62018TJ0083
JUDGMENT OF THE GENERAL COURT (First Chamber)
13 December 2018 (
*1
)
(Civil service – Accredited parliamentary assistants – Article 24 of the Staff Regulations – Request for assistance – Article 12a of the Staff Regulations – Psychological harassment – Advisory Committee dealing with harassment complaints between accredited parliamentary assistants and Members of the European Parliament and its prevention at the workplace – Decision rejecting the request for assistance – Right to be heard – Audi alteram partem rule – Refusal to disclose the opinion of the Advisory Committee and the minutes of the hearing of witnesses – Refusal by the defendant institution to comply with a measure of inquiry of the General Court)
In Case T‑83/18,
CH, former accredited parliamentary assistant at the European Parliament, represented by C. Bernard-Glanz and A. Tymen, lawyers,
applicant,
v
European Parliament, represented by D. Boytha and E. Taneva, acting as Agents,
defendant,
APPLICATION based on Article 270 TFEU seeking, first, annulment of the decision of the Parliament of 20 March 2017 by which the authority empowered to conclude contracts of employment of that institution rejected the request for assistance made by the applicant on 22 December 2011 and, second, compensation for the loss she has allegedly suffered,
THE GENERAL COURT (First Chamber),
composed of I. Pelikánová, President, P. Nihoul and J. Svenningsen (Rapporteur), Judges,
Registrar: M. Marescaux, Administrator,
having regard to the written part of the procedure and further to the hearing on 25 October 2018,
gives the following
Judgment
Background to the dispute
The facts that gave rise to the judgment of 12 December 2013, CH v Parliament (F‑129/12)
1
On 1 October 2004, the applicant, CH, was recruited under Article 5 of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) by the European Parliament authority empowered to conclude contracts of employment (‘the AECE’) as an accredited parliamentary assistant (‘APA’) to assist Y, a Member of the European Parliament, under a contract that was due to expire at the end of the 2004/2009 parliamentary term.
2
When Y’s term of office came to an end, the applicant was engaged by the Parliament, from 1 December 2007 until the end of the parliamentary term, as an APA to assist X, a new Member of the European Parliament who succeeded Y for the remainder of the term of office.
3
With effect from 1 August 2009, the applicant was employed by the Parliament as an APA to assist X during the 2009/2014 parliamentary term. She was appointed at grade 14 in function group II. However, under a new contract, concluded on 1 September 2010, which replaced the previous contract, the applicant was engaged to carry out the same duties but this time at grade 11 in function group II (‘the contract of employment’ or ‘the APA contract’).
4
From 27 September 2011, the applicant was granted sick leave, which was extended until 19 April 2012.
5
On 28 November 2011, the applicant informed the Advisory Committee on harassment and its prevention at the workplace, set up by the Decision of the Parliament of 21 February 2006 adopting internal rules for the committee on harassment (Article 12a of the Staff Regulations [of EU officials]), (‘the General Advisory Committee’) of her difficulties at work as a result, she alleged, of X’s behaviour towards her.
6
By email of 6 December 2011, the applicant consulted the members of the General Advisory Committee regarding the steps to be taken in order to ‘lodge a complaint’. Then, by email of 12 December 2011 and in order to illustrate the harassment she considered she was suffering as a result of the actions of the Member of the European Parliament she assisted, the applicant sent to each of the members of that committee and to the Secretary-General of the Parliament the email she had sent to X the same day, in which she described her state of health to that Member. Lastly, the applicant contacted the chair of the General Advisory Committee, by email of 21 December 2011, requesting a meeting.
7
On 22 December 2011, under Article 24 of the Staff Regulations of EU officials (‘the Staff Regulations’), the applicant submitted a request for assistance to the Secretary-General of the European Parliament (‘the request for assistance’), in which she claimed that she was the victim of psychological harassment by X and sought the adoption of distancing measures and the initiation of an administrative inquiry.
8
On 6 January 2012, X sent a written request for termination of the applicant’s APA contract to the Staff Recruitment and Transfer Unit of the Directorate for Human Resources Development of the Directorate-General (DG) for Personnel of the European Parliament (‘the request for termination’). On 18 January 2012, X confirmed the request for termination.
9
By decision of the AECE of 19 January 2012, the applicant’s APA contract was terminated with effect from 19 March 2012 on the alleged grounds of a breakdown in the relationship of trust (‘the dismissal decision’). The applicant was not required to work out her two-month period of notice from 19 January to 19 March 2012. In support of the ground alleging breakdown in the relationship of trust, the AECE maintained that X had informed it that the applicant did not have the necessary competencies to follow the work of some of the parliamentary committees on which she sat and that X had also complained of unacceptable behaviour on the part of the applicant both towards herself and towards other Members of Parliament and their APAs.
10
By letter of 20 March 2012, the request for assistance was rejected by the Director-General of the Parliament’s DG for Personnel, acting as the AECE, on the grounds that, irrespective of whether an APA was entitled to receive assistance under Article 24 of the Staff Regulations, the applicant’s request for assistance, concerning the adoption of distancing measures and the conduct of an administrative inquiry, had become redundant since, in the light of the dismissal decision which had been taken in the meantime, the applicant was no longer employed at the Parliament (‘the first decision rejecting the request for assistance’).
11
On 30 March 2012, the applicant submitted a complaint under Article 90(2) of the Staff Regulations against the dismissal decision, to the Secretary-General of the Parliament. On 22 June 2012, the applicant also brought a complaint under the same article of the Staff Regulations against the first decision rejecting the request for assistance.
12
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 APA contract ended to 20 June 2012 by reason of her sick leave, which was certified until 19 April 2012. However, he upheld the validity of the dismissal decision, citing the impossibility, as recognised in case-law, in particular in paragraph 149 of the judgment of 7 July 2010, Tomas v Parliament (F‑116/07, F‑13/08 and F‑31/08, EU:F:2010:77), of reviewing the existence or loss of a relationship of trust, an impossibility which extends in part to review of the grounds advanced to justify the non-existence or loss of that relationship of trust.
13
In any event, the Secretary-General of the Parliament took the view that the applicant had not provided evidence of manifest errors vitiating the assessment of the facts alleged to justify a breakdown in the relationship of trust, whereas the Parliament had been aware of several professional shortcomings on the part of the applicant, inter alia in connection with evaluating the expediency of drafting legislative amendments to be submitted in a dossier, her discourtesy towards a Member of the European Parliament from a Member State other than X’s own, as well as the applicant’s insolent behaviour towards the new APA recruited to assist X and impoliteness towards that APA in the presence of the chief executive officer of a company. A teacher accompanying a group of students on a visit to the institution also complained of the applicant’s impoliteness.
14
Lastly, according to the Secretary-General of the European Parliament, the fact that the applicant had made a request for assistance was not such as to preclude the dismissal decision, which the manifest deterioration in relations between X and the applicant rendered inevitable.
15
Furthermore, by decision of 8 October 2012, the Secretary-General of the Parliament, acting as the AECE, rejected the complaint made against the decision rejecting the request for assistance, stating that, while he ‘had informed [the applicant], in support of the AECE’s dismissal decision, of [her] unacceptable behaviour … and of specific, verifiable acts that had taken place in the presence of witnesses, [the applicant] [was making] assertions with no evidence to support them’. The applicant was also told that, generally, the measures she asked for were ‘in any case not compatible with the specific nature of the close relationship based on trust which [was] required between a Member of the European Parliament and her [APA]’, that, in particular, a distancing measure would make no sense since it would have the effect of preventing any working relationship between the Member and her APA and that, at a practical level, the Parliament could not reassign the applicant to another Member of the institution since only that Member can ask the AECE to recruit an APA of his or her choosing. The Secretary-General of the European Parliament also stated, with regard to the request to open an administrative inquiry, that the judgment of 8 February 2011 in Skareby v Commission (F‑95/09, EU:F:2011:9), on which the applicant relied in that regard, could not be transposed to the present case, since Members of the Parliament were not subject to the Staff Regulations, including Article 12a thereof, and could not be required to undergo a disciplinary measure or be compelled by the AECE to take part in an administrative inquiry, even where such participation was essential.
16
By application received at the Registry of the European Union Civil Service Tribunal on 31 October 2012 and registered as Case F‑129/12, the applicant sought, in essence, annulment of the dismissal decision and of the first decision rejecting the request for assistance, and also an order that the Parliament should pay her the sum of EUR 120000 in damages.
17
By its judgment of 12 December 2013, CH v Parliament (F‑129/12, EU:F:2013:203), the Civil Service Tribunal annulled the dismissal decision on the grounds, in particular, that the applicant had not been heard by the AECE before the decision was adopted, and also the first decision rejecting the request for assistance, holding, in essence, that, contrary to the European Parliament’s contentions, APAs were entitled to rely on Article 24 of the Staff Regulations to request assistance from the AECE in response to behaviour by a Member of the European Parliament that allegedly amounted to psychological harassment within the meaning of Article 12a of the Staff Regulations. Furthermore, ‘taking into account the questionable circumstances in which the dismissal decision and the [first] decision rejecting the request for assistance were taken’, the Civil Service Tribunal ordered the Parliament to pay the applicant the sum of EUR 50000 in compensation for the non-material harm suffered.
The measures adopted by the Parliament to comply with the judgments of 12 December 2013, CH v Parliament (F‑129/12), and of 6 October 2015, CH v Parliament (F‑132/14), and the contested decision
18
By letter of 15 January 2014, the applicant requested the Parliament to take a number of measures to comply with the judgment of 12 December 2013, CH v Parliament (F‑129/12, EU:F:2013:203), in accordance with Article 266 TFEU.
19
By letter of 3 March 2014, the Parliament gave an official response to the applicant’s various requests for measures to comply with the judgment of 12 December 2013, CH v Parliament (F‑129/12, EU:F:2013:203).
20
With regard to the applicant’s request for reinstatement in a permanent post within the Parliament, that institution stated that such a measure would manifestly exceed what was necessary in order to comply with the judgment of 12 December 2013, CH v Parliament (F‑129/12, EU:F:2013:203), inter alia because, according to recital 7 of Council Regulation (EC) No 160/2009 of 23 February 2009 amending the CEOS (OJ 2009 L 55, p. 1), ‘no provision of this Regulation may be construed as giving [APAs] privileged or direct access to posts of officials or other categories of servants of the European [Union]’.
21
In those circumstances, in view of the personal nature of the employment relationship between Members of the European Parliament and their APAs, the Parliament informed the applicant that it was not possible for her to be effectively reinstated in her post. The Parliament therefore explained that ‘the only possibility [was] to reinstate [the applicant] in the post which she occupied before the dismissal decision [held to be unlawful] without requiring her to work out the corresponding period of notice, up until the end of her [contract of employment] … on 1 July 2014[; t]hat dispensation from service appear[ed] also to comply with the duty to have due regard to the welfare of officials’. In that regard, the Parliament undertook to pay the applicant the remuneration due to her from 21 June 2012, the date on which the dismissal decision took effect, until the end of her contract of employment, that is to say, 1 July 2014, minus the remuneration and unemployment benefit she received from other sources during that period.
22
Furthermore, the Parliament confirmed that the request for termination, which had been made at the time, did not appear on the applicant’s personal file and that the dismissal decision, held to be unlawful by the Civil Service Tribunal, would be removed from that file. As regards the request to transfer to the EU pension scheme pension rights acquired previously under a national scheme, the Parliament noted that the applicant, who had worked for barely 5 years as an APA, did not fulfil the condition of having completed at least 10 years’ service within the EU in order to be able to claim a retirement pension payable from the EU budget.
23
Lastly, as regards the request to open an administrative inquiry, which had been made in the request for assistance, the Parliament stated that ‘on that point, … if [the applicant] decided to institute proceedings under national law against [X] the Parliament would review the situation in the light of the case-law referred to [in paragraph 57] of the judgment [of 12 December 2013, CH v Parliament (F‑129/12, EU:F:2013:203)]’.
24
On 16 April 2014, the applicant, under Article 90(2) of the Staff Regulations, lodged a complaint against the decision of 3 March 2014 and against that of 2 April 2014 in which the AECE had adopted a position on further requests.
25
By letter of 6 June 2014, in the context of the measures to comply with the judgment of 12 December 2013, CH v Parliament (F‑129/12, EU:F:2013:203), the Parliament’s legal service informed the applicant that there were internal APA rules established by decision of the Bureau of the Parliament of 14 April 2014 adopting internal rules (‘the APA Internal Rules concerning harassment’) with a view to establishing an advisory committee on harassment and its prevention at the workplace to handle complaints between APAs and Members of the Parliament (‘the APA Special Advisory Committee’). It was therefore explained to her that the APA Special Advisory Committee was now ‘the body dealing with any harassment complaint by [the applicant]’ and she was ‘advised … to approach the [APA Special Advisory] Committee through its secretariat’.
26
By letter of 20 June 2014, the applicant replied that, following the annulment of the first decision rejecting the request for assistance, the Parliament was still dealing with that request, which originated in the conduct of X. Consequently, the applicant wondered ‘why the Parliament … [had] not thought fit, specifically in connection with the measures to comply with the judgment [of 12 December 2013, CH v Parliament (F‑129/12, EU:F:2013:203)], to refer the matter itself directly to the [APA Special Advisory Committee], since the latter had been validly constituted – a fact which [had] still not been confirmed to her’.
27
By letter of 4 August 2014, the Secretary-General of the Parliament, acting as the AECE, rejected the complaint of 16 April 2014.
28
By application lodged at the Registry of the Civil Service Tribunal on 17 November 2014, registered under number F‑132/14, the applicant brought an action seeking:
–
annulment of the European Parliament’s decision of 3 March 2014, in so far as that institution had refused, by way of measures necessary to comply with the judgment of 12 December 2013, CH v Parliament (F‑129/12, EU:F:2013:203), within the meaning of Article 266 TFEU, to initiate an administrative inquiry with a view to establishing the reality of the allegations against a Member of the European Parliament set out in her request for assistance made on 22 December 2011;
–
annulment of the Parliament’s decision of 2 April 2014, in so far as in that decision the Parliament had refused to pay her the sum of EUR 5686 corresponding to the difference in salary to which she considered she was entitled under measures necessary to comply with the judgment of 12 December 2013, CH v Parliament (F‑129/12, EU:F:2013:203), within the meaning of Article 266 TFEU;
–
annulment of the Parliament’s decision of 4 August 2014, by which the Parliament had rejected the applicant’s complaint against the two abovementioned decisions of 3 March and 2 April 2014;
–
an order that the Parliament should pay her the sums of EUR 144000 and EUR 60000 respectively in compensation for the applicant’s material and non-material harm.
29
On 26 November 2014, the APA Special Advisory Committee held its inaugural meeting. Paragraph 2 of the minutes of that meeting states that, ‘if necessary, [the] Jurisconsult [of the Parliament] may be invited to take part in meetings of the committee … to advise the latter on legal matters’. Paragraph 4 of those minutes states that ‘the Jurisconsult inform[ed] members [of the APA Special Advisory Committee] of the Parliament’s position in … two cases of alleged harassment[, including the case giving rise to the judgment of 12 December 2013, CH v Parliament (F‑129/12, EU:F:2013:203)]’.
30
By letter of 17 December 2014, the chair of the APA Special Advisory Committee invited the applicant to attend a meeting with the members of that committee arranged for 28 January 2015.
31
On 15 January 2015, the applicant submitted written observations to the APA Special Advisory Committee. On 28 January 2015, that committee heard the applicant, X and also CN, a colleague of the applicant who had likewise submitted a request for assistance relating to alleged psychological harassment by X (judgment of 26 March 2015, CN v ParliamentF‑26/14, EU:F:2015:22).
32
By judgment of 6 October 2015, CH v Parliament (F‑132/14, EU:F:2015:115), the Civil Service Tribunal, inter alia, annulled the decision of 3 March 2014, as upheld by the decision of 4 August 2014 rejecting the complaint, in so far as, following the annulment, by the judgment of 12 December 2013, CH v Parliament (F‑129/12, EU:F:2013:203), of the first decision rejecting the request for assistance, the Parliament had not decided to open an administrative inquiry into the allegations of psychological harassment and had thus failed to comply with Article 266 TFEU. Furthermore, the Parliament was ordered, in particular, to pay the applicant the sum of EUR 25000 as damages for the non-material harm suffered, plus default interest, in relation to that failing by the AECE.
33
On 18 May 2016, in accordance with Article 10 of the APA Internal Rules concerning harassment, as amended by the decision of the Bureau of the Parliament of 6 July 2015, which provides that the APA Special Advisory Committee must forward its confidential report to the President of the Parliament and no longer to the College of Quaestors, the President of the Parliament, after examining the findings of the APA Special Advisory Committee, which were adopted on completion of the administrative inquiry, informed the applicant that the behaviour she described in the request for assistance did not, in his view, constitute inappropriate conduct on the part of a Member of the European Parliament towards an APA and that he would forward the file to the AECE in order for it to adopt a decision on the request for assistance (‘the reasoned decision’).
34
The President of the Parliament, who is empowered, under Article 12 of the APA Internal Rules concerning harassment, as amended by the decision of the Bureau of the Parliament of 6 July 2015, to take, ‘in the light of the opinion delivered by the [APA Special Advisory Committee]’, ‘a reasoned decision as to whether or not it has been prove[n] that harassment has occurred’, and, if appropriate, to ‘impose a penalty on the Member concerned in accordance with Rules 11 and 166 of Parliament’s Rules of Procedure’, noted, in the reasoned decision, that the APA Special Advisory Committee found it proven in particular that X frequently criticised the applicant, including in public; that she sometimes used a harsh tone when speaking to her; that she sometimes criticised her after giving contradictory instructions; that she sometimes contacted her when she was on sick leave; that she made her look at her emails during holidays; that she had stated in the press that the applicant was incompetent; and that she had demoted the applicant.
35
In the reasoned decision, the President of the Parliament found that the behaviour described was intentional within the meaning of Article 12a of the Staff Regulations and that it had been repetitive over time. Nevertheless, in relation to the criticism by X, the use of harsh language, criticism of the applicant’s mistakes and X’s demands while the applicant was on leave, he found that X treated all her staff in the same way and that this seemed to be rather because X was highly strung and had difficulty in properly managing her staff. That behaviour was therefore not aimed specifically at the applicant. In relation to the statements X had made, according to the President of the Parliament they had to be assessed in the context of the judgment of 12 December 2013, CH v Parliament (F‑129/12, EU:F:2013:203), which had unleashed a public campaign against the former Member of the European Parliament accused of psychological harassment, even though, in that judgment, the Civil Service Tribunal had not found it to have occurred. X therefore merely tried to defend herself against accusations of harassment that had been made public.
36
As regards the applicant’s demotion, the President of the Parliament found that, as a Member of the European Parliament, X had discretion to take that measure and that, in that respect, she had been dissatisfied with the applicant’s professional performance and her behaviour, and that this did not help ease tensions either in relation to X or other members of her team.
37
In the reasoned decision, the President of the Parliament therefore found that, assessed overall, the facts alleged by the applicant did not constitute inappropriate conduct by X giving rise to psychological harassment within the meaning of Article 12a of the Staff Regulations. Specifically, given that, in the light of the particular working relationship between a Member of the European Parliament and his or her APA, X’s behaviour could not be regarded as excessive and open to criticism, an impartial and reasonable observer of normal sensitivity would not have considered the facts alleged to undermine the applicant’s personality, dignity or physical or psychological integrity.
38
The President of the Parliament therefore informed the applicant that he was passing her file to the AECE, which was responsible for ruling on the request for assistance.
39
On 13 January 2017, the applicant alerted the AECE to the fact that, following the reasoned decision, she had still not heard from it, although the request for assistance had remained unresolved for over five years.
40
By letter of 24 January 2017, the Parliament’s Director-General for Personnel invited the applicant to submit her observations on the reasoned decision by 10 February 2017.
41
By letter of 10 February 2017, the applicant submitted her observations, in which she disputed both the findings of the APA Special Advisory Committee and those of the President of the Parliament in the reasoned decision. She also criticised the circumstances in which that committee had conducted the hearings, in particular the fact that she had not been sent the report it had drawn up, the list of witnesses heard or the minutes of those hearings, despite her requests for them.
42
By decision of 20 March 2017, the Parliament’s Director-General for Personnel, acting as the AECE, rejected the request for assistance (‘the contested decision’). In essence, he found first of all that the applicant had no personal right to be sent the report drawn up by the APA Special Advisory Committee, the list of the witnesses heard or the minutes of the hearing of witnesses, since she had already received full and detailed reasons for her allegations being rejected as unfounded, in this instance in the reasoned decision. He then found that the Parliament’s Jurisconsult was entitled to attend hearings before the APA Special Advisory Committee and that the fact that the applicant had not had an opportunity to be assisted by her advisers before that advisory body did not amount to disregard for the principle of equality of arms in that respect. Lastly, on the substance of the case, the Director-General for Personnel indicated in essence that he concurred fully with the findings made by the President of the Parliament in the reasoned decision.
43
By letter of 28 April 2017, under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), the applicant requested access to the documents contained in the file on her held by the General Advisory Committee and by the APA Special Advisory Committee, in particular the report drawn up by the latter. That request was rejected by a decision of 16 June 2017, and the Parliament confirmed that rejection on 21 August 2017, on the grounds that disclosure of those documents could undermine the integrity of X and the protection of the witnesses’ personal data.
44
On 20 June 2017, the applicant lodged a complaint against the contested decision, under Article 90(2) of the Staff Regulations. In support of her complaint she claimed infringement of the principle of good administration, the obligation to state reasons, Article 25 of the Staff Regulations, the right to be heard, the duty to have due regard to the welfare of officials and the reasonable time principle, and also a manifest error of assessment, infringement of Article 31 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and infringement of Articles 12a and 24 of the Staff Regulations.
45
By decision of 26 October 2017, the Secretary-General of the Parliament, acting as the AECE, partially upheld the claim for compensation contained in the complaint of 20 June 2017 and granted the applicant ex æquo et bono EUR 1500 in respect of the length of time the AECE took between the reasoned decision and the contested decision, which, according to the Secretary-General, could have been shorter. In other respects, he rejected the complaint, in particular in relation to the arguments disputing the legality of the contested decision. The Secretary-General of the Parliament accordingly found, in common with the President of the Parliament, that the facts alleged did not amount to psychological harassment within the meaning of Article 12a of the Staff Regulations (‘the decision rejecting the complaint’).
Procedure and forms of order sought by the parties
46
On 17 April 2018, in so far as, in her application, the applicant sought an order that the defendant produce those documents, the General Court requested the Parliament, as a measure of organisation of procedure, in the context of filing its defence and, if necessary, in the form of a non-confidential version, to produce the final conclusions of the APA Special Advisory Committee on the applicant’s case and the minutes of the hearing of witnesses by that advisory body.
47
The Parliament filed its defence on 2 May 2018. However, by letter of 3 May 2018, it stated that it was refusing to produce the documents requested, explaining that it was essential for the smooth functioning of the APA Special Advisory Committee, set up following the judgment of 12 December 2013, CH v Parliament (F‑129/12, EU:F:2013:203), that the work and deliberations of that advisory committee, on which three Quaestors had agreed to sit, should remain confidential vis-à-vis the applicant. The Parliament in fact noted that, in the case giving rise to the judgment of 13 July 2018, Curto v Parliament (T‑275/17, EU:T:2018:479), and in the pending case QH v Parliament (T‑748/16), the General Court had found that documents, similar to those in question in the present case, were not confidential vis-à-vis the applicants in those cases and accordingly forwarded them to those applicants. Consequently, according to the Parliament, ‘faced with a practice that is becoming systematic and threatens the very existence of the mechanism for handling claims of harassment made by APAs against Members of the Parliament, the institution regrets having to state that it will no longer disclose any secret document to the General Court unless it knows that it will not under any circumstances be disclosed [to the applicant]’.
48
By order of 18 May 2018, the General Court ordered the Parliament, under Article 92(3) of its Rules of Procedure, to produce the conclusions and any minutes of the hearing of witnesses prepared by the APA Special Advisory Committee pursuant to the request for assistance, and stated that those documents would not, at that stage, be disclosed to the applicant.
49
By letter of 4 June 2018, the Parliament repeated its refusal to produce the documents requested by way of a measure of inquiry, but offered to the General Court to disclose them to it informally, if it so wished, in such a way that they would not be included in the case file and that ‘the institution would thereby be assured that the applicant [would] not have access to documents that it consider[ed] to be secret and confidential’.
50
On 28 June 2018, the parties were invited, as a measure of organisation of procedure, to adopt a position on the appropriate action to take, for the purposes of handling the case, as a result of the Parliament’s decision, notified on 4 June 2018, by which it refused to send to the General Court the documents which it had been ordered to produce by the order of 18 May 2018. The parties’ attention was drawn in that regard to, first, the judgments of 10 June 1980, M. v Commission (155/78, EU:C:1980:150), and of 12 May 2010, Commission v Meierhofer (T‑560/08 P, EU:T:2010:192), and, secondly, to the judgment of 29 June 2018, HF v Parliament (T‑218/17, EU:T:2018:393).
51
The applicant and the Parliament filed their observations in that regard on 10 and 11 July 2018 respectively.
52
On 8 August 2018, the General Court having found that a second exchange of pleadings was not necessary and having furthermore refused the applicant’s request of 2 August 2018 for such an exchange, the written part of the procedure was concluded and the parties presented oral argument at the hearing on 25 October 2018.
53
The applicant claims that the General Court should:
–
annul the contested decision and, in so far as necessary, the decision rejecting the complaint;
–
order the Parliament to pay the sum of EUR 68500 as compensation for the non-material harm she suffered;
–
order the European Parliament to pay the costs.
54
The European Parliament contends that the General Court should:
–
dismiss the action as unfounded;
–
order the applicant to pay the costs.
Law
The claim for annulment
55
In support of her claim for annulment of the contested decision and, in so far as necessary, the decision rejecting the complaint, the applicant raises two pleas in law, alleging, first, infringement of Article 41 of the Charter, Article 25 of the Staff Regulations and the obligation to state reasons, the principle of good administration, the right to be heard and the rights of the defence and the duty to have due regard to the welfare of officials and, secondly, a manifest error of assessment, infringement of Article 31 of the Charter, Articles 12a and 24 of the Staff Regulations and the duty to have due regard to the welfare of officials.
The subject matter of the claim for annulment
56
According to settled case-law, a claim for annulment formally directed against the decision rejecting a complaint has the effect of bringing before the Court the act against which the complaint was submitted, where that claim, as such, lacks any independent content (see, to that effect, judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 6 April 2006, Camós Grau v Commission, T‑309/03, EU:T:2006:110, paragraph 43).
57
In the present case, since the decision rejecting the complaint merely confirms the contested decision, the Court finds that the head of claim seeking annulment of the decision rejecting the complaint lacks any independent content and there is therefore no need to rule specifically on that head of claim, even though, when examining the legality of the contested decision, it is necessary to take into account, on the one hand, the statement of reasons for the decision rejecting the complaint, as it is deemed also to cover the statement of reasons in the contested decision (see, to that effect, judgment of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraphs 58 and 59 and the case-law cited) and, on the other, the statement of reasons in the reasoned decision, to which the contested decision refers.
First plea in law, alleging infringement of Article 41 of the Charter, Article 25 of the Staff Regulations and of the obligation to state reasons, the principle of good administration, the right to be heard, the rights of the defence and the duty to have due regard to the welfare of officials
58
In support of her first plea, the applicant claims that, because the AECE did not forward to her, at the pre-litigation stage, the report of the APA Special Advisory Committee, the list of the witnesses heard by that committee and the minutes of the hearing of those witnesses, she is unable to understand the reasoning set out in the reasoned decision, to which the contested decision refers, on the basis of which the alleged facts were found not to constitute psychological harassment against her. Nor, according to the applicant, is she in a position to assess, first, whether that advisory committee heard a number of witnesses, in particular the witnesses that she had called, including two doctors, or, secondly, whether the AECE duly took into account the medical certificates issued by a neuropsychiatrist and by her regular doctor that she had nevertheless provided.
59
The applicant also criticises the AECE for failing to forward to her the report of the APA Special Advisory Committee. She claims that was all the more necessary that it be forwarded in so far as the contested decision contained an insufficient statement of reasons. She also asserts that the report in question and the minutes of the hearing of witnesses had to be forwarded so that she could satisfy herself that the witness evidence in question had not been distorted.
60
In any event, the applicant submits, failure to disclose to her at the pre-litigation phase at least a non-confidential version of the report of the APA Special Advisory Committee and the minutes of the hearing of witnesses infringes her right to a proper hearing, as the General Court confirmed in the judgment of 29 June 2018, HF v Parliament (T‑218/17, EU:T:2018:393). The AECE’s attitude also amounts to a breach of its duty to have due regard to the welfare of officials, since it manifestly failed to have regard to the value for the applicant of having access to those documents and to adequate reasons why the request for assistance was rejected.
61
The Parliament contends that the plea in law should be rejected as unfounded.
62
It argues that, in the present case, the AECE did comply with its obligation to state reasons. As regards the hearing of witnesses, whilst it acknowledges that the evidence of the witnesses may contribute in a valuable way to supplementing or compensating for the lack of evidence from the person requesting assistance, it is of the view, first, that the evidentiary value of that witness evidence must not be overplayed. Secondly, ‘to sacrifice the confidentiality of which witnesses are assured in order to give priority to excessive transparency would inevitably exhaust third parties’ willingness to give full, frank and objective evidence or even to give evidence at all’. The Parliament therefore believes that confidentiality must apply both to the report of the APA Special Advisory Committee and to the minutes of the hearing of witnesses and the list of the witnesses heard by the APA Special Advisory Committee, thereby justifying, first, the fact that those documents should not under any circumstances be in the applicant’s possession and, secondly, its refusal to comply with the General Court’s measure of inquiry.
63
As regards the right to be heard, the Parliament is of the view that in the present case it did uphold that right, since the applicant had an opportunity to submit her observations on the reasoned decision and since, in any event, the report drawn up by the APA Special Advisory Committee did not need to be sent for her to be able to put forward her observations. Furthermore, given that sending that report would harm the effectiveness of the proceedings of that committee, the Parliament asserts that the AECE did not have an obligation to forward the report to the applicant, any more than it did to send the minutes of the hearing of witnesses.
– Preliminary considerations on the handling of a request for assistance under the Staff Regulations
64
As a preliminary issue, it should be noted that, where a request for assistance within the meaning of Article 24 of the Staff Regulations is made to the AECE or, as the case may be, the authority vested with an institution’s appointing powers (‘the appointing authority’), pursuant to Article 90(1) of the Staff Regulations, that authority must, by virtue of the duty to provide assistance and if it is faced with an incident which is incompatible with the good order and tranquillity of the service, intervene with all the necessary vigour and respond with the rapidity and solicitude required by the circumstances of the case so as to ascertain the facts and, having done so, to take the appropriate action in full knowledge of the matter. To that end, it is sufficient that the official or other member of staff who is seeking the protection of his or her institution provide prima facie evidence that the attacks of which that person claims to have been the victim actually took place. When such evidence is provided, the institution concerned is then under an obligation to take the appropriate measures, in particular to conduct an administrative inquiry, with the cooperation of the complainant, to determine the facts which gave rise to the request for assistance (judgments of 26 January 1989, Koutchoumoff v Commission, 224/87, EU:C:1989:38, paragraphs 15 and 16; of 12 July 2011, Commission v Q, T‑80/09 P, EU:T:2011:347, paragraph 84; and of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraph 46).
65
In cases of harassment allegations, the duty to provide assistance includes, in particular, the duty of the administration to examine seriously, expeditiously and in total confidentiality, the request for assistance in which the harassment is alleged and to inform the complainant of the action to be taken in respect of that complaint (judgments of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraph 47, and of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 88).
66
That obligation exists even where the request for assistance relates to a ‘third party’ within the meaning of Article 24 of the Staff Regulations, who is a Member of an institution rather than an official or other staff member (see, to that effect, judgments of 12 December 2013, CH v Parliament, F‑129/12, EU:F:2013:203, paragraphs 54 to 58, and of 26 March 2015, CN v Parliament, F‑26/14, EU:F:2015:22, paragraph 42). In the case of Members of Parliament, they are also bound to comply with the prohibition on any psychological or sexual harassment under Article 12a of the Staff Regulations (see, to that effect, judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraphs 79 to 81).
67
Then, with regard to the measures to be taken in a situation which, as in the present case, is covered by Article 24 of the Staff Regulations, the administration enjoys a broad discretion – subject to review by the EU judicature – regarding the choice of measures and methods for implementing Article 24 of the Staff Regulations (judgments of 15 September 1998, Haas and Others v Commission, T‑3/96, EU:T:1998:202, paragraph 54; of 25 October 2007, Lo Giudice v Commission, T‑154/05, EU:T:2007:322, paragraph 137; and of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraph 48).
68
Where, as a result of a request for assistance of the kind at issue in the present case, the administration decides on an administrative inquiry and, where applicable, delegates that inquiry to an advisory committee, as in the present case (see, to that effect, judgment of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 99), the very point of the administrative inquiry is to confirm or negate the existence of psychological harassment within the meaning of Article 12a of the Staff Regulations. Accordingly, the AECE must not prejudge the outcome of the inquiry and must not – even impliedly – adopt a position on the reality of the alleged harassment before having received the results of the administrative inquiry. In other words, it is inherent in the fact that an administrative inquiry has been opened that the administration must not adopt a position prematurely, on the basis in essence of the unilateral description of the facts provided in the request for assistance, since it must, on the contrary, reserve its position until that inquiry has been completed, having been undertaken as it must by setting the allegations of the official or other staff member who has made the request for assistance against the version of the facts provided by the alleged harasser and against that of any persons who may have been witnesses to the facts that are alleged to have amounted to a breach of Article 12a of the Staff Regulations by the alleged harasser (see, to that effect, judgment of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraph 59 and the case-law cited).
69
In that respect, should the administration find, on completion of an administrative inquiry, possibly conducted with the assistance of a separate department of the AECE, such as the APA Special Advisory Committee, that there has been psychological harassment, that finding is in itself likely to have a beneficial effect in the therapeutic process of recovery of an official or other member of staff who has been harassed and may, furthermore, not only be grounds for resulting disciplinary steps against the harasser, but may also be used by the victim for the purposes of a national court action, in respect of which the AECE’s duty to provide assistance under Article 24 of the Staff Regulations will apply and will not expire at the end of the period of employment of the staff member concerned. On the other side of the equation, conducting an administrative inquiry through to completion may make it possible to disprove the allegations made by the purported victim, thereby making it possible to repair the damage which such an accusation, should it prove to be unfounded, may have caused to the person named as the alleged harasser by an inquiry procedure (see, to that effect, judgment of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraph 61 and the case-law cited).
70
On that point it should be noted, first of all, that the Staff Regulations contain no specific procedure that the administration is bound to follow when handling a request for assistance within the meaning of Article 24 of the Staff Regulations, submitted under Article 90(1) of those Regulations concerning an allegation by an official or other staff member that a different official or staff member, or indeed a Member of an institution, has behaved towards him or her in a manner that infringes Article 12a of the Staff Regulations (judgment of 29 June 2018, HF v Parliament, T‑218/17, under appeal, EU:T:2018:393, paragraph 65).
71
Thereafter, it is worth noting that an administrative inquiry procedure carried out following the submission, by an official or other staff member, of a request for assistance within the meaning of Article 24 of the Staff Regulations, concerning the acts of a third party, who is an official or other staff member, or even a Member of an institution, allegedly constituting psychological harassment within the meaning of Article 12a of the Staff Regulations, is indeed initiated at the request of the person concerned, but cannot be regarded as an inquiry procedure initiated against that official or other staff member (see, to that effect, judgment of 16 May 2012, Skareby v Commission, F‑42/10, EU:F:2012:64, paragraph 46). According to settled case-law, the role of the person who submitted the request for assistance alleging harassment consists essentially in cooperating in the proper conduct of the administrative inquiry in order to establish the facts (judgments of 26 January 1989, Koutchoumoff v Commission, 224/87, EU:C:1989:38, paragraphs 15 and 16; of 25 October 2007, Lo Giudice v Commission, T‑154/05, EU:T:2007:322, paragraph 136; and of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 87).
72
Respect for the rights of the defence, as referred to in Article 48 of the Charter, ‘Presumption of innocence and right of defence’, does indeed require that the addressees of decisions which significantly affect the interests of those addressees should be placed in a position in which they may effectively make known their views with regard to the inculpatory evidence ‘against’ them on which those decisions may be based (judgment of 14 June 2016, Marchiani v Parliament, C‑566/14 P, EU:C:2016:437, paragraph 51), and includes respect for the audi alteram partem principle, which goes beyond respect for the right to be heard, which is furthermore also safeguarded as a component of Article 41 of the Charter, ‘Right to good administration’. Nevertheless, respect for the rights of the defence, within the meaning of Article 48 of the Charter, may be invoked only in the context of a procedure that is initiated ‘against’ a person and is liable to culminate in a measure adversely affecting that person in which the administration upholds inculpatory evidence against him or her (judgment of 29 June 2018, HF v Parliament, T‑218/17, under appeal, EU:T:2018:393, paragraph 67; see also, to that effect, judgment of 16 May 2012, Skareby v Commission, F‑42/10, EU:F:2012:64, paragraph 46).
73
It follows that, in the context of a procedure undertaken by the appointing authority or the AECE in order to adopt a decision on a request for assistance based on infringement of Article 12a of the Staff Regulations, the person who submitted that request may not invoke the principle of respect for the rights of the defence under Article 48 of the Charter as such, or, in that context, in the form of a breach of the audi alteram partem rule (judgment of 29 June 2018, HF v Parliament, T‑218/17, under appeal, EU:T:2018:393, paragraph 68).
74
The same also applies to the alleged harasser. It is true that the alleged harasser may personally have been called into question in the request for assistance that led to the opening of the administrative inquiry and may, already at that stage, need to defend him or herself from the accusations made, which justifies that person being heard, possibly on several occasions, in the context of the inquiry (judgment of 29 June 2018, HF v Parliament, T‑218/17, under appeal, EU:T:2018:393, paragraph 69; see also, to that effect, judgment of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 147). However, it would be only at a later stage in the procedure, if disciplinary proceedings were to be brought against the alleged harasser – in this instance by referring the matter to the Disciplinary Board or any other similar body – that he or she would enjoy the rights of the defence within the meaning of Article 48 of the Charter and, in particular, the audi alteram partem rule, bearing in mind, where an official or other staff member is called into question, the fact that the Staff Regulations provide only for a right to be heard with regard to the principle of the opening of disciplinary proceedings, and that the proceedings do not become inter partes proceedings until after the matter has been referred to the disciplinary board (judgment of 29 June 2018, HF v Parliament, T‑218/17, under appeal, EU:T:2018:393, paragraph 69; see also, to that effect, judgment of 19 March 1998, Tzoanos v Commission, T‑74/96, EU:T:1998:58, paragraph 340).
75
Notwithstanding the foregoing, the person who submitted the request for assistance, as the presumed victim, must be granted procedural rights that are disparate from, and not as extensive as, the rights of defence enshrined in Article 48 of the Charter (judgments of 16 May 2012, Skareby v Commission, F‑42/10, EU:F:2012:64, paragraph 48, and of 16 December 2015, De Loecker v EEAS, F‑34/15, EU:F:2015:153, paragraph 43) and which, ultimately, arise from the right to good administration, as is now provided for by Article 41 of the Charter (judgment of 29 June 2018, HF v Parliament, T‑218/17, under appeal, EU:T:2018:393, paragraph 70).
76
It should be recalled that the purpose of an administrative inquiry initiated by the administration in response to a request for assistance within the meaning of Article 24 of the Staff Regulations is that the findings of the inquiry should provide clarification about the facts at issue, so that the administration may either decide that no action is to be taken on the request for assistance or, where the facts alleged are proven and come within Article 12a of the Staff Regulations, decide as the case may be that disciplinary proceedings are to be initiated so that, if appropriate, disciplinary sanctions may be imposed on the alleged harasser (see, in relation to an official or other staff member, judgment of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraph 57, and, in relation to a Member of an institution, judgment of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 90).
77
Accordingly, on the one hand, where, in the context of the measures it decides to take in response to the request for assistance, the administration decides to bring a disciplinary procedure under Article 86 of the Staff Regulations or any other similar procedure, on the grounds that the person implicated in that request has infringed the prohibition under Article 12a of the Staff Regulations, the procedure thereby initiated is brought against that person, the alleged harasser, who accordingly then enjoys all the procedural safeguards that implement the rights of the defence within the meaning of Article 48 of the Charter and the audi alteram partem principle in particular. Those safeguards are, in the case of an official or other staff member, those established in Annex IX to the Staff Regulations (judgment of 29 June 2018, HF v Parliament, T‑218/17, under appeal, EU:T:2018:393, paragraph 72), and in the case of a Member of the European Parliament, those established in Article 166 of that institution’s Rules of Procedure.
78
On the other hand, where the administration decides, in response to the request for assistance, that the matters relied upon in support of the request for assistance have not been established and that, therefore, the behaviour adduced does not amount to psychological harassment within the meaning of Article 12a of the Staff Regulations, that decision adversely affects the person making the request for assistance (see, to that effect, judgments of 12 September 2007, Combescot v Commission, T‑249/04, EU:T:2007:261, paragraph 32, and of 11 May 2010, Nanopoulos v Commission, F‑30/08, EU:F:2010:43, paragraph 93), and affects that person adversely within the meaning of Article 41(2)(a) of the Charter (judgment of 29 June 2018, HF v Parliament, T‑218/17, under appeal, EU:T:2018:393, paragraph 73).
79
Accordingly, in order for the right to good administration to be observed, the person who submitted the request for assistance must necessarily, in accordance with Article 41(2)(a) of the Charter, be properly heard prior to the appointing authority or the AECE adopting such a decision rejecting the request for assistance. That means that the person concerned must be heard in advance in relation to the grounds that the appointing authority or the AECE intends to rely on in support of its decision rejecting the request (judgment of 29 June 2018, HF v Parliament, T‑218/17, under appeal, EU:T:2018:393, paragraph 74).
80
In the present case, it is undisputed that the applicant was heard by the AECE, in this instance on the basis of the reasoned decision and the letter of 24 January 2017 from the Parliament’s Director-General for Personnel, before that authority adopted the contested decision. Nevertheless, in the applicant’s view she was not properly heard in connection with the written observations that she submitted on 10 February 2017, since she did not have access for that purpose to the APA Special Advisory Committee’s opinion, report or conclusions – since it was not necessarily known at that stage precisely what form that committee’s position would take – or to the minutes of the hearing of witnesses.
81
It is therefore necessary to determine whether, in the present case, the applicant’s right to be heard required her also to have access to the opinion of the APA Special Advisory Committee, ultimately adopted in the form of a report or of conclusions, and the minutes of the hearings held by the committee, in order to prepare her observations on the grounds on which the AECE relied, having reference to the reasoned decision, in rejecting the request for assistance.
– The AECE’s obligation to forward the opinion of the APA Special Advisory Committee to the applicant before adopting the contested decision, in order to observe her right to be heard
82
In a case concerning the body of rules applicable to the European Central Bank (ECB) rather than the Staff Regulations, the General Court found that, where the administration decided to open an administrative inquiry and that inquiry led to a report being prepared, the ECB staff member who brought a ‘complaint’, to use the terminology of the body of rules applicable to that institution, alleging facts purportedly falling within the concept of psychological harassment, as that concept was defined in the rules applicable to ECB staff, had, in common with the accused person, to be given an opportunity to make his or her views known on the draft inquiry report, as provided for by those rules, before the ECB administration ruled on the complaint or, at least, on the matters which that administration took into account in adopting its decision (see, to that effect, judgment of 23 September 2015, Cerafogli v ECB, T‑114/13 P, EU:T:2015:678, paragraph 41).
83
Under the Staff Regulations, the appointing authority or the AECE, as the case may be, is required to handle not a complaint but a request for assistance submitted under Article 24 and Article 90(1) of the Staff Regulations. In contrast to the regime applicable to the ECB, the Staff Regulations lay down no specific procedure for how the appointing authority or the AECE should handle a request for assistance, within the meaning of Article 24 of the Staff Regulations, alleging infringement of Article 12a of those Regulations, nor any provision that, in itself, requires it to forward the opinion, report or conclusions of an advisory committee, such as the APA Special Advisory Committee, or the minutes of the hearing of any witnesses heard by that committee to the party that has submitted a request for assistance or to the person called into question in that request as the presumed harasser (judgment of 29 June 2018, HF v Parliament, T‑218/17, under appeal, EU:T:2018:393, paragraph 78).
84
It has therefore been found that, provided the interests of persons who have been called into question and of persons who have been witnesses in the inquiry are protected, no provision of the Staff Regulations prevents the final investigation report being sent to a third party who has a legitimate interest in knowing details of it, as is the case of the person who submitted the request for assistance, under Article 24 of the Staff Regulations, alleging infringement of Article 12a of the Staff Regulations. It has accordingly been observed in that context that, by virtue of their autonomy when implementing those provisions of the Regulations, a number of institutions have sometimes adopted that solution, by sending the person requesting assistance the final inquiry report, either before the action is brought, by annexing it to the final decision taken on the request for assistance, pursuant to a measure of organisation of procedure decided on by the EU court ruling at first instance (see, to that effect, judgment of 11 July 2013, Tzirani v Commission, F‑46/11, EU:F:2013:115, paragraph 133), such as that of 17 April 2018 on which the Parliament refused to act in the present case.
85
The General Court is nevertheless of the view that, where the AECE decides, as in the present case, to call for the opinion of an advisory committee to which it entrusts responsibility for conducting an administrative inquiry, ultimately given in the form of a report or conclusions, and where, in the decision on the request for assistance, it takes into account the opinion thus issued by that Advisory Committee, that opinion, which is advisory and can be drafted in a non-confidential form respecting the anonymity granted to witnesses, must, in accordance with the right to be heard of the person who submitted the request for assistance, in principle be communicated to the latter, even if the APA Internal Rules concerning harassment do not provide for such communication (see, to that effect, judgment of 29 June 2018, HF v Parliament, T‑218/17, under appeal, EU:T:2018:393, paragraph 80).
86
That view is not shaken by the fact, advanced by the Parliament, that the document at issue in the present case is one drawn up by the APA Special Advisory Committee, instead of one drawn up by the General Advisory Committee like the document in question in the judgment of 29 June 2018, HF v Parliament (T‑218/17, under appeal, EU:T:2018:393).
87
Admittedly, as the Parliament asserts, the APA Special Advisory Committee provides only a ‘reasoned opinion’ to the President of the Parliament, which is not binding on the Parliament when it, in turn, adopts a reasoned decision on which the AECE will then base its ruling on the request for assistance. The Parliament emphasises that point noting that, in the case of requests for assistance from APAs that are handled jointly with the APA Special Advisory Committee, in contrast to the situation relating to requests for assistance handled with the cooperation of the General Advisory Committee, the President of the Parliament intervenes and ‘has exclusive power to decide whether or not there is harassment, which is much better defined than the power of the Secretary-General in the case of harassment relating to officials’.
88
Nevertheless, neither that fact, nor the Parliament’s concern to ensure that the proceedings of the APA Special Advisory Committee remain strictly confidential, in order to ensure that the Quaestors will continue to agree to participate in its work, can undermine the fundamental right of every official or other staff member, under Article 41(2)(a) of the Charter, to be properly heard, before the AECE rules on the request for assistance he or she has submitted.
89
In particular, even though the opinion issued by the APA Special Advisory Committee is not legally binding, given that both the President of the Parliament, when adopting the reasoned decision, and the AECE, when ruling on the request for assistance, had access to it, that opinion should also have been brought to the attention of the APA, so that he or she could adopt a position on its content before the AECE, relying, albeit indirectly, on that opinion, ruled on the request for assistance. Accordingly, in the present case, the fact that only the reasoned decision was made available to the applicant was insufficient even though, in that decision, the President of the Parliament stated that he was giving an account of the content of the findings of the APA Special Advisory Committee.
90
Furthermore, as regards the risk that the identity of the witnesses, including any Members of the European Parliament, would be revealed if the content of the APA Special Advisory Committee’s opinion was disclosed to the applicant, it should be noted that nothing prevents that committee from drawing up that opinion, ultimately in the form of a report or conclusions, in such a way that the witnesses who assisted the administrative inquiry cannot be identified. That line of argument therefore cannot be upheld, with all the more reason in the context of the present case because, since it was unable to acquaint itself with it, the General Court does not even know the content of the document in question and nor can it be certain, given the varying ways in which the Parliament refers to it, whether it took the form of an opinion, a report or conclusions.
91
In the light of all the foregoing, it must be held that because, in the contested decision and the decision rejecting the complaint, the AECE refused to disclose to the applicant the opinion of the APA Special Advisory Committee, issued ultimately in the form of a report or of conclusions, it infringed the right to be heard, under Article 41 of the Charter, and therefore gave her an insufficient hearing, in the present case, solely on the basis of the reasoned decision setting out the grounds on which the President of the Parliament held, on the basis of that opinion, that the allegations in the request for assistance were unfounded.
– The AECE’s obligation to forward the minutes of the hearing of witnesses to the applicant before adopting the contested decision, in order to observe her right to be heard
92
As regards the minutes of the hearing of witnesses by the APA Special Advisory Committee, the General Court is of the view that, in principle, in order to ensure effective implementation of the prohibition of all forms of psychological or sexual harassment at the workplace, it is permissible for the administration to provide for the possibility of assuring witnesses who agree to provide their accounts of the facts at issue in an alleged case of harassment that their testimony will remain confidential vis-à-vis both the alleged harasser and the alleged victim, at least in the context of the procedure followed for handling a request for assistance within the meaning of Article 24 of the Staff Regulations (judgment of 29 June 2018, HF v Parliament, T‑218/17, under appeal, EU:T:2018:393, paragraph 83).
93
First, given that, in the context of handling a request for assistance, one of the objectives assigned to the administration is to restore tranquillity to the service, awareness of the content of the testimonies, on the part of both the alleged harasser and the alleged victim, might jeopardise that objective by reviving any interpersonal animosity within the service or the institution and by deterring any persons who might provide relevant testimony in the future from doing so (judgment of 29 June 2018, HF v Parliament, T‑218/17, under appeal, EU:T:2018:393, paragraph 84).
94
Secondly, where an institution receives information provided on a voluntary basis, but accompanied by a request for confidentiality in order to protect the informant’s anonymity, an institution which accepts such information is bound to comply with such a condition (see, to that effect and by analogy, judgment of 7 November 1985, Adams v Commission, 145/83, EU:C:1985:448, paragraph 34). The same may apply where officials or other staff members or even Members of an institution agree to provide their testimonies in order to enable the administration to shed light on the facts at issue in a request for assistance, but demand in return that their anonymity be ensured vis-à-vis the alleged harasser and/or the purported victim, bearing in mind that, although their participation is desirable, under the Staff Regulations they are not necessarily required to collaborate in the inquiry by providing their testimonies (judgment of 29 June 2018, HF v Parliament, T‑218/17, under appeal, EU:T:2018:393, paragraph 85).
95
Nevertheless, where the administration decides to commence disciplinary proceedings against the presumed harasser, it is for the appointing authority or the AECE to forward to the person concerned any document it wishes to submit to be assessed by the disciplinary board, which is responsible, if appropriate, for hearing the witnesses to the alleged facts again (judgment of 29 June 2018, HF v Parliament, T‑218/17, under appeal, EU:T:2018:393, paragraph 86). That reasoning applies by analogy in the case of proceedings against Members of an institution, such as Members of the European Parliament, for whom there is a specific procedure, such as that under Article 166 of that institution’s Rules of Procedure.
96
In the light of the foregoing, it must be held that in the present case the AECE did not infringe the right to be heard, under Article 41 of the Charter, when it refused to forward the minutes of the hearing of witnesses to the applicant at the pre-litigation stage.
– The consequences of infringing the right to be heard by not forwarding the opinion of the APA Special Advisory Committee at the pre-litigation stage
97
As regards the consequences of the fact that the applicant was not given the APA Special Advisory Committee’s opinion at the pre-litigation stage, according to the case-law, even where the right to be heard has been infringed, it is also necessary, for the plea to be successful, that had it not been for that irregularity, the outcome would have been different (see, to that effect, order of 14 April 2016, Dalli v Commission, C‑394/15 P, not published, EU:C:2016:262, paragraph 41; see also, to that effect, judgments of 6 February 2007, Wunenburger v Commission, T‑246/04 and T‑71/05, EU:T:2007:34, paragraph 149, and of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 157).
98
In order to examine that question, both the applicant and the General Court would have required access to the opinion of the APA Special Advisory Committee, ultimately in the form of a report or of conclusions, where applicable as a non-confidential version, so that, first, the applicant could have set out which arguments she would have been able to advance at the pre-litigation stage had she had access to that document and, secondly, the General Court would have been able to assess whether that circumstance could have led to a different outcome to the AECE’s handling of the request for assistance.
99
However, because the Parliament refused to forward to the General Court both that opinion, ultimately in the form of a report or of conclusions, and moreover the minutes of the hearing of witnesses, even though it has been held that forwarding those minutes, during judicial proceedings, forms part of the right to effective judicial protection (see, to that effect, judgment of 23 September 2015, Cerafogli v ECB, T‑114/13 P, EU:T:2015:678, paragraphs 42 to 49), it was impossible for the General Court to carry out the judicial review entrusted to it by Article 270 TFEU and the Staff Regulations (see, to that effect, judgment of 10 June 1980, M. v Commission, 155/78, EU:C:1980:150, paragraph 20).
100
Since neither the FEU Treaty nor the Statute of the Court of Justice of the European Union, nor the Rules of Procedure, provide for the imposition of a sanction in the case of a refusal to comply with an order made under Article 92 of the Rules of Procedure ordering a measure of inquiry, such as that of 18 May 2018, the General Court’s only possible response to a refusal by the defendant, which moreover infringes the obligation of sincere cooperation under Article 13(2) TEU, is to draw all the appropriate inferences from that refusal in the decision closing the case (judgment of 12 May 2010, Commission v Meierhofer, T‑560/08 P, EU:T:2010:192, paragraph 73).
101
On that point, the Parliament cannot justify its refusal to provide the documents requested by the General Court in the order of 18 May 2018 by contending that, as the General Court held in the judgment of 29 June 2018, HF v Parliament (T‑218/17, under appeal, EU:T:2018:393, paragraphs 83 to 86), it is for the Parliament to protect the anonymity of persons, including Members of that institution, who have agreed to give their testimony, and that such protection necessarily involves maintaining absolute confidentiality in respect of the proceedings of the APA Special Advisory Committee, which must remain totally secret.
102
The Parliament could, admittedly, rely on those findings under Article 103 of the Rules of Procedure, concerning the handling of confidential information and material.
103
However, the fact that the Parliament could rely on Article 103 of the Rules of Procedure before the General Court did not relieve it of its obligation, by virtue of the principle of sincere cooperation under Article 13(2) TEU, to comply with the requirements of the order of 18 May 2018, which is enforceable by virtue of Article 280 TFEU.
104
In particular, contrary to the Parliament’s contentions, it is not for the parties to the proceedings but for the General Court to assess whether documents required to be produced under Article 92(3) of the Rules of Procedure are confidential and, where applicable, to assess whether, in the event that the EU court finds those documents to be confidential, it is appropriate not to forward them in their current form to the applicant, in order to protect the identity of witnesses, but instead to require the defendant to produce either a non-confidential version of those documents omitting the name of the witnesses and data from which their identity can be established without reasonable doubt (see, in relation to a measure of inquiry of that kind, judgment of 29 June 2018, HF v Parliament, T‑218/17, under appeal, EU:T:2018:393, paragraph 44), or a non-confidential summary of those documents.
105
Moreover, the latter option could have enabled the General Court, if applicable, to overcome the Parliament’s concern that, in view of the nature of the facts alleged, an anonymised version of those documents would not have afforded sufficient protection since, according to the Parliament, the witnesses’ identity could easily have been deduced from the facts reported or the statements made.
106
In any event, as regards the Parliament’s criticism of the General Court’s practice in which gave rise to the judgment of 13 July 2018, Curto v Parliament (T‑275/17, EU:T:2018:479) and in the pending case QH v Parliament (T‑748/16), it suffices to say that decisions of that kind cannot be regarded as abnormal, since the General Court merely applied the provisions of its Rules of Procedure, in particular Article 103 of those Rules (order of the Vice-President of the Court of 5 July 2018, Müller and Others v QH, C‑187/18 P(I), not published, EU:C:2018:543, paragraph 41).
107
Consequently, without it being necessary to examine either the first or the second plea in law any further, the contested decision must be annulled on the ground that the AECE infringed the applicant’s right to be properly heard before that authority rejected her request for assistance.
The claim for damages
108
In support of her claim for damages, the applicant submits that the Parliament should be found liable, first, for the illegality described in the two pleas seeking annulment and, secondly, for the faults committed by the APA Special Advisory Committee, and then by the AECE, in particular the fact that the APA Special Advisory Committee unlawfully denied her the right to be assisted by her adviser at her hearing on 28 January 2015, the fact that it would be inequitable for the institution’s medical officer to have a role only as an observer on that committee and the fact that the presence of a representative of the administration on the APA Special Advisory Committee infringed the principle of impartiality. According to the applicant, those factors contributed, in the present case, to making the procedure unbalanced, partial and non-transparent.
109
The applicant further criticises the Parliament for disregarding the reasonable time principle in so far as the procedure to handle the request for assistance took over two years and three months between the date on which she was heard by the APA Special Advisory Committee and the date on which the contested decision was adopted. The Parliament arguably acknowledged in that respect, in the decision rejecting the complaint, that there was no objective justification for the length of time between that hearing and the reasoned decision. The applicant asserts that she had to wait a further seven months once the reasoned decision was adopted for the AECE to ask her to submit her observations and that, furthermore, the AECE did not do so spontaneously, but in response to a request by the applicant.
110
The applicant accordingly claims compensation for three heads of non-material harm, that is to say, first, harm stemming from the climate of uncertainty, legal uncertainty and fear of being treated unfairly, amounting to EUR 5000; secondly, harm stemming from the AECE’s failure to act sufficiently quickly in handling the request for assistance, amounting to EUR 13500; and, thirdly, harm associated with the unlawful acts referred to in the two pleas seeking annulment, which should be quantified ex æquo et bono as EUR 50000, having regard to the difficulty she had in understanding the reasons for the rejection of her request for assistance and to the attitude of the AECE, which, despite its duty to provide assistance, has not given her the impression that it is genuinely trying to protect her.
111
The Parliament argues that the claim for damages should be dismissed.
112
In respect of the applicant’s wish to have her adviser accompany her when she was heard by the APA Special Advisory Committee, the Parliament contends that the applicant’s role in the administrative inquiry procedure is to give her version of the facts, so that the committee can determine whether the facts amount to psychological harassment, rather than to embark on an accusatory procedure against the presumed harasser. In reality, according to the Parliament, it is the APA who is in the position of accuser before the APA Special Advisory Committee, and the Member of the European Parliament, in contrast, who is in the position of having to defend him or herself. Since the alleged victim of psychological harassment has fewer procedural rights than the accused person, the applicant was therefore not entitled to require the assistance of her lawyer when she was heard by the APA Special Advisory Committee. The fact that the Internal APA Rules concerning harassment were amended only on 6 July 2015 to the effect that the alleged victim had to be heard alone is irrelevant in that respect because, first, that amendment merely codified the earlier practice and, secondly, according to the case-law in the judgment of 16 December 1976, Perinciolo v Council (124/75, EU:C:1976:186, paragraphs 35 to 37), an official or other staff member is only entitled to request the assistance of a lawyer during an administrative procedure if the applicable rules expressly so provide. The fact that the Parliament’s Jurisconsult was present when the applicant was heard was of no consequence whatsoever, according to the Parliament, because the Jurisconsult only had observer status. Moreover, the Jurisconsult’s presence was justified because it was necessary to ensure that the administrative inquiry was conducted in accordance with the law contained in the Staff Regulations. On the other hand, the Jurisconsult was not present in order to defend X’s interests against those of the applicant because, in any event, proceedings before the APA Special Advisory Committee are not contentious.
113
As regards the length of the procedure, the Parliament contends that, in the 16 months to which the applicant refers, the APA Special Advisory Committee held seven meetings, heard several witnesses and examined the facts alleged, and that this justified that length of time. Revealing at the time of that assertion that the committee in question issued a final report on 7 April 2016, the Parliament states that the compensation granted by the AECE, in response to the complaint, related only to the seven-month period that elapsed between the reasoned decision and the contested decision. In any event, the Parliament emphasises that it needed time to set up a structure capable of effectively examining harassment alleged against Members of that institution.
114
It must be recalled in that connection that, according to settled case-law, the annulment of an unlawful act, such as the contested decision, may constitute, in itself, appropriate and, in principle, sufficient compensation for any non-material harm which that act may have caused. However, that is not the case where the applicant shows that he or she has sustained non-material harm that can be separated from the illegality justifying the annulment and that cannot be compensated for in full by that annulment (see, to that effect, judgments of 6 June 2006, Girardot v Commission, T‑10/02, EU:T:2006:148, paragraph 131, and of 16 May 2017, CW v Parliament, T‑742/16 RENV, not published, EU:T:2017:338, paragraph 64).
115
As regards the claim for damages for the irregularities referred to in the first plea in law, annulment of the contested decision should in principle constitute appropriate and sufficient compensation for the non-material harm to the applicant arising from the illegality found by the General Court. However, in certain specific circumstances, such as those found to exist in paragraphs 26 to 29 of the judgment of 7 February 1990, Culin v Commission (C‑343/87, EU:C:1990:49), the feeling of injustice and the anxiety that might be caused by the fact that an individual is required to undergo pre-litigation and litigation proceedings in order to secure recognition of that individual’s rights may constitute psychological harm distinct from the illegality already compensated by annulment of the contested act (see, to that effect, judgment of 29 April 2015, CC v Parliament, T‑457/13 P, EU:T:2015:240, paragraphs 49 to 52). Accordingly, in the present case, such specific circumstances must be found to exist as regards the Parliament’s refusal to comply with the General Court’s measure of inquiry, since the defendant’s stance prevented the Court from fully carrying out its judicial review and exacerbated the applicant’s feeling of injustice and distress, which constitutes non-material harm that cannot be appropriately and sufficiently compensated by the contested decision being annulled on the basis of the first plea.
116
The claim for damages relating to the irregularities raised under the second plea in law are premature in the light of the fact that, at the present stage of the proceedings, the General Court cannot rule on the arguments advanced in support of that plea because it will be for the AECE, complying with this judgment, to properly hear the applicant and, if necessary, rule again on the request for assistance.
117
As regards the fact that the applicant was not allowed to be assisted by her adviser when she was heard by the APA Special Advisory Committee, the rules applicable at the Parliament do not provide for an option to do so. In any event, as noted in paragraphs 71 to 73 above, hearings by that committee are not inter partes proceedings conducted against the person seeking assistance under Article 24 of the Staff Regulations. Accordingly, although the AECE is not precluded from establishing that a person being heard in an administrative inquiry can be assisted by a colleague, a staff representative or an adviser, the applicant cannot rely on the principle of equality of arms or the principle of good administration to require the appointing authority to establish that option for hearings arranged by the APA Special Advisory Committee. Furthermore, nothing suggests that X was entitled to be assisted by an adviser for her own hearing. The fact that the Parliament’s Jurisconsult was able to participate as an observer in the proceedings of the APA Special Advisory Committee, including at the hearings, is not such as to vitiate the proceedings of that body.
118
As regards the composition of the APA Special Advisory Committee, it has already been held, in relation to the General Advisory Committee, that, even if full parity was not provided for between the members appointed by the administration and those appointed by the staff committee, the fact that the institution’s medical officer is a member of the advisory committee, the fact that the advisory committee ‘[was] to work with complete autonomy, independence and confidentiality’, and the collegial nature of the deliberations were sufficient guarantees as to the impartiality and objectivity of the opinion that the advisory committee compiled and adopted for the benefit of the AECE (judgment of 29 June 2018, HF v Parliament, T‑218/17, under appeal, EU:T:2018:393, paragraph 103; see also, to that effect and by analogy, judgments of 30 May 2002, Onidi v Commission, T‑197/00, EU:T:2002:135, paragraph 132, and of 17 March 2015, AX v ECB, F‑73/13, EU:F:2015:9, paragraph 150).
119
The foregoing also applies mutatis mutandis to the APA Special Advisory Committee. The applicant therefore cannot claim that the medical officer in fact had a decision-making role, and cannot criticise the AECE for being represented on that committee by the chair of the General Advisory Committee.
120
As regards the length of the procedure to handle the request for assistance, the Staff Regulations do not lay down any specific procedure for handling that kind of request, including where such a request relates to alleged infringement of Article 12a of the Staff Regulations, or any specific timescale. The same applies to the Internal APA Rules concerning harassment, although those rules do lay down several stages, entailing the involvement of the APA Special Advisory Committee and of the President of the Parliament. The AECE is therefore bound in that regard to uphold the reasonable time principle (see, to that effect, judgment of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraphs 59 and 62) and the EU institution or body concerned must therefore, when conducting an administrative inquiry and subsequently handling the request for assistance, ensure that each measure is adopted within a reasonable time following the previous measure (judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 101). Furthermore, in order to appraise the reasonableness of the period in which the administrative inquiry was completed and the request for assistance handled, regard must be had to the importance of the case for the person concerned, its complexity and the conduct of the parties (see, to that effect and by analogy, judgment of 10 June 2016, HI v Commission, F‑133/15, EU:F:2016:127, paragraph 113 and the case-law cited).
121
In the present case, the General Court finds that, in general terms, the APA Special Advisory Committee took more than 14 months to complete its inquiry, between the date on which the applicant was heard, that is to say, 28 January 2015, and the date on which it completed its work, that is to say, 7 April 2016. Furthermore, from the time the judgment in CH v Parliament (F‑132/14, EU:F:2015:115) was delivered, that is to say, 6 October 2015, more than seven months elapsed before the President of the Parliament, once he had been made aware of the findings of the APA Special Advisory Committee, adopted the reasoned decision on 18 May 2016. The applicant also had to wait a further nearly 8 months before finally being invited, at her request, to submit observations on that reasoned decision before the AECE, in turn, ruled on the request for assistance.
122
In addition, because the Parliament refused to comply with the General Court’s measure of inquiry, the General Court is unable to determine how the proceedings of the APA Special Advisory Committee were conducted, in particular the number of meetings and hearings held and the extent of the conclusions that the committee had to draw up and adopt on a collegiate basis. In the absence of any tangible evidence, the Court cannot base its decision, in that regard, solely on the statements of the Parliament.
123
Lastly, the Parliament cannot properly rely on its difficulties in designing the procedure to handle a request for assistance from an APA relating to the behaviour of Members of that institution in order to avoid its obligations both under Article 31 of the Charter (see, to that effect, judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 85) and under Articles 12a and 24 of the Staff Regulations (see, by analogy, judgment of 5 February 2016, GV v EEAS, F‑137/14, EU:F:2016:14, paragraph 77) to ensure that the working conditions of its officials and other members of staff respect their health, safety and dignity and, accordingly, to provide them in good time with procedures that ensure that their working conditions meet those requirements. Moreover, given that Article 12a of the Staff Regulations came into force on 1 May 2004 and that the judgment in CH v Parliament (F‑129/12, EU:F:2013:203) was delivered on 12 December 2013, the Parliament cannot reasonably argue that it needed that many years to design and set up a body such as the APA Special Advisory Committee. In addition, that advisory committee was created on 14 April 2014 and only issued its opinion 14 months after the applicant, X and CN were heard.
124
The Court must therefore hold that the handling of the request for assistance lasted a relatively long time with no genuine justification, as the Secretary-General of the European Parliament moreover partially agreed in the decision rejecting the complaint. Accordingly, in the light of the very particular importance such a procedure has for the alleged victim, and of the AECE’s delaying conduct in handling it, the Court must hold that the reasonable time principle has been infringed.
125
In the light of those circumstances, which have caused the applicant non-material harm that, at this stage in the proceedings, has been compensated by the AECE only to the extent of EUR 1500, and of the fact, to which the applicant refers in her observations of 10 July 2018, that the Parliament’s refusal to implement the measure of inquiry ordered by the General Court aggravated that non-material harm, the Court, quantifying ex æquo et bono all the non-material harm suffered by the applicant, finds that EUR 8500 constitutes appropriate compensation for the part of the non-material harm distinct from the illegality found under the first plea in law and not appropriately and fully compensated by annulment of the contested decision.
Costs
126
Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
127
Since the Parliament must be regarded as having been unsuccessful in the essential aspects of the forms of order sought by it, it is appropriate to order it to bear its own costs and to pay those incurred by the applicant.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1.
Annuls the decision of the European Parliament of 20 March 2017, by which the authority empowered to conclude contracts of employment of that institution rejected the request for assistance made by CH on 22 December 2011;
2.
Orders the Parliament to pay CH, in respect of non-material harm suffered, an amount of EUR 8500;
3.
Dismisses the action as to the remainder;
4.
Orders the Parliament to pay the costs.
Pelikánová
Nihoul
Svenningsen
Delivered in open court in Luxembourg on 13 December 2018.
[Signatures]
(
*1
)	Language of the case: French.