The first and second pleas, alleging, respectively, infringement of Article 137 of the CEOS and failure to apply the correct standard for ‘undue payment’ under Articles 33 and 68 of the implementing measures
16      The applicant takes the view that the Parliament infringed Article 137 of the CEOS by relying on an incorrect legal basis. It is true that Article 68 of the implementing measures applies generally. However, it must be supplemented by the provisions concerning sums unduly paid under Article 137 of the CEOS and Article 85 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) to which Article 137 of the CEOS refers. Likewise, the case-law is incomplete, in so far as it does not address the question of how Article 137 of the CEOS applies to cases of recovery. According to the applicant, there can only be recovery if the recipient was aware that there was no due reason for the payment or if the fact of the overpayment was patently such that he or she could not have been unaware of it. In the present case, she was not aware of the undue nature of any payment and, therefore, cannot be held liable for that payment. In addition, she states that a Member of Parliament must be regarded as a recipient of an accredited parliamentary assistant’s salary within the meaning of Article 85 of the Staff Regulations. Accordingly, the Parliament allegedly erred in law by not taking into account the criterion of ‘awareness’ in order to order recovery of the sums paid.
17      Furthermore, the contested decision is based on a misinterpretation of Article 33 of the implementing measures. It is wrong to assume that a payment is undue when it corresponds to unsatisfactory work or work which does not fall within the Member’s mandate. Thus, no account is taken of the employment relationship between the Member and her assistant and of the latter’s engagement, which exists even if it fails to produce good results. The question of whether a salary is duly paid is determined by employment law and the payment of a salary is due by virtue of a contract. That salary would be unduly paid only where a breach of the terms of the contract is established and not each time the parliamentary assistant fails to perform a task properly. Accordingly, the sums could only have been duly paid.
18      In addition, according to the applicant, the term ‘assistance’ could be interpreted in different ways. It could refer either to the results of the parliamentary assistance itself, which entails a narrow view of assistance, or the employment relationship between the Member and his or her assistant, which would require a broad interpretation of that term. The applicant considers that the two approaches coexist in the case-law and that the broad interpretation is to be preferred. Therefore, it is necessary to prove the overall genuine employment relationship between the Member and his or her assistant, and not the daily output of the latter’s work. Article 21 of Decision 2005/684/EC, Euratom of the European Parliament of 28 September 2005 adopting the Statute for Members of the European Parliament (OJ 2005 L 262, p. 1; ‘the Statute for Members’) supports that interpretation in so far as the expenses paid by the Parliament are intended for having staff employed under a contract and not for the purchase of ad hoc services.
19      The applicant considers that the Parliament did not assess the overall employment relationship between the Member and the parliamentary assistant and relied on an examination of the latter’s activities. According to the applicant, an error of law was committed by adopting such a restrictive interpretation. In addition, the applicant submits that several factors are capable of proving a genuine employment relationship. She concludes from this that, if most of that evidence had not been excluded as inadmissible, the Parliament would have considered that the engagement of the parliamentary assistant had been genuine and effective.
20      Lastly, the applicant considers that the provisions of the CEOS relating to accredited parliamentary assistants are included in the system of implementing measures. She takes the view that the purpose of the CEOS, the implementing measures and the Financial Regulation was to form a single and coherent system of financial responsibility. She concludes by taking the view that the cases from which the case-law has arisen are different from the case at issue, since the employment contract in those cases had been breached from the outset in the absence of any work.
21      The Parliament disputes that line of argument.
22      It should be borne in mind that, under Article 21 of the Statute for Members and, in particular, paragraphs 1 and 2 thereof, the Parliament is to defray the expenses actually incurred in employing personal staff freely chosen by Members for the assistance to which they are entitled. Furthermore, it should be noted that Article 21(3) of the Statute for Members states that the Parliament is to lay down the conditions for the exercise of that right and that the implementing measures, referred to in paragraph 8 above, were adopted pursuant to that provision.
23      The case-law has also made it clear that the conditions for exercising the mechanism for defraying parliamentary assistance expenses were defined by the implementing measures. Thus, that mechanism is triggered by the Member when he or she submits his or her application for defrayal of expenses to the administration, together with the contract concluded with the assistant, stating the duties of the latter (judgment of 14 July 2021, Rochefort v Parliament, T‑172/20, not published, EU:T:2021:439, paragraph 39).
24      In that regard, it should be borne in mind that, according to the second sentence of Article 33(1) of the implementing measures, the Parliament is to defray expenses actually incurred and arising wholly and exclusively from the employment of one or more assistants, in accordance with those measures.
25      Under the first sentence of Article 33(2) of the implementing measures, only expenses for assistance that is necessary and directly linked to the exercise of a Member’s parliamentary mandate may be defrayed.
26      Under Article 68(1) of the implementing measures, any sum unduly paid pursuant to that provision is to be recovered and the Secretary-General of the Parliament is to issue instructions with a view to recovery of those sums from the Member concerned.
27      Article 68(2) of the implementing measures states that any decision concerning the recovery is to be consistent with the requirement that Members should be able to exercise their mandate effectively and with the smooth running of Parliament. Before any decision is taken, the Member concerned is to be heard by the Secretary-General of the Parliament.
28      According to settled case-law, since the definition of the concept of ‘parliamentary assistance’ is not a matter for the discretion of Members, they are not free to apply for reimbursement of expenses that have no connection with the employment or engagement of the services of such assistants (judgments of 16 May 2018, Troszczynski v Parliament, T‑626/16, not published, EU:T:2018:270, paragraph 114, and of 14 July 2021, Rochefort v Parliament, T‑172/20, not published, EU:T:2021:439, paragraph 43).
29      Since the need to demonstrate that work was actually carried out by the accredited parliamentary assistant stems directly, inter alia, from Articles 33 and 68 of the implementing measures, the Parliament is to meet only the expenses actually incurred and arising wholly and exclusively from the employment of one or more assistants, which means that the reality of those expenses must be demonstrated by the Member concerned (judgments of 29 November 2017, Bilde v Parliament, T‑633/16, not published, EU:T:2017:849, paragraph 119; of 14 July 2021, Rochefort v Parliament, T‑170/20, not published, EU:T:2021:437, paragraph 43; and of 8 September 2021, Griesbeck v Parliament, T‑10/21, not published, EU:T:2021:542, paragraph 40).
30      It follows that, in the event of a check relating to the use of parliamentary assistance expenses, the Member concerned must be able to prove that the amounts received were used to cover expenditure actually incurred and resulting wholly and exclusively from the employment of one or more assistants, as provided for in the second sentence of Article 33(1) of the implementing measures, so that it is incumbent on the Member concerned to be able to produce the relevant supporting documents and thus to keep them, even in the absence of an express obligation to that effect under EU law (judgment of 14 July 2021, Rochefort v Parliament, T‑170/20, not published, EU:T:2021:437, paragraph 44; see also, to that effect, judgments of 29 November 2017, Montel v Parliament, T‑634/16, not published, EU:T:2017:848, paragraph 122, and of 7 March 2018, Gollnisch v Parliament, T‑624/16, not published, EU:T:2018:121, paragraph 111).
31      Furthermore, it should be recalled that the legality of the legal framework set out above has been reaffirmed, since the General Court, confirmed on appeal by the Court of Justice, rejected pleas of illegality raised in respect of Articles 33 and 68 of the implementing measures (judgments of 30 June 2021, Mélin v Parliament, T‑51/20, not published, EU:T:2021:398, paragraphs 24 to 62, and of 14 July 2021, Arnautu v Parliament, T‑740/20, not published, EU:T:2021:444, paragraphs 20 to 55).
32      In the present case, in accordance with paragraphs 22 to 30 above, the applicant received payment of the parliamentary assistance expenses under Article 33 of the implementing measures, adopted pursuant to the Statute for Members.
33      In the first place, it should be recalled that Article 137 of the CEOS, on which the applicant relies, refers to Article 85 of the Staff Regulations and concerns the recovery of sums unduly received. That article is thus intended to apply to recovery procedures between the accredited parliamentary assistant and the Parliament. By contrast, the recovery procedure under Article 68 of the implementing measures concerns the parliamentary assistance allowance and is addressed to the applicant as a former Member. In the light of the foregoing, contrary to what the applicant claims, Article 137 of the CEOS, read in conjunction with Article 85 of the Staff Regulations, was not applicable to the present case.
34      It was therefore without error of law that the contested decision relied on Article 68 of the implementing measures in order to recover the costs of parliamentary assistance.
35      In the second place, it should be pointed out that no distinction can be drawn in the case-law as regards the existence alleged by the applicant, on the one hand, of a strict interpretation of the concept of ‘assistance’, which would involve proving specific activities provided in the context of that assistance, and, on the other hand, of a broad interpretation in which the applicant would merely have to prove the existence of an employment relationship and a proper engagement.
36      In that regard, the case-law cited in paragraph 30 above cannot demonstrate, as the applicant claims, the existence of an alleged ‘broad view’ of assistance. Thus, that case-law is also relied on in judgments which, according to the applicant, show an alleged ‘narrow view’ of assistance. Moreover, it is in no way inconsistent with the requirement to prove, in the present case, that the activity of the parliamentary assistant corresponds to assistance that is necessary and directly linked to the exercise of the applicant’s mandate. On the contrary, it generally constitutes a prerequisite for the specific analysis of the evidence produced by the Members in question.
37      In that regard, it must be borne in mind that, according to the case-law, the fact that an accredited parliamentary assistant actually worked may be demonstrated by numerous specific items of evidence. That may take the form, inter alia, of the production of diaries, attesting to the existence of appointments or the activity of the accredited parliamentary assistant, of emails written by the latter and exchanged, in particular, with the Member concerned, as well as of documents, including in electronic form, emanating from the accredited parliamentary assistant (see, to that effect, judgment of 7 March 2018, Gollnisch
v Parliament, T‑624/16, not published, EU:T:2018:121, paragraph 111).
38      In that context, it must be held that the contested decision correctly established that it was for the applicant to adduce evidence of the parliamentary assistant’s activity. Consequently, the applicant’s claim that the contested decision is vitiated by an error of law when it states that she had to prove the reality of the assistance provided by the parliamentary assistant must be rejected.
39      As to the remainder, in so far as the applicant challenges the Parliament’s analysis of the content of the documents that she produced, that argument falls within the scope of the examination of the fifth plea, alleging errors of assessment.
40      Accordingly, in the light of the foregoing, the first and second pleas, examined together, must be rejected.
The third plea, alleging infringement of the principle of the freedom and independence of Members
Admissibility of the arguments alleging failure to recognise the risk of a chilling effect on Members’ freedom and independence
41      The Parliament contends that the applicant’s arguments alleging failure to recognise the risk of a chilling effect on the freedom and independence of Members are inadmissible in that they do not satisfy the requirements of Article 76(d) of the Rules of Procedure of the General Court. It maintains that the applicant’s argument concerning disregard of a risk of a chilling effect on the freedom and independence of Members does not contain any coherent legal development relating to an infringement of a clearly identified rule of law.
42      It should be borne in mind that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 thereof, and under Article 76(d) of the Rules of Procedure, an application must contain the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law. Those elements must be sufficiently clear and precise to enable the defendant to prepare its defence and the General Court to rule on the application, if necessary without any further information. In order to guarantee legal certainty and the sound administration of justice, it is necessary, for an action to be admissible, that the essential matters of law and fact relied on are stated, at least in summary form, coherently and intelligibly in the application itself (see order of 18 September 2018, eSlovensko
v Commission, T‑664/17, not published, EU:T:2018:559, paragraph 29 and the case-law cited).
43      In the present case, it is true that the applicant’s arguments alleging failure to recognise the risk of a chilling effect on the freedom and independence of Members lack clarity in certain respects. However, they may be understood as meaning that she claims that the procedure which led to the adoption of the contested decision infringes her right to assistance and, therefore, the principle of the freedom and independence of Members.
44      Consequently, the applicant’s arguments are presented in a sufficiently comprehensible manner in the application, thus enabling the Parliament to prepare its defence and the Court to rule on the action. Accordingly, the plea of inadmissibility raised by the Parliament must be rejected.
Substance
45      The applicant considers that the contested decision does not comply with the principle of the freedom and independence of Members. In her view, Article 21 of the Statute for Members establishes a right for Members to be assisted by staff whom they employ and freely choose. Therefore, this is not the provision of an ad hoc service. The implementing measures take into account the special nature of that employment relationship in a limited way only. In the present case, the contested decision allegedly disregards the significance of the mechanism of assistance to Members and the link between that assistance and the principle of freedom and independence. The mere reference to the fact that the contested decision was adopted having had ‘regard to’ the principles of the Statute for Members, without referring to any specific provision, does not prove that the principle of freedom and independence guaranteed by that Statute was taken into account.
46      In addition, the applicant claims that there is a risk of a chilling effect on Members. She argues that the amount of the sum to be recovered is likely to cause her to become bankrupt and that that procedure amounts to a ‘punitive’ action. Moreover, since she did not receive the sums covered by the recovery procedure, she was unable to return them. Furthermore, in the case of such a claim for compensation, Members may find that their future well-being depends on the assessments of Parliament officials under the control of other Members who may come from rival political groups. Accordingly, the applicant considers that such a procedure is governed by unclear rules and by bodies that are not independent. Lastly, she considers that the rules for the recovery of salaries cannot be stricter than those established for officials and authorising officers, whose liability is called into question only if they acted intentionally or through gross negligence.
47      The Parliament contests that line of argument.
48      It is apparent from Article 2 TEU that the European Union is founded, inter alia, on the value of democracy. It also follows from Article 10(1) and (2) TEU that the functioning of the European Union is founded on representative democracy, citizens being directly represented at Union level in the Parliament (judgment of 19 June 2018, Le Pen v Parliament, T‑86/17, not published, EU:T:2018:357, paragraph 175).
49      In this respect, it is important to stress that the guarantee of independence, including financial independence, of Members of Parliament, who as representatives of the people are supposed to serve the general interest of the people, is a general principle inherent in any system of democratic parliamentary representation (see judgment of 19 June 2018, Le Pen v Parliament, T‑86/17, not published, EU:T:2018:357, paragraph 176 and the case-law cited).
50      In order to ensure the implementation of that principle, first, Article 2 of the Statute for Members provides that Members are to be free and independent and, secondly, Article 9 thereof states that Members are to be entitled to an appropriate salary to safeguard their independence. Similarly, Article 2 of the Rules of Procedure of the Parliament provides, inter alia, that Members are to exercise their mandate independently.
51      In the present case, it should be noted at the outset that the contested decision does not concern the applicant’s parliamentary allowance, which, pursuant to Article 9 of the Statute for Members, safeguards her independence, but rather the parliamentary assistance allowance paid under Article 21 of that Statute, referred to in paragraph 22 above.
52      Furthermore, in so far as the parliamentary assistance allowance could be regarded as also intended to safeguard the independence of Members, it must be borne in mind that payment of that allowance by the Parliament is subject, as is apparent from Article 21(2) of the Statute for Members, to the condition that the expenses relating to the employment of staff have actually been incurred. In that regard, Article 33(2) of the implementing measures states, in particular, that only expenses for assistance that is necessary and directly linked to the exercise of the Members’ parliamentary mandate may be defrayed. Article 62 of the implementing measures also provides that sums paid, inter alia, by way of parliamentary assistance allowance are reserved exclusively for the funding of activities linked to the exercise of a Member’s mandate and may not be used to cover personal expenses or to fund grants or donations of a political nature (judgment of 19 June 2018, Le Pen v Parliament, T‑86/17, not published, EU:T:2018:357, paragraph 179).
53      Moreover, it is settled case-law that, in accordance with Article 68 of the implementing measures, the Bureau of the Parliament conferred on the Secretary-General of the Parliament the power to take decisions on the recovery of sums unduly paid to a Member pursuant to those measures. The fact that the Parliament, through its Bureau, entrusts its Secretary-General with administrative control of the expenses linked with the parliamentary assistance allowance and for adopting decisions concerning sums unduly paid in that context has neither the purpose nor the effect of calling into question the independence of the Member concerned. It is merely a question of ensuring that only parliamentary assistance expenses that comply with the implementing measures are paid (judgments of 29 November 2017, Bilde v Parliament, T‑633/16, not published, EU:T:2017:849, paragraphs 59 and 60; of 7 March 2018, Gollnisch v Parliament, T‑624/16, not published, EU:T:2018:121, paragraphs 49 and 50; and of 19 June 2018, Le Pen v Parliament, T‑86/17, not published, EU:T:2018:357, paragraphs 180 and 181).
54      It should also be noted, in that context, that Article 68(2) of the implementing measures provides that any decision relating to recovery is to be consistent with the requirement that Members should be able to exercise their mandate effectively and with the smooth running of Parliament (judgment of 19 June 2018, Le Pen v Parliament, T‑86/17, not published, EU:T:2018:357, paragraph 182).
55      It follows that the contested decision, by ordering the recovery of sums unduly paid by way of parliamentary assistance allowance under the procedure described in paragraphs 53 and 54 above, does not infringe the applicant’s freedom and independence.
56      Moreover, there is nothing to suggest that, by adopting the contested decision on the basis of Article 68 of the implementing measures, the Secretary-General of the Parliament undermined the applicant’s independence.
57      In the first place, as regards the claim that the contested decision refers merely in its preamble to the principles of the Statute for Members, without mentioning any specific provision, it should be noted that the preamble refers to the Statute for Members in general and to Article 21 thereof. That article reaffirms that Members are entitled to assistance from personal staff whom they have freely chosen. Therefore, the absence of a specific reference to Article 2 of the Statute for Members in the contested decision does not mean that the Parliament did not take into account the principle of the freedom and independence of Members.
58      In the second place, as regards the applicant’s assertions that the recovery procedure is likely to cause her to become bankrupt, is punitive in nature even though she did not personally receive the sums whose recovery is sought, has a chilling effect on Members in the absence of independent bodies overseeing it and should be based on another regime provided for by the Financial Regulation, it must be noted that the Secretary-General of the Parliament has merely implemented the applicable legal framework, consisting in particular of the implementing measures, the legality of which, moreover, has recently been confirmed by the Court (judgments of 30 June 2021, Mélin v Parliament, T‑51/20, not published, EU:T:2021:398, paragraphs 24 to 62, and of 14 July 2021, Arnautu v Parliament, T‑740/20, not published, EU:T:2021:444, paragraphs 20 to 55).
59      Furthermore, it should be pointed out that a recovery decision taken on the basis of the implementing measures is administrative in nature and is not in the nature of a criminal penalty. Moreover, as is apparent from paragraph 32 above, Members of the Parliament are entitled to have their parliamentary assistance costs defrayed. Therefore, it is irrelevant that the applicant did not personally receive the sums covered by the recovery procedure at issue. Finally, as regards the alleged lack of independence of the bodies involved in the procedure in question, it should be noted that, apart from the fact that the contested decision merely implemented the applicable legal framework, the decision was adopted by the Secretary-General and no political body has ever intervened, which the applicant does not dispute. The mere fact that the procedure provides, in the event of disagreement, for the intervention of the Quaestors, who are Members, and then the intervention of the Bureau of the Parliament, which is itself also composed of Members, does not mean that it is discretionary. Consequently, the applicant has not adduced any evidence capable of calling into question the finding that the contested decision does not infringe the principle of the freedom and independence of Members.
60      Accordingly, the third plea must be rejected.
The fourth plea, alleging a failure to state reasons for the contested decision
61      The applicant considers that the contested decision failed to state reasons in accordance with Article 296 TFEU. She accepts that the decision puts forward some reasons for the recovery of the sum of EUR 12 552. However, in respect of the balance of the sums claimed, namely EUR 183 647.84, she claims that there was a total failure to state reasons. The applicant alleges, in essence, an initial failure to state adequate reasons in which she criticises the distinction which was drawn between admissible and inadmissible evidence, the latter not having been taken into account subsequently, in her view. That selection was allegedly arbitrary and insufficiently reasoned. Consequently, the assessment of the facts was based on 10 documents only. The applicant concludes from this that the decision to exclude 60 out of a total of 70 documents compromised her ability to put forward her arguments, one year after she had ceased to be a Member of the Parliament and had lost access to her parliamentary email. Moreover, although not exhaustive, those documents covered the entire period of employment and were to be read in the light of her statements and those of her office manager.
62      The applicant alleges, in essence, a second inadequate statement of reasons in that the contested decision did not state the reasons for the recovery of the accredited parliamentary assistant’s salary for the periods not covered by the OLAF investigation. First, the applicant claims that OLAF provided information concerning the presence of the parliamentary assistant in the Parliament building only for the period from January to June 2017. Secondly, from those six months of investigation, the contested decision drew conclusions regarding periods which were not covered by the OLAF investigation. Accordingly, it follows that there is an inadequate statement of reasons, since the case-law requires an explanation as to why each item for which recovery has been sought was unduly paid.
63      Finally, while stating that she does not have the full final report from OLAF, the applicant argues that that report merely alleged that she failed to ensure that the parliamentary assistant was present at his office in the Parliament. The contested decision states that the employment was in some way fictitious, which is the only reason capable of justifying the repayment of the whole amount. However, that decision does not state either the reasons why it disagrees with OLAF or what justifies the recovery of the whole salary paid to the parliamentary assistant.
64      The applicant alleges, in essence, a third inadequate statement of reasons. The contested decision fails to state the reasons for the recovery of the whole salary for the period from 1 January to 30 June 2017, whereas OLAF reached a different conclusion by considering that the financial impact was proportionate to the days during which the parliamentary assistant was absent from his office.
65      The Parliament contests that line of argument.
66      As a preliminary point, it must be borne in mind that the obligation to state reasons established by Article 296 TFEU is an essential procedural requirement which must be distinguished from the question as to whether the reasons are well founded, which is concerned with the substantive legality of the measure at issue. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, those errors will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect. It follows that objections and arguments intended to establish that a measure is not well founded are irrelevant in the context of a plea alleging an inadequate statement of reasons or a lack of such a statement (judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 143). However, the fact that certain arguments may be inoperative in the context of a plea relating to the statement of reasons for the contested decision does not mean that those arguments are inoperative in the context of the examination of the error of assessment (see, to that effect and by analogy, judgment of 14 July 2021, Rochefort v Parliament, T‑172/20, not published, EU:T:2021:439, paragraph 33).
67      Furthermore, it is settled case‑law that the statement of reasons required by the second paragraph of Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measures in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of the second paragraph of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. In particular, the institution concerned is not obliged to take a position on all the arguments put forward before it by the interested parties, but need only set out the facts and legal considerations that are of essential importance to the scheme of the decision (see judgment of 14 July 2021, Rochefort v Parliament, T‑172/20, not published, EU:T:2021:439, paragraph 21 and the case-law cited).
68      In the present case, it should be noted that, in the contested decision, the Secretary-General of the Parliament first set out the entire administrative procedure and the exchanges with the applicant that led to the adoption of the contested decision. He also set out in detail the legal framework and the case-law applicable in the event of a check relating to the use of parliamentary assistance expenses. He recalled, in particular, the wording of Article 33(1) and (2), Article 62(1) and Article 68 of the implementing measures.
69      Next, the Secretary-General of the Parliament found, first, that the applicant had not succeeded in challenging the findings concerning her parliamentary assistant’s absences from his place of work between 1 January and 30 June 2017. Secondly, he considered that she had not adduced sufficient evidence that the sums defrayed by the Parliament covered only expenses actually incurred, resulting wholly and exclusively from the employment of her parliamentary assistant and corresponding to assistance that was necessary and directly linked to the exercise of her parliamentary mandate.
70      In that regard, the Secretary-General of the Parliament presented his assessment concerning the 70 documents provided by the applicant in order to demonstrate the existence of work on the part of the parliamentary assistant. Thus, first, he considered that the vast majority of those documents did not demonstrate work carried out by the parliamentary assistant. Secondly, he took the view that those documents did not prove any contribution on the part of the latter, owing to the failure to follow up the requests sent by the applicant. Thirdly, he considered that, while demonstrating certain activities, those documents did not appear to be linked to the applicant’s parliamentary mandate, either because she was specifically referred to as the health spokesperson of a national political party or because their content showed that the assistance was designed for the applicant as a national or local politician. Fourthly, he considered that certain documents contained statements of principle that had no probative value. Accordingly, the Secretary-General of the Parliament considered that only a few documents, demonstrating only modest activity, proved that the parliamentary assistant had worked in connection with the exercise of the applicant’s mandate and that that number was very limited in view of the relatively long duration of the contract. Consequently, he maintained that there was no overall impression of regular work and that the applicant had not shown that the sums paid by the Parliament covered expenses actually incurred, resulting wholly and exclusively from the employment of her parliamentary assistant and corresponding to assistance that was necessary and directly linked to the exercise of her parliamentary mandate.
71      Furthermore, the Secretary-General of the Parliament responded to the applicant’s arguments by pointing out that the Member was responsible for the use of the parliamentary assistance allowance allocated to her in accordance with the implementing measures and, where appropriate, was required to reimburse sums unduly paid to an accredited parliamentary assistant. Lastly, he pointed out that the absence of the accredited parliamentary assistant from his place of work during the majority of the working days of the period covered by the OLAF investigation and the lack of evidence of work carried out during that period had constituted prima facie evidence raising serious doubts as to the reality of the work of the parliamentary assistant and that those doubts concerned the entire duration of the contract, and not only the period covered by the OLAF investigation. Consequently, the Secretary-General of the Parliament stated that the applicant had been invited to provide evidence of the activities of her accredited parliamentary assistant, in accordance with the implementing measures.
72      As regards Annex 1 to the contested decision, to which that decision expressly refers, it contains a table setting out the analysis of the items of evidence produced by the applicant in order to demonstrate that the parliamentary assistant had worked in accordance with the implementing measures. That annex sets out, in accordance with the nature of those items, the position of the Secretary-General of the Parliament as to their admissibility as evidence of the work carried out by the parliamentary assistant. Thus, each document produced was analysed and found to be inadmissible as evidence if it did not attest to the work of the parliamentary assistant or if, although attesting to his work, it was not linked to the exercise of the applicant’s mandate. Lastly, it is apparent from that annex that the Secretary-General of the Parliament accepted, on that basis, the probative value of 10 documents for the purposes of the implementing measures.
73      In those circumstances, it must be held that the contested decision, read in conjunction with Annex 1 thereto, sets out to the requisite legal standard the reasons why the Secretary-General of the Parliament considered that the evidence produced by the applicant did not demonstrate that the accredited parliamentary assistant had worked in accordance with the implementing measures. In that regard, that decision refers to the difficulty, inter alia, of identifying the contribution of the parliamentary assistant or of establishing the link between certain of his activities and the applicant’s mandate as a Member of Parliament.
74      Thus, the statement of reasons for the contested decision, read in conjunction with Annex 1 thereto, supports the assessment of the Secretary-General of the Parliament that the evidence produced was insufficient to demonstrate the parliamentary assistant’s activity in accordance with the implementing measures.
75      The applicant’s arguments do not invalidate that finding.
76      First, the applicant claims that the allegedly inadmissible evidence was not taken into account in the conclusions drawn in the contested decision and was rejected without any statement of reasons. The Secretary-General of the Parliament, in rejecting 60 documents as ‘inadmissible as evidence’ of the parliamentary assistant’s work, gave reasons for that rejection, contrary to what the applicant claims. It is apparent from paragraphs 70 and 72 above that, both in the contested decision and in the table in Annex 1 thereto, the documents produced by the applicant were examined and that the Secretary-General of the Parliament justified their rejection as evidence of the work of the parliamentary assistant.
77      Secondly, the applicant claims, in essence, that the contested decision did not state the reasons for the recovery of the salary of the accredited parliamentary assistant for the periods not covered by the OLAF investigation and that the latter’s report merely alleged that she failed to ensure that the parliamentary assistant was present at his office in the Parliament. It is important to point out that the OLAF report is not the decisive factor on which the contested decision is based and that it is not the basis for either ‘the charge’ or ‘the acts alleged’ against the applicant. It should be pointed out that the procedure which led to the adoption of the OLAF report, which relates to the period from 1 January to 30 June 2017, and the procedure based on Article 68 of the implementing measures, which led to the adoption of the contested decision, are distinct from each other, notwithstanding the fact that the OLAF report and its recommendations gave rise to the second of those procedures. It is true that certain findings in the OLAF report are referred to in the contested decision. However, it is apparent from that decision that the Secretary-General of the Parliament carried out a specific assessment of the present case, based on the finding that, during the procedure referred to in Article 68 of the implementing measures, the applicant had not proved that the sums paid by the Parliament for parliamentary assistance had covered expenses actually incurred and resulting wholly and exclusively from the engagement of the parliamentary assistant within the meaning of the implementing measures.
78      Furthermore, as regards the claim that the contested decision does not state what would justify the recovery of the whole salary paid to the parliamentary assistant, it should be recalled that the Secretary-General of the Parliament found that only a few documents proved some work by the parliamentary assistant connected with the applicant’s mandate and that those documents referred to modest activities which had not taken more than a few minutes. He therefore concluded that there was no overall impression of regular work. Consequently, the contested decision sets out to the requisite legal standard the reasons why the Secretary-General of the Parliament considered that all the sums corresponding to the parliamentary assistant’s salary should be recovered.
79      Thirdly, the applicant’s argument that the Secretary-General of the Parliament reaches a different conclusion from OLAF concerning the recovery of the salary for the period from 1 January to 30 June 2017 does not imply an inadequate statement of reasons, since the contested decision is based on the finding that the applicant was unable to provide evidence of the work of her parliamentary assistant linked to her mandate.
80      Therefore, the fourth plea must be rejected.
The fifth plea, alleging errors of assessment
The place of work of the parliamentary assistant and OLAF’s finding regarding the presence of the parliamentary assistant in Brussels during the period from January to June 2017
81      First, the applicant takes the view that the contested decision contains an error of assessment in that the employment contract does not specify that the Parliament building was the parliamentary assistant’s place of work. It merely states that that place of work was in Brussels. She considers that the Parliament wrongly takes the view that the parliamentary assistant was required to work exclusively from a Parliament office. The only reference to the Parliament’s premises is indirect, by the reference in the employment contract to Article 5a of the CEOS.
82      Secondly, the contested decision wrongly claimed that, according to the conclusions of the OLAF report, the parliamentary assistant was not in Brussels for more than half of the working days of the period from January to June 2017. She submits that OLAF concluded that he was absent from the Parliament’s offices, but considers that he could have been in Brussels. Accordingly, the contested decision allegedly contains errors in respect of his presence on 25 separate dates since he was present in Brussels for 75 days out of 110, and not for 50 days.
83      Thirdly, the OLAF investigation did not take into account the employment contract and assumed that the place of work was exclusively the Parliament building even though the employment contract did not stipulate such an obligation. Furthermore, OLAF did not mention any breach of that contract. Finally, the applicant criticises the fact that the OLAF report found that the parliamentary assistant was absent from the Parliament on 61 days out of 110 during the period concerned, which would imply that it dismissed days when he was in Brussels and worked from home.
84      The Parliament contests that line of argument.
85      In the first place, it should be noted that it is apparent from the contested decision that the absence of the parliamentary assistant from his place of work for most of the working days during the period covered by the OLAF investigation was one of the factors which raised serious doubts as to whether he actually carried out work as the applicant’s parliamentary assistant. The Secretary-General stated that it was following that finding that the applicant had been invited to provide evidence of the work carried out by her parliamentary assistant for the entire contractual period, which she had failed to do.
86      It is thus apparent from the contested decision that it is based primarily, as is apparent from recital 35 thereof and paragraph 85 above, on the fact that the applicant has not proved that the sums paid by the Parliament for parliamentary assistance covered expenses actually incurred and arising wholly and exclusively from the employment of the parliamentary assistant within the meaning of the implementing measures and that, consequently, the sums paid in that regard had to be recovered.
87      Therefore, even if they were well founded, the applicant’s claims relating to the findings made in the contested decision concerning compliance with contractual obligations and obligations under the Staff Regulations concerning the place of work of the parliamentary assistant cannot suffice to call into question the lawfulness of that decision.
88      In the second place, it should be noted that there is confusion in paragraph 7 of the contested decision between the presence of the parliamentary assistant in Brussels and his presence in the Parliament’s premises in that city. The Secretary-General of the Parliament referred in that paragraph to the fact that OLAF had concluded in its report that the parliamentary assistant had not been in Brussels for more than half the working days during the period covered by its investigation, whereas that report refers only to his place of work, namely the premises of the Parliament in Brussels. However, in the context of his analysis, the Secretary-General of the Parliament correctly referred to the parliamentary assistant’s absences as absences from his place of work, and not from Brussels.
89      Moreover, that confusion when referring to the findings of the OLAF report is not such as to call into question the legality of the contested decision. As noted in paragraph 77 above, the OLAF report is not the decisive factor on which the contested decision is based.
90      Therefore, despite the confusion in paragraph 7 of the contested decision, the legality of that decision cannot be faulted.
91      In the third place, as regards the applicant’s criticisms of the OLAF report, it is sufficient to refer to the findings set out in paragraphs 77 and 89 above and to recall that the applicant’s claims relating to the findings of the OLAF report cannot call into question the legality of the contested decision.
92      Therefore, the applicant’s arguments relating to the place of work of the parliamentary assistant and to OLAF’s findings must be rejected.
The contract of employment (document No 1)
93      The applicant considers the parliamentary assistant’s employment contract to be an essential piece of evidence of the employment relationship, while acknowledging that it cannot prove the work done.
94      The Parliament contests that line of argument.
95      It should be recalled that, as the Secretary-General of the Parliament held in the contested decision, the employment contract is not of such a nature as to constitute in itself proof of the work carried out by the accredited parliamentary assistant (see, to that effect, judgment of 14 July 2021, Rochefort v Parliament, T‑170/20, not published, EU:T:2021:437, paragraph 89). It can only possibly constitute a beginning of proof, in the sense that it must necessarily be completed by other relevant evidence (see, to that effect, judgment of 14 July 2021, Rochefort v Parliament, T‑170/20, not published, EU:T:2021:437, paragraph 90).
96      The employment contract merely states, inter alia, that the accredited parliamentary assistant was required, in the context of the exercise of the applicant’s mandate, primarily to perform drafting and advisory duties, but could also be called upon to provide administrative assistance and perform secretarial duties. It may thus constitute evidence of the nature and scope of the accredited parliamentary assistant’s obligations. On the other hand, it does not demonstrate that those obligations were actually fulfilled and that, in the present case, there was in fact assistance that was necessary and directly linked to the exercise of the applicant’s parliamentary mandate in accordance with the implementing measures.
97      Accordingly, the applicant’s argument relating to document No 1 must be rejected.
Documents Nos 7a, 25, 26, 33, 38, 39, 44, 45, 47, 48, 52, 56, 56a, 56b, 57, 61 to 63, 63a, 64a, 65, 65a, 66, 68 and 69
98      As regards documents Nos 7a, 25, 26, 33, 38, 39, 44, 45, 47, 48, 52, 56, 56a, 56b, 57, 61 to 63, 63a, 64a, 65, 65a, 66, 68 and 69 relied on by the applicant, the applicant merely claims that the same error was made as in respect of the employment contract. She claims that those documents describe a genuine employment relationship and that they cannot be regarded as inadmissible evidence.
99      The Parliament contests that line of argument.
100    In the present case, contrary to what the applicant claims, it must be held that the documents relied on were indeed examined by the Secretary-General of the Parliament, as is apparent from paragraph 72 above. Furthermore, it must be pointed out that the applicant has not adduced any evidence to refute the findings in the contested decision that those documents do not show that the obligations of the parliamentary assistant were actually fulfilled in accordance with the implementing measures.
101    Accordingly, the applicant’s argument relating to documents Nos 7a, 25, 26, 33, 38, 39, 44, 45, 47, 48, 52, 56, 56a, 56b, 57, 61 to 63, 63a, 64a, 65, 65a, 66, 68 and 69 must be rejected.
The press release concerning antibiotic resistance (document No 2)
102    The applicant contests the rejection of a draft statement on antibiotic resistance prepared by the parliamentary assistant as probative evidence of the assistant’s work on the ground that there was no link with the exercise of the mandate of a Member of Parliament. She considers that the question of whether or not the work carried out is linked to the mandate is separate from the question of whether the evidence is admissible for the purpose of establishing the employment relationship. The concept of a ‘mandate’ is imprecise and it is not possible to challenge it. Moreover, she states that antibiotic resistance is a cross-border health threat that has been the subject of European Union action.
103    The Parliament considers that, although the document in question demonstrates that work was actually carried out by the parliamentary assistant, it has no link to the exercise of the mandate of a Member of Parliament. In that regard, the definition of the term ‘mandate’ is broad, since it depends on the areas in which a Member wishes to focus his or her action. However, the document at issue does not fall within the scope of that definition since it presents the applicant as the health spokesperson for a national political party, which falls outside her mandate as a Member of the European Parliament. Consequently, the probative value of the document in question was rightly ruled out.
104    In the present case, the document at issue is document No 2, namely a press release concerning antibiotic resistance, drafted and sent to the applicant on 20 May 2016 by the parliamentary assistant. In the contested decision, it should be noted that the Secretary-General of the Parliament considered that that document, while demonstrating that the parliamentary assistant had carried out certain activities, did not show that those activities were linked to the applicant’s mandate.
105    In that regard, first of all, it should be noted that the fact that the applicant is referred to simultaneously in document No 2 both as health spokesperson for a national political party and as a United Kingdom MEP is not decisive as to whether there is a link with her mandate as a Member of Parliament.
106    Next, despite the fact that document No 2 comes after a report by a member of the House of Lords (United Kingdom), it concerns a subject, antibiotic resistance, which is presented in a sufficiently general manner and is likely to cover a context at both national and European Union level. In that regard, reference is made, inter alia, to large pharmaceutical companies. Consequently, in the circumstances of the present case, these two aspects, national and European Union, appear indissociable. Accordingly, it follows that document No 2 has probative value and demonstrates an activity of the parliamentary assistant that is necessary and directly linked to the exercise of the applicant’s mandate.
107    Therefore, as the applicant maintains, document No 2 was wrongly excluded by the Secretary-General of the Parliament.
Documents Nos 7, 9, 11, 12, 14 to 18, 20 to 24, 28, 31, 32, 34, 36, 37 and 40 to 42
108    As regards documents Nos 7, 9, 11, 12, 14 to 18, 20 to 24, 28, 31, 32, 34, 36, 37 and 40 to 42 relied on by the applicant, the applicant merely claims that the same error was made as for document No 2 and that those documents are evidence of an employment relationship.
109    The Parliament contests that line of argument.
110    In that regard, it must be noted that the applicant has not adduced any evidence to refute the findings made in the contested decision that the documents in question do not demonstrate work connected with the exercise of her mandate.
111    Accordingly, the applicant’s argument relating to documents Nos 7, 9, 11, 12, 14 to 18, 20 to 24, 28, 31, 32, 34, 36, 37 and 40 to 42 must be rejected.
The email concerning tampon tax (document No 3)
112    The applicant relies on an email in which she asked the parliamentary assistant to draft a text concerning the vote in Parliament on a tax on tampons, which she claims attests to the existence of an employment relationship.
113    The Parliament contests that line of argument.
114    It should be noted that the Secretary-General of the Parliament took the view that the email in question, dated 27 May 2016 and corresponding to document No 3, addressed to the parliamentary assistant and another person, was not acceptable as evidence, on the ground that it did not demonstrate any contribution by the said assistant, due to the lack of evidence of follow-up.
115    In that regard, it must be stated that the email analysed cannot be linked to any response from the parliamentary assistant. Its content alone does not allow the conclusion that the said assistant worked in accordance with the implementing measures (see, to that effect, judgment of 14 July 2021, Rochefort v Parliament, T‑172/20, not published, EU:T:2021:439, paragraph 111).
116    Accordingly, the applicant’s argument relating to document No 3 must be rejected.
Documents Nos 4, 4a, 19, 29, 30, 35, 43, 49 and 50
117    The applicant claims that there was an error in the contested decision as regards documents Nos 4, 4a, 19, 29, 30, 35, 43, 49 and 50, which, according to the applicant, attest to the existence of a continuous employment relationship.
118    The Parliament disputes that line of argument.
119    In the present case, the Secretary-General of the Parliament took the view that documents Nos 4, 4a, 19, 29, 30, 35, 43, 49 and 50 were not acceptable as evidence, on the ground that they did not demonstrate the existence of a contribution by the parliamentary assistant, due to the lack of evidence of follow-up.
120    In that regard, it must be noted that the applicant has not adduced any evidence to refute the findings made in the contested decision.
121    Accordingly, the applicant’s argument relating to documents Nos 4, 4a, 19, 29, 30, 35, 43, 49 and 50 must be rejected.
The press release concerning motor neurone disease (document No 5)
122    The applicant considers that document No 5, consisting of an exchange of emails of 1 June 2016 between the parliamentary assistant and herself concerning a draft press release on the diagnosis of motor neurone disease, demonstrates the existence of an employment relationship.
123    The Parliament contests that line of argument.
124    In the present case, the Secretary-General of the Parliament noted that the applicant was presented as the health spokesperson for a political party in the United Kingdom. Consequently, he considered that document No 5 did not demonstrate work connected with the exercise of the applicant’s mandate.
125    In that regard, it must be noted, as has already been pointed out in paragraph 105 above, that the fact that the applicant is referred to simultaneously in document No 5 both as health spokesperson for a national political party and as a United Kingdom MEP is not decisive as to whether there is a link with her mandate as a Member of Parliament.
126    Furthermore, it must be pointed out, contrary to what has been stated in paragraph 106 above, that the context of the press release at issue is entirely national, with a reference to a local association. Thus, it is stated that that association recognises that motor neurone disease is difficult to diagnose but that it encourages general practitioners to be more vigilant. It is also pointed out that, in the United Kingdom, approximately 5 000 people are suffering from this incurable disease. Furthermore, the press release in question addresses the problem of access to care, with one in five people having to wait up to a year to see a brain specialist, which is a matter that falls within a national context. Accordingly, it must be noted that the applicant has not adduced any evidence of a link between document No 5 and the exercise of her mandate as a Member of Parliament.
127    Consequently, the applicant’s argument relating to document No 5 must be rejected.
The emails exchanged concerning a radio interview (document No 6)
128    The applicant disputes the rejection of document No 6, consisting of an exchange of emails between the parliamentary assistant and herself concerning the organisation of a radio interview. She considers that they attest to his assistance in her role as a Member of the Parliament.
129    The Parliament contests that line of argument.
130    It should be noted that the Secretary-General of the Parliament considered that document No 6 did not make it possible to understand the context and subject matter of the radio interview. Therefore, it considered that that document was not acceptable as evidence, since no evidence of a link with the mandate of the applicant as a Member of the Parliament had been adduced.
131    In the present case, it should be noted that neither the emails in document No 6 nor the explanation provided by the applicant at the hearing make it possible to understand the context and the subject matter of the radio interview in question. Furthermore, it must be stated, as the Parliament contends, that the request for an interview was addressed to the press officer of the applicant’s party. Accordingly, that document does not attest to work of the parliamentary assistant that is necessary and directly linked to the exercise of the applicant’s mandate.
132    Consequently, the applicant’s argument relating to document No 6 must be rejected.
The letter to the local press (document No 8)
133    The applicant claims that the contested decision does not explain why communicating with the electorate by means of a letter to a newspaper published in her constituency is not within her mandate.
134    The Parliament considers that, although the exchange of emails constituting document No 8 demonstrates that work was actually carried out by the parliamentary assistant, it has no link to the exercise of the applicant’s mandate. The applicant is presented in that letter as health spokesperson for a political party in the last general elections in the United Kingdom. In addition, that document appears to be linked to the Brexit campaign and the related referendum. Accordingly, document No 8 was rightly rejected.
135    It should be noted that the Secretary-General of the Parliament considered that document No 8, consisting of an exchange of emails of 4 July 2016 concerning a letter written by a local assistant and addressed to the parliamentary assistant and to a press officer for review, was not acceptable as evidence, on the ground that it did not present any evidence of a link with the applicant’s mandate as a Member of Parliament.
136    In the present case, it must be pointed out, first of all, as has been stated in paragraphs 105 and 125 above, that the fact that the applicant is referred to simultaneously in document No 8 both as health spokesperson for a national political party and as a United Kingdom MEP is not decisive as to whether there is a link with her mandate as a Member of Parliament. Next, it should be noted that document No 8 addresses the subject of the results of the Brexit referendum in the town of Warrington (United Kingdom). In that regard, it should be noted that, in the light of its purpose, the subject matter of that referendum cannot be classified as a matter of pure national policy, irrespective of the outcome. Consequently, document No 8 must be considered as having an inseparable link between local, national and European Union policy issues.
137    It follows from the foregoing that, despite the local and national policy aspects in that exchange of 4 July 2016, the Secretary-General of the Parliament could not, without making an error of assessment, deny the existence of any link between document No 8 and the applicant’s mandate. Accordingly, it must be held that that document has probative value and demonstrates an activity of the parliamentary assistant that is necessary and directly linked to the exercise of the applicant’s mandate.
138    Therefore, as the applicant maintains, document No 8, dated 4 July 2016, was wrongly rejected by the Secretary-General of the Parliament.
Emails concerning the relocation to Brussels (documents Nos 13 and 13a)
139    The applicant produces an exchange of emails between herself and the parliamentary assistant in which that assistant explains that he has become a Belgian resident. Evidence of his relocation was also produced. She considers that the contested decision does not explain how it can be found that such documents provide some evidence of residence in Brussels but do not constitute admissible evidence of work carried out from Brussels.
140    The Parliament contests that line of argument.
141    It should be noted that the Secretary-General of the Parliament found that documents Nos 13 and 13a, consisting of email exchanges of 24 and 25 August 2016 concerning the parliamentary assistant’s relocation to Brussels and documents such as electricity invoices, high-speed and television internet connection invoices for the period between March and June 2017, were capable of proving that the parliamentary assistant intended to reside in Brussels, but did not establish that he had provided the applicant with assistance in accordance with the implementing measures.
142    In that regard, it should be noted that documents Nos 13 and 13a establish that the parliamentary assistant moved to Brussels. However, it must be stated that they do not in any way demonstrate actual work carried out by the parliamentary assistant that is necessary and directly linked to the exercise of the applicant’s mandate. Consequently, they were rightly rejected by the Secretary-General of the Parliament.
The witness statement of the office manager (document No 70) and the applicant’s letter (document No 64)
143    The applicant contests the rejection of the witness statement of her office manager reporting on the mental health problems of the parliamentary assistant. Similarly, the applicant contests the failure to take into account a letter in which she mentions such problems. According to the applicant, that letter corroborates those problems, which are detailed by her office manager.
144    The Parliament contests that line of argument.
145    It should be noted that the Secretary-General of the Parliament took the view that the applicant’s letter of 26 November 2018, constituting document No 64, confirmed the health problems faced by the parliamentary assistant but did not attest to any work on his part. Moreover, as regards the statement of the applicant’s office manager of 10 May 2020, constituting document No 70, the Secretary-General of the Parliament stated that it was merely a ‘declaration of beliefs’. Furthermore, he referred to the statement of reasons provided in respect of document No 67 containing the same statement and took the view that that statement did not have sufficient probative value, since it was not supported by any evidence of the work of the parliamentary assistant.
146    In the present case, it must be held that document No 64 does not in any way prove that the parliamentary assistant actually worked, but merely refers to the latter’s state of health and to requests to the Parliament to terminate his contract. Similarly, it should be noted that document No 70 merely attests to the recruitment process of the parliamentary assistant, his administrative difficulties and health problems, but does not refer to whether he actually worked in accordance with the implementing measures. In those circumstances, it must be held that those documents were rightly rejected by the Secretary-General of the Parliament.
The evidence accepted by the Parliament as attesting to the work of the parliamentary assistant
147    The applicant challenges, in essence, the fact that the Parliament requested the recovery of each month of salary, even though it has been found that document No 10 constituted proof of the work of the parliamentary assistant. Similarly, in addition to that document, the Parliament allegedly considered a narrow selection of nine other admissible documents.
148    When questioned in that regard at the hearing, the Parliament pointed out that it considered it necessary to recover the whole salary of the parliamentary assistant because of the negligible nature of the 10 elements showing that the parliamentary assistant had worked in accordance with the implementing measures. The Parliament acknowledges that that practice may not be in line with the case-law, since the latter involves assessing each piece of evidence of the work of the parliamentary assistant concerned in order to determine whether it demonstrates the existence of work in accordance with the implementing measures and, if so, the exclusion of the relevant period from the recovery of salary. However, in the circumstances of the present case, it considers that its change of direction was necessary in view of the negligible nature of 8 of the 10 documents accepted as evidence and that it would have been complicated to accept that work had been carried out for a period as long as that at issue.
149    In the present case, it should be noted that the Secretary-General of the Parliament considered that documents Nos 10, 27, 46, 51, 53 to 55 and 58 to 60 constituted evidence of the work of the parliamentary assistant connected with the applicant’s mandate and as such had probative value. However, it pointed out that those documents were limited in number in view of the relatively long duration of the contract and referred to modest activities that did not require more than a few minutes. Consequently, it concluded that there was no overall impression of regular work by the parliamentary assistant for the period from 17 May 2016 to 30 November 2018 and proceeded to recovery of the whole amount of his salary.
150    It is apparent from the case-law that, when the Court partially annulled decisions of the Secretary-General of the Parliament, taking the view that certain documents had probative value and demonstrated work by the parliamentary assistant in connection with the Member’s mandate, the partial annulment concerned the periods corresponding to those documents (see, to that effect, judgments of 14 July 2021, Rochefort v Parliament, T‑170/20, not published, EU:T:2021:437, paragraphs 130 and 131, and of 14 July 2021, Rochefort v Parliament, T‑172/20, not published, EU:T:2021:439, paragraphs 117 and 118).
151    The exclusion from recovery of salary for the periods corresponding to the documents that have probative value appears all the more justified since, in the circumstances of the present case, the Secretary-General of the Parliament accepted the probative value of the documents in question without drawing any conclusions from them. That finding constitutes a difference from the case-law cited in paragraph 150 above, regarding a particular case in which the Secretary-General of the Parliament had found that the documents had no probative value and in which the Court overturned that finding and annulled the decision in respect of the period corresponding to those documents.
152    Furthermore, it should be pointed out that, although documents Nos 10, 27, 46, 51, 53 to 55 and 58 to 60 do not, admittedly, provide evidence of particularly intense and sustained activities linked to the exercise of the applicant’s mandate throughout the period in question, the extent of the tasks performed or their small number are not, as such, capable of calling into question the inherent probative value of those documents. The fact that the applicant could possibly have produced more does not call into question the relevance of those actually produced (see, by analogy, judgment of 29 November 2017, Montel v Parliament, T‑634/16, not published, EU:T:2017:848, paragraph 212).
153    Therefore, since the Secretary-General of the Parliament had accepted the probative value of documents Nos 10, 27, 46, 51, 53 to 55 and 58 to 60, he could not proceed to recovery of the whole salary by arguing that there was no overall impression of regular work during the period from May 2016 to November 2018.
154    Consequently, the Secretary-General of the Parliament could not accept the probative value of documents Nos 10, 27, 46, 51, 53 to 55 and 58 to 60 as evidence of the work of the parliamentary assistant linked to the applicant’s mandate without taking them into consideration when he ordered the recovery of the latter’s salary for the months of July and November 2016, June 2017 and March, April and November 2018.
Conclusion regarding the fifth plea and the outcome of the action
155    It follows from all of the foregoing that documents Nos 2 and 8 have probative value and that they should therefore be taken into consideration, as well as documents Nos 10, 27, 46, 51, 53 to 55 and 58 to 60, as has been found in paragraph 154 above. Consequently, the Secretary-General of the Parliament was wrong to consider that the parliamentary assistant’s salary should be recovered in respect of the months of May, July and November 2016, June 2017 and March, April and November 2018.
156    In that context, it should be noted that, in the light of the wording of Article 33 of the implementing measures, there was nothing to prevent the Secretary-General of the Parliament from finding, where appropriate, that, for part of the period concerned by the contested decision, the applicant had adduced evidence of work by the parliamentary assistant in accordance with those measures, since the finding of the regularity or irregularity of the expenses in question need not apply to the whole of that period (see, to that effect, judgment of 14 July 2021, Rochefort v Parliament, T‑170/20, not published, EU:T:2021:437, paragraph 132).
157    By contrast, during the periods between 17 May 2016 and 30 November 2018 other than those referred to in paragraph 155 above, it must be stated that the applicant did not produce any evidence that the parliamentary assistant had performed tasks in accordance with the implementing measures, in particular Articles 33 and 62 thereof.
158    Accordingly, the fifth plea must be upheld in so far as it concerns the months of May, July and November 2016, June 2017 and March, April and November 2018 and rejected as to the remainder.
159    It follows from all of the foregoing that the contested decision and, consequently, the corresponding debit note of 15 January 2021 must be annulled in so far as they relate to sums paid for May, July and November 2016, June 2017 and March, April and November 2018. The remainder of the action must be dismissed.
Costs
160    Under Article 134(3) of the Rules of Procedure, the parties are to bear their own costs, where each party succeeds on some and fails on other heads. In the present case, the applicant and the Parliament must bear their own costs, including those relating to the proceedings for interim measures.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1.      Annuls the decision of the Secretary-General of the European Parliament of 21 December 2020 concerning the recovery from SN of a sum of EUR 196 199.84 unduly paid by way of parliamentary assistance and the corresponding debit note of 15 January 2021, in so far as they concern sums paid for May, July and November 2016, June 2017 and March, April and November 2018;
2.      Dismisses the action as to the remainder;
3.      Orders SN and the Parliament to bear their own costs, including those relating to the proceedings for interim measures.
Spielmann
Mastroianni
Gâlea
Delivered in open court in Luxembourg on 3 May 2023.
[Signatures]
*      Language of the case: English.