62012FJ0129_EN
Parties
Grounds
Operative part
Parties
In Case F‑129/12,
ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,
CH, an accredited parliamentary assistant at the European Parliament, residing in Brussels (Belgium), represented by L. Levi, C. Bernard-Glanz and A. Tymen, lawyers,
applicant,
v
European Parliament,
represented by S. Alves and E. Taneva, acting as Agents,
defendant,
THE CIVIL SERVICE TRIBUNAL (First Chamber)
composed of H. Kreppel, President, E. Perillo and R. Barents (Rapporteur), Judges,
Registrar: J. Tomac, Administrator,
having regard to the written procedure and further to the hearing on 9 July 2013,
gives the following
Judgment
Grounds
1. By application lodged at the Registry of the Tribunal on 31 October 2012, CH seeks annulment of the decision of the European Parliament of 19 January 2012 to terminate her contract of employment as an accredited parliamentary assistant, annulment of the decision of 15 March 2012 rejecting her request for assistance and, so far as necessary, annulment of the decisions rejecting the complaints against those decisions, and an order that the Parliament pay her the sum of EUR 120 000 in damages.
Legal context
2. The present case arises in the legal context of Articles 12a and 24 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and of Articles 2(c), 127, 130 and 139(1)(d) of the Conditions of Employment of Other Servants (‘CEOS’).
3. Article 31(1) of the Charter of Fundamental Rights of the European Union, entitled ‘Fair and just working conditions’, provides:
‘Every worker has the right to working conditions which respect his or her health, safety and dignity.’
4. Article 41 of the Charter, entitled ‘Right to good administration’, provides:
‘1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.
2. This right includes:
(a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;
…’
5. Rule 9(2) of the Rules of Procedure of the European Parliament applicable at the material time states:
‘Members’ conduct shall be characterised by mutual respect, be based on the values and principles laid down in the basic texts on which the European Union is founded, respect the dignity of Parliament and not compromise the smooth conduct of parliamentary business or disturb the peace and quiet of any of Parliament’s premises. …’
6. Article 20(2) of the Implementing Measures for Title VII of the CEOS, adopted by decision of the Bureau of the European Parliament of 9 March 2009 and last amended by the decision of the Bureau of the Parliament of 13 December 2010 (‘the Implementing Measures’), provides:
‘Where an assistant or the Member or grouping of Members he/she assists wishes to terminate a contract prior to its expiry, the assistant or the Member responsible shall forward a written request to this effect to the relevant department of Parliament’s Secretariat, setting out the reason(s) for which early termination of the contract is being requested.
After examining the request, the authority empowered to conclude contracts of employment shall terminate the contract, pursuant to either Article 139(1)(d) of the [CEOS], in due compliance with the stipulated notice period, or Article 139(3) of [the CEOS], in accordance with the stipulated conditions.’
Background to the dispute
7. On 1 October 2004, the applicant was engaged as a parliamentary assistant by Mr B., Member of the European Parliament, under a contract that was due to expire at the end of the 2004/2009 parliamentary term. At the end of Mr B.’s term of office, in 2007, the applicant was engaged as a parliamentary assistant by another Member of the European Parliament, Ms P., from 1 December 2007 until the end of the parliamentary term in 2009. With effect from 1 August 2009, the applicant was engaged by the Parliament as an accredited parliamentary assistant within the meaning of Article 5a of the CEOS (‘APA’), to assist Ms P. until the end of the 2009/2014 parliamentary term. Her grade according to her contract was grade 14 in function group II.
8. With effect from 1 September 2010, that contract was replaced by a new contract, under which the applicant was reclassified at grade 11 in function group II.
9. From 27 September 2011, the applicant was granted sick leave, which was extended until 19 April 2012.
10. On 26 October 2011, the applicant’s general practitioner, Dr A.G., drew up a certificate confirming that she was suffering from anxiety and depression, recurrence of a state of ‘brooding’ and eating disorders, and making reference to the applicant’s assertion that she was being subjected to psychological harassment in her workplace. In a report dated 20 November 2011 sent to Dr A.G., Dr Y.G., a neuro-psychiatrist, noted the persistence of depression and anxiety. On 22 November 2011, Dr J. de M., the head of the unit for physical and psychological assessments at Brugmann University Hospital, Brussels (Belgium), found she was suffering from burn-out syndrome and stated that the applicant’s anxiety and depression originated from her ‘experience of psychological harassment at work’.
11. On 28 November 2011, the applicant informed the Advisory Committee on Harassment and its Prevention at the Workplace, set up by the Parliament (‘the Advisory Committee on Harassment’), of her situation and of Ms P.’s behaviour towards her. On 6 December 2011, the applicant consulted all the members of that committee regarding the steps to be taken in order to lodge a complaint of psychological harassment. By email of 12 December 2011, the applicant sent to all the members of the Advisory Committee on Harassment, and to the Secretary-General of the Parliament, the email she had sent to Ms P. the same day describing her state of health resulting from harassment by Ms P. By email of 21 December 2011, the applicant contacted the chair of that committee requesting a meeting.
12. On 22 December 2011, the applicant, through her lawyers, submitted a request for assistance under Article 24 of the Staff Regulations, in which she claimed that she was the victim of psychological harassment by Ms P. and sought the adoption of distancing measures and the initiation of an administrative inquiry.
13. On 6 January 2012, Ms P. sent to the staff recruitment and transfer unit attached to the Directorate for Human Resources Development of the Directorate-General for Personnel of the Parliament’s Secretariat, a written request for the termination of the applicant’s contract. On 18 January 2012, Ms P. confirmed that request.
14. By decision of 19 January 2012, the applicant’s contract was terminated with effect from 19 March 2012 on grounds of a breakdown in the relationship of trust (‘the dismissal decision’). The applicant was not required to work out her period of notice. In the letter accompanying that decision, the head of the relevant unit informed the applicant that a request had been received from Ms P. on 18 January 2012 to terminate the applicant’s contract. Ms P. considered, first, that the applicant did not have the necessary competencies to follow the work of the parliamentary committees of which she was a member and, secondly, that the applicant demonstrated behaviour that was on occasion unacceptable both towards herself and towards other MEPs and assistants. For those reasons, Ms P. could no longer trust the applicant to continue assisting her.
15. By letter of 23 January 2012, the applicant’s lawyers requested a copy of the request for dismissal drafted by Ms P. In response to that request, the competent unit of the Parliament provided them, by letter of 2 February 2012, with a non- exhaustive list of examples to illustrate the breakdown in the relationship of trust between the applicant and Ms P.
16. By letter of 7 February 2012, the applicant’s lawyers pointed out that the request for assistance which the applicant had submitted remained unanswered.
17. By letter of 4 March 2012 addressed to Dr A.G., Dr Y.G. noted that the applicant’s anxiety and depression had worsened due, in part, to the Parliament’s failure to recognise her ‘experience of psychological harassment’ and, in part, to the dismissal decision.
18. By letter of 15 March 2012, concerning the applicant’s request for assistance, the competent Director-General of the Parliament stated that he would not express a view as to whether or not Article 24 of the Staff Regulations was applicable, because in view of the termination of the applicant’s contract and of her extended absence on sick leave that request did not require an answer (‘the decision rejecting the request for assistance’).
19. On 30 March 2012, the applicant brought a complaint, pursuant to Article 90(2) of the Staff Regulations, against the dismissal decision. On 22 June 2012, the applicant brought a complaint under the same provision against the decision rejecting the request for assistance.
20. By decision of 20 July 2012, the Secretary-General of the Parliament partially upheld the complaint against the dismissal decision, deciding to defer the date on which the applicant’s contract ended to 20 June 2012 by reason of her sick leave, which was certified until 19 April 2012, in accordance with the last sentence of Article 139(1)(d) of the CEOS.
21. By decision of 8 October 2012, the Secretary-General of the Parliament rejected the complaint against the decision rejecting the request for assistance.
Forms of order sought
22. The applicant claims that the Tribunal should:
– annul the dismissal decision;
– annul the decision rejecting the request for assistance;
– so far as necessary, annul the decisions of the Secretary-General of the Parliament, of 20 July 2012 rejecting her complaint of 30 March 2012 against the dismissal decision and of 8 October 2012 rejecting her complaint of 22 June 2012 against the decision rejecting the request for assistance;
– order the Parliament to pay her the sum of EUR 120 000 by way of damages;
– order the Parliament to pay all the costs.
23. The Parliament claims that the Tribunal should:
– dismiss the action as unfounded;
– order the applicant to pay all the costs.
Law
The claim for annulment of the decisions rejecting the complaints
24. According to settled case-law, claims for annulment formally directed against the decision rejecting a complaint have the effect, where that decision lacks any independent content, of bringing before the Tribunal the act against which the complaint was submitted (see, to that effect, judgments of 17 January 1989 in Case 293/87 Vainker
v Parliament, paragraph 8, and of 9 July 2009 in Case F‑104/07 Hoppenbrouwers
v Commission, paragraph 31). In those circumstances, since the decision of 20 July 2012 rejecting the applicant’s complaint of 30 March 2012 against the dismissal decision and the decision of 8 October 2012 rejecting the complaint of 22 June 2012 against the decision rejecting the request for assistance have no independent content, the claim for annulment must be considered to be directed solely against the dismissal decision and the decision rejecting the request for assistance.
The claims for annulment of the dismissal decision and of the decision rejecting the request for assistance
Arguments of the parties
– Arguments of the applicant
25. According to the applicant, there is a direct link between the harassment at issue, the harasser and the dismissal decision, since that decision is based on the request from the perpetrator of the harassment, Ms P. The applicant observes that the acts constituting harassment were accurately described in detail and, as far as possible, documented in the request for assistance and the complaints, so that Ms P. could not claim to be unaware of that situation. As for Ms P.’s behaviour, the applicant maintains that she evinces constant dissatisfaction, which manifests itself in routine denigration of her achievements and abilities, constant hurtful and unhelpful criticism, in her presence or in front of others, and constant questioning of her work. According to the applicant, it is not only the quality of her work which is questioned but also her quality as a person and her dignity.
26. The applicant also gives specific examples of Ms P.’s behaviour which she regards as abusive towards her, in particular of denigration in the presence of others. The applicant claims that, according to the judgment of 24 February 2010 in Case F‑2/09 Menghi
v ENISA, the dismissal decision is vitiated by a misuse of powers and should be annulled. That decision was not taken in order to enable Ms P. to part company with an assistant with whom a relationship of trust no longer existed, but in order to ‘rid herself’ of an assistant whose request for assistance could have been detrimental to her. The applicant adds that it was incumbent on the authority empowered to conclude contracts of employment (‘the AECE’), to whom a dismissal request had been made, to assess the validity of the grounds put forward by Ms P. The AECE must not simply approve any request for dismissal made by a Member against his or her assistant, a fortiori where the latter has submitted a request for assistance. So far as the decision rejecting the complaint against the dismissal decision is concerned, the applicant observes that the Parliament not only refused to annul a decision that was manifestly vitiated by a misuse of powers it also failed to comply with its obligation to state reasons, by disregarding properly submitted evidence and refraining from giving its view on the matter of misuse of powers. The applicant also observes that upholding the dismissal decision subsequently enabled the Parliament to justify the decision rejecting the request for assistance, since dismissal would have made it devoid of purpose. Lastly, the dismissal decision should also be annulled in so far as it infringes Article 12a of the Staff Regulations and the security which that provision affords to staff who report incidents of harassment.
27. So far as the manifest error of assessment is concerned, the applicant challenges the grounds given for the dismissal decision and the Parliament’s refusal to acknowledge that error. The applicant notes that, after nearly two years of working together, Ms P. made the decision to keep her in her service under the terms of her initial contract. As for the argument, relied on in support of the dismissal decision, that the applicant’s behaviour towards her colleagues was unacceptable, she observes that no probative evidence was adduced with regard to that allegation.
28. Concerning the decision rejecting the request for assistance, the applicant cites the judgment of 8 February 2011 in Case F‑95/09 Skareby
v Commission, and points out that a dismissal decision does not, ipso facto, render a request for assistance devoid of purpose. Even though she accepts that the distancing measures she requested were no longer of any interest following the dismissal, she maintains that Article 24 of the Staff Regulations applies to APAs and that therefore she could not be refused assistance or, accordingly, the initiation of an inquiry.
– Arguments of the Parliament
29. By way of introduction, the Parliament makes some observations on the status of APAs. First of all, the Parliament contends that the case-law concerning termination of temporary contracts under Article 2(c) of the CEOS may be applied by analogy to the dismissal of APAs, given that mutual trust is an essential factor common to both types of contract. In that regard, the Parliament refers to the judgments of 17 October 2006 in Case T‑406/04 Bonnet
v Court of Justice, and of 7 July 2010 in Joined Cases F‑116/07, F‑13/08 and F‑31/08 Tomas
v Parliament . As regards the procedure for terminating a contract, based on Article 139(1)(d) of the CEOS and on Article 20(2) of the Implementing Measures, the European Parliament explains that, where the competent AECE receives from a Member a request to terminate an APA’s contract before its expiry date owing to a breakdown in the relationship of trust, the AECE can only take note of that breakdown and respond to the request for dismissal. Indeed, the AECE has no discretion as regards taking action on that request. With regard to the AECE’s examination of that request, provided for in the second subparagraph of Article 20(2) of the Implementing Measures, the Parliament states that the examination is merely an administrative process in preparation for the dismissal and implementation of the procedure in compliance with the period of notice laid down in Article 139(1)(d) of the CEOS. Again according to the Parliament, the AECE has no discretion as regards taking action on a request for the dismissal of an APA based on a breakdown in the relationship of trust. The effects of the AECE’s powers were therefore limited to terminating the applicant’s contract, acting at Ms P.’s request, on the ground that the trust which is indispensable for continuation of a professional relationship between her and the applicant had been lost.
30. So far as misuse of powers and psychological harassment are concerned, the Parliament observes that the applicant’s allegations and accusations are not supported by any probative documents or evidence to establish their veracity, and that her assertion that the dismissal decision is vitiated by misuse of powers because it was taken for the purpose of psychologically harassing her must be rejected as unfounded. The Parliament adds that the fact that the medical reports annexed to the application state that the applicant’s anxiety and depression originate from her ‘experience of psychological harassment at work’ does not demonstrate the existence of such harassment, since those reports are based on the applicant’s subjective description of her working conditions. The Parliament also observes that Ms P. contacted the competent unit for the first time between 28 November and 5 December 2011 with regard to the procedure to be followed in order to dismiss the applicant, which was well before the request for assistance was submitted. It follows, the Parliament continues, that the AECE did not adopt the dismissal decision in order to ‘rid itself’ of the applicant following the submission of her request for assistance. Lastly, the Parliament disputes the alleged failure to state reasons for the decision rejecting the complaint against the dismissal decision.
31. As regards the manifest error of assessment, the Parliament maintains that the applicant, who was responsible inter alia for assessing whether or not it was appropriate to submit amendments to the dossier concerning the European Agency for Network and Information Security (ENISA), did not establish that the amendments proposed were not ‘unacceptable’. Consequently, the applicant did not provide evidence that the AECE committed such an error. Also, in the dismissal decision the Parliament did not accuse the applicant of failing to follow properly the work of the Economic and Monetary Affairs Committee. In that regard, the Parliament states that the applicant, who was in function group II, was required mainly to carry out drafting and advisory duties. However, in the letter of 2 February 2012, the AECE stated that although the applicant ‘[was] certainly capable of carrying out secretarial tasks, she [did] not demonstrate the political judgment … needed in order to be able to … assist [Ms P.] effectively in following [the work] of the parliamentary committees’.
32. As regards the decision rejecting the request for assistance, the Parliament observes first that Articles 12a and 24 of the Staff Regulations do not apply to Members. Also, the Parliament contends that rejection of the request to initiate an administrative inquiry is based on two grounds: first, the fact that that request became devoid of purpose after the applicant’s dismissal and, secondly, the fact that Article 24 of the Staff Regulations was not applicable to Members. Hence, the Parliament considers that the AECE was unable to take action on the request for assistance. Therefore, the Parliament continues, the plea alleging infringement of Article 24 of the Staff Regulations should be rejected. The Parliament adds that reassignment of the applicant is in any event excluded since, under Article 5a of the CEOS, it is Members themselves who ask the administration to recruit the assistants of their choice.
Findings of the Tribunal
– Termination of the applicant’s contract
33. Under Article 41(2)(a) of the Charter, every person has the right to be heard before any individual measure which would affect him or her adversely is taken.
34. It is not disputed that, in the present case, the dismissal decision constitutes an individual measure which affects the applicant adversely.
35. It appears from the file that the AECE did not hear the applicant before terminating her contract. The Parliament expressly confirmed this in response to questioning on that point at the hearing.
36. According to the Parliament, it is apparent from the case-law concerning termination of temporary contracts under Article 2(c) of the CEOS, which in its view may be applied by analogy to the dismissal of APAs, that the AECE is not required to hear an APA before adopting the decision to terminate his or her contract.
37. In so far as the Parliament seeks to rely on the case-law of the Tribunal and of the General Court, according to which, where a dismissal decision is taken on grounds of loss of trust, the person concerned has no procedural safeguards, such as the right to be heard during the administrative procedure, suffice it to note that, since the entry into force of the Lisbon Treaty on 1 December 2009, it is necessary to take into account the provisions of the Charter, which have the same legal value as the Treaties.
38. However, in order for a breach of the right to be heard to lead, in the present case, to annulment of the dismissal decision, it is also necessary to examine whether, had it not been for that irregularity, the outcome of the procedure might have been different. This question will be dealt with by the Tribunal in paragraph 48 below.
39. Next, it is necessary to examine the Parliament’s argument that, where the competent AECE receives from a Member a request to end an APA’s contract before its expiry date owing to a breakdown in the relationship of trust, it can only take note of that breakdown and comply with the request for dismissal, since it has no discretion as regards taking action on that request.
40. In that regard, it must be observed that, according to Article 20(2) of the Implementing Measures, a Member seeking termination of the contract of an APA is required to ‘[set] out the reason(s)’ therefor and, according to the second subparagraph, the AECE is to terminate the contract ‘[a]fter examining the request’. Hence, it is clear from that provision that the AECE is required at least to examine the legality of the request for termination. If that were not so, the obligation on the Member to ‘[set] out the reason(s)’ and the obligation on the AECE to examine the request would have no purpose.
41. Therefore, without its being necessary to rule on the extent of the examination of the request by the AECE under Article 20(2) of the Implementing Measures, it is sufficient to observe that the wording of that article requires the AECE to check whether or not any plea that may have been put forward in that regard, by its nature, infringes fundamental rights (see, to that effect, Bonnet
v Court of Justice, paragraph 52) and the provisions governing employment relationships between the European Union and its staff, interpreted in the light of those rights. In that regard, it should be noted that the Parliament stated at the hearing that, as part of the examination provided for in that article, it did in fact examine whether the request for termination of the contract complied with fundamental rights.
42. It follows that the AECE was actually required to examine whether there was a connection between Ms P.’s request of 6 January 2012 to terminate the applicant’s contract and the fact that the applicant had, on 22 December 2011, submitted a request for assistance, under Article 24 of the Staff Regulations, concerning her alleged harassment by Ms P., and for the opening of an administrative inquiry.
43. In that regard, the Parliament maintains that there was no possibility of doing so because Ms P. contacted the competent services between 28 November and 5 December 2011, that is to say, well before the applicant submitted her request for assistance in order to obtain certain information concerning the applicant’s contract. However, the fact remains that the Parliament did not provide any evidence at all on this point.
44. Next, it is common ground that, on 6 January 2012, the date on which Ms P. requested the termination of the applicant’s contract, the AECE had access to the medical certificates provided by the applicant, which show clearly that, according to the doctors she consulted, her disorders, which had necessitated her being on sick leave since 27 September 2011, had been caused by harassment experienced at her workplace. It is also common ground that on 12 December 2011 the applicant sent an email to Ms P. stating she felt she was under pressure ‘as a result of the daily harassment [she was] subjected to by [the latter]’, and that the same day the applicant sent a copy of that email to the Secretary-General of the Parliament and to the Advisory Committee on Harassment. Lastly, it should be noted that on 19 December 2011 Ms P. sent an email to the competent service, referring to the applicant’s email of 12 December 2011, which in Ms P.’s opinion was ‘most insulting’. In the same email, Ms P. also asked for information on the procedure for terminating the contract of an APA.
45. The Tribunal considers that, taken as a whole, the facts set out above should have led the AECE, in the context of its examination under Article 20(2) of the Implementing Measures, to examine whether o r not the request for termination of the applicant’s contract might have a connection with the request for assistance which the applicant submitted on 22 December 2011. While recognising the difficult and delicate nature of that examination, the AECE could thereby have complied in full in this case with Article 31(1) of the Charter, which provides that every worker has the right to working conditions which respect his or her health, safety and dignity.
46. However, according to the Parliament’s statements at the hearing, after receiving on 6 January 2012 Ms P.’s request to terminate the applicant’s contract, the AECE did not examine that request and waited for it to be confirmed on 18 January 2012. The Tribunal also considers that the AECE’s failure to conduct an examination of the request for termination, as provided for in Article 20(2) of the Implementing Measures, is evidenced by the fact that the applicant’s contract was terminated the day after the request was confirmed, on 19 January 2012, despite the AECE being fully aware of the fact that the applicant was on sick leave.
47. It is clear therefore that, following Ms P.’s request, the AECE did not carry out even a minimum check to ascertain whether, in the present case, the provisions of the last sentence of Article 139(1)(d) of the CEOS, according to which the two-month period of notice to which the applicant was entitled should have been suspended until 19 April 2012, had been complied with. The Tribunal also finds that it is only in the response of 20 July 2012 to the complaint of 30 March 2012 that the AECE corrected that error.
48. Lastly, it is also necessary to examine whether, had the applicant been heard before the dismissal decision was adopted, the outcome might have been different. In that regard, the Tribunal considers that, if the applicant had been heard, the AECE would have been in a position to obtain more information in order to examine whether or not the request for termination of the applicant’s contract might have a connection with her request for assistance and thus, as observed in paragraph 45 above, to ensure full compliance with Article 31(1) of the Charter.
49. It follows that, in adopting the dismissal decision, the AECE failed to comply, in the circumstances of the present case, with its obligations under Article 31(1) and Article 41(2)(a) of the Charter, and under Article 20(2) of the Implementing Measures. That decision must therefore be annulled.
– Rejection of the request for assistance
50. It is necessary first of all to examine the Parliament’s argument that Article 12a of the Staff Regulations does not apply to Members of that institution and that it was therefore unable to comply with the request for assistance submitted by the applicant.
51. This argument must be rejected. Although it is true that Article 12a(1) of the Staff Regulations applies only to officials, it is also true that Article 12a(2) refers to an ‘official who has been the victim of psychological harassment’, without any precise detail as to the source of that harassment. It follows that Article 12a(1) does not, as such, preclude the Parliament from taking action where the presumed perpetrator of the harassment is a Member of that institution.
52. Next, it is necessary to examine the Parliament’s argument that the request for assistance submitted on 22 December 2011 became devoid of purpose following termination of the applicant’s contract.
53. The Tribunal considers that that argument is hard to comprehend. If, before the date on which the contract was terminated, the applicant had actually been subjected to harassment by Ms P., that would be an established fact and termination of the contract would not in that case have eradicated the harassment. If the Parliament means, by that argument, to contend that the duty to provide assistance ceases to exist at the point when the official concerned ceases to perform his or her duties, such an interpretation is manifestly incompatible with the purpose and scope of that duty. In the light of Article 31(1) of the Charter, which provides that ‘[e]very worker has the right to working conditions which respect his or her health, safety and dignity’, it should be noted that the rationale underlying the duty to provide assistance is not only the interests of the service but also, as is clear from the wording of that article, the interests of the person concerned. That is especially so where the request for assistance comes from an official who claims to be the victim of psychological harassment, and its consequences are likely to last after she has ceased to perform her duties. Moreover, at the hearing the Parliament claimed that the argument that the request for assistance became devoid of purpose merely as a result of termination of the applicant’s contract had not been properly formulated.
54. The Parliament also contends that, in the present case, Article 24 of the Staff Regulations is not applicable since the alleged harasser is a Member.
55. In that regard, suffice it to say that that argument is based on a manifestly incorrect reading of Article 24 of the Staff Regulations. According to the wording of that article, its purpose is to protect officials against the acts of third parties. In the present case, the alleged harasser is a Member, who, since she is not a member of the Parliament’s staff, is a third party in relation to the alleged victim of her conduct.
56. The Parliament also contends that Article 24 of the Staff Regulations does not apply in the case of Ms P., since it has no means of coercing its Members.
57. That argument also demonstrates a manifestly incorrect reading of that article. As regards protection of an official against the acts of third parties, because the institutions, in principle, do not have any means of coercing third parties, the Staff Regulations lay down a duty to provide assistance, enabling the administration to assist an official in his search for protection by the means provided for under the law of the Member State where the offence concerned took place.
58. Lastly, without there being a need to comment on the Parliament’s argument at the hearing that because Ms P. is a Member she cannot be regarded as a third party in relation to the applicant, it should be noted that, according to Rule 9(2) of the Rules of Procedure of the Parliament applicable at the material time, ‘Members’ conduct [must] be characterised by mutual respect, be based on the values and principles laid down in the basic texts on which the European Union is founded [and] respect the dignity of Parliament …’. Consequently, there was nothing to prevent the Parliament, on the basis of that provision, from inviting Ms P. to collaborate in an administrative inquiry, in order to determine whether the alleged harassment on her part, of which the applicant claims to have been the victim, did take place.
59. For the sake of completeness, the Tribunal notes that the effect of the Parliament’s interpretation of Articles 12a and 24 of the Staff Regulations in relation to the rules governing the contracts of APA, whereby the AECE can neither initiate an administrative inquiry in order to examine a case of psychological harassment where the alleged perpetrator is a Member, nor assist an APA in order to protect him or her against the actions of such a Member, would be to deprive those articles of effectiveness and, in the present case, preclude any form of review, however limited, of the lawfulness of dismissal decisions and of decisions rejecting requests for assistance. The Tribunal considers that such an interpretation manifestly conflicts with Article 31(1) of the Charter, which expressly provides that every worker has the right to working conditions which respect his or her health, safety and dignity.
60. The decision rejecting the request for assistance must therefore be annulled.
61. Since the dismissal decision and the decision rejecting the request for assistance are annulled, there is no need to examine the other pleas in law.
The claim for damages
Arguments of the parties
62. The applicant claims that the Parliament should be ordered to pay, ex æquo et bono, a total amount of EUR 120 000 in compensation for the medical, financial and non-material damage she suffered as a result of the dismissal decision and the decision rejecting the request for assistance.
63. The Parliament contends that this claim should be rejected.
Findings of the Tribunal
64. As a preliminary, it must be observed that, taking into account her pleadings and her arguments, the applicant, in seeking compensation for medical, financial and non-material damage, must be regarded as seeking financial compensation for the non-material damage resulting from the detriment to her health, dignity and professional reputation caused by the decisions at issue. In that regard, it should be recalled that, according to settled case-law, the annulment of an unlawful act of the administration may constitute, in itself, appropriate and, in principle, sufficient compensation for any non-material harm which that measure may have caused (judgments of 9 July 1987 in Joined Cases 44/85, 77/85, 294/85 and 295/85 Hochbaum and Rawes
v Commission, paragraph 22; of 9 November 2004 in Case T‑116/03 Montalto
v Council, paragraph 127; of 8 May 2008 in Case F‑6/07 Suvikas
v Council, paragraph 151), unless the applicant shows that he has sustained non-material harm that can be separated from the illegality on which the annulment is based and cannot be compensated in full by that annulment (see, to that effect, judgments of 7 February 1990 in Case C‑343/87 Culin
v Commission, paragraphs 27 and 28, and of 6 June 2006 in Case T‑10/02 Girardot
v Commission, para. 131).
65. The Tribunal notes that it is common ground that the feeling of injustice and the anxiety caused by the fact that a person has to conduct a pre-litigation procedure and then a litigation procedure in order to have his rights recognised constitutes harm which may be inferred from the fact alone that the administration committed unlawful acts. Recognising that such harm may be compensated where it is not possible to provide compensation through the satisfaction resulting from the annulment of contested decisions (see, to that effect, judgment of 11 July 2013 in Case F‑9/12 CC v Parliament, paragraph 128), the Tribunal, taking into account the questionable circumstances in which the dismissal decision and the decision rejecting the request for assistance were taken, decides that a fair assessment will be made, in the particular circumstances of the present case, of the non-material damage suffered by the applicant by setting, ex æquo et bono, the compensation for that head of damage at the sum of EUR 50 000.
66. It follows from all the foregoing that the Parliament must be ordered to pay the applicant the sum of EUR 50 000.
Costs
67. Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that he is not to be ordered to pay any.
68. It is apparent from the reasons set out in the present judgment that the Parliament has been unsuccessful. In addition, in her pleadings, the applicant has expressly asked for the Parliament to be ordered to pay the costs. As the circumstances of the present case do not justify the application of the provisions of Article 87(2) of the Rules of Procedure the Parliament must bear its own costs and pay the costs incurred by the applicant.
Operative part
On those grounds,
THE CIVIL SERVICE TRIBUNAL (First Chamber)
hereby:
1. Annuls the decision of the European Parliament of 19 January 2012 terminating CH’s contract of employment as an accredited parliamentary assistant;
2. Annuls the decision of the European Parliament of 15 March 2012 rejecting CH’s request for assistance of 22 December 2011;
3. Orders the European Parliament to pay CH the sum of EUR 50 000;
4. Orders the European Parliament to bear its own costs and to pay the costs incurred by CH.