JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
7 November 2019 (*)
(Civil service — Accredited parliamentary assistants — Early termination of the contract — Breakdown in the relationship of trust — Rights of defence — Conciliation procedure — Manifest error of assessment — Discrimination on grounds of sex — Maternity leave — Duty to have regard for the welfare of officials)
In Case T‑431/18,
WN, represented by L. Levi and A. Champetier, lawyers,
applicant,
v
European Parliament, represented by Í. Ní Riagáin Düro and M. Windisch, acting as Agents,
defendant,
APPLICATION under Article 270 TFEU for, first, annulment of the Parliament’s decision of 28 September 2017 to terminate the applicant’s contract as an accredited parliamentary assistant and, secondly, compensation for the non-material damage she allegedly suffered as a result of the Parliament’s conduct,
THE GENERAL COURT (Ninth Chamber),
composed of S. Gervasoni (Rapporteur), President, L. Madise and R. da Silva Passos, Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
1        On 16 March 2015, the applicant, WN, was recruited by the European Parliament as an accredited parliamentary assistant to assist a Member of the European Parliament (‘the Member concerned’). Under a contract pursuant to Title VII of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), which is due to expire at the end of the parliamentary term, the applicant was classified in grade 5 in function group I.
2        By a new contract, concluded on 19 January 2016 and terminating the previous contract, the applicant was engaged to perform the same functions, with the same expiry date, and was classified in grade 6 in function group I.
3        By letter dated 1 December 2016, the Head of the Contract Staff and Accredited Parliamentary Assistants Recruitment Unit, acting as the authority empowered to conclude contracts of employment (‘the AECE’), informed the applicant that the Member concerned had sent him a request for early termination of her contract on the ground of loss of trust (‘the request for termination’), forwarded that request to her and invited her to a preliminary interview (‘the preliminary interview’), as provided for in the third subparagraph of Article 20(4) of the implementing measures for Title VII of the CEOS, taken pursuant to Article 125(1) of the CEOS, adopted by a decision of the Bureau of the Parliament of
9 March 2009 and last amended by a decision of the Bureau of the Parliament of
14 April 2014 (‘the implementing measures for Title VII of the CEOS’). That request, dated 15 November 2016, stated that the breakdown in the relationship of trust was linked to the grounds of professional incompetence, unsatisfactory performance of duties and insufficient professionalism and care with work.
4        On 3 December 2016, the applicant replied to the AECE that she was not able to take part in the preliminary interview for medical reasons.
5        By letter dated 6 December 2016, the AECE invited the applicant to submit any comments on the grounds for the request for termination and informed her that she had the possibility to request initiation of the conciliation procedure provided for in the implementing measures for Title VII of the CEOS (‘the conciliation procedure’).
6        On the same day, the applicant informed the AECE that she was pregnant.
7        On 12 January 2017, the applicant was received by the AECE as part of the preliminary interview. During that interview, she requested that the conciliation procedure be initiated.
8        By email dated 26 January 2017, the applicant provided the AECE with her comments on the elements presented to her during the preliminary interview (‘the comments of 26 January 2017’).
9        On 7 February 2017, a conciliation meeting was held between the applicant and the Member concerned.
10      On 17 February 2017, the Member concerned provided the AECE with his remarks on the comments of 26 January 2017.
11      By letter dated 17 March 2017 (‘the conclusions of the conciliation meeting’), the conciliator informed the Director-General of the Directorate-General for Personnel that it was not possible for the applicant and the Member concerned to continue their collaboration and that the conciliation procedure was terminated.
12      By letter dated 19 April 2017, the AECE notified the applicant of its intention to terminate her contract on the basis of Article 139(1)(d) of the CEOS, taking into account the breakdown in the relationship of trust with the Member concerned, and invited the applicant to submit any comments she might have, which she did by email dated 26 April 2017.
13      By letter dated 26 June 2017, the AECE informed the applicant that, in view of her illness attested by several medical certificates and the pregnancy certificate received on 9 January
2017, the procedure was suspended with regard to the request for termination until the end of her maternity leave.
14      By decision of 28 September 2017, the AECE decided to terminate the applicant’s contract (‘the contested decision’). That decision stated in particular: ‘As trust is the basis of the relationship between the Member and his accredited parliamentary assistant, I have decided to terminate your contract in conformity with Article 139(1)(d) of the CEOS, on the grounds that this trust is broken due to unsatisfactory performance of your duties, mainly due to communication difficulties with the colleagues and the non-acceptance of the authority of [the representative of the MEP concerned] in the office: deficient management of [the concerned Member’s] email accounts (activation of automatic out of office message, deleted email with radio recordings), deficient management of [the concerned Member’s] agenda (with a view to certain meetings — extraordinary coordinator’s meeting, confirmation [of] an embassy dinner invitation)’. That decision specified that the contract would end at the end of the notice period, which would begin after the end of the applicant’s maternity leave.
15      By letter dated 8 November 2017, the applicant lodged a prior complaint against the contested decision on the basis of Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), applicable by analogy to accredited parliamentary assistants by virtue of the reference to Title VII of the Staff Regulations in Article 138 of the CEOS.
16      By decision of 4 April 2018 (‘the decision rejecting the complaint’), the Secretary-General of the Parliament rejected the prior complaint. The comments of the Member concerned on 17 February 2017 were annexed to that decision.
Procedure and forms of order sought
17      By application lodged at the Court Registry on 12 July 2018, the applicant brought the present action.
18      Since the parties had not requested a hearing under Article 106(1) of the Rules of Procedure of the General Court, the General Court (Ninth Chamber), considering that it had sufficient information available to it from the material in the file, decided to rule on the action without an oral part of the procedure in accordance with Article 106(3) of the Rules of Procedure.
19      The applicant asks the General Court to:
–        annul the contested decision and, so far as necessary, the decision rejecting the complaint;
–        order the Parliament to pay her the sum of EUR 20 000 as compensation for the non-material damage suffered;
–        order the Parliament to pay the costs.
20      The Parliament contends that the Court should:
–        reject the application as unfounded;
–        order the applicant to pay the costs.
Law
The claim for annulment
21      At the outset, it should be borne in mind that, 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).
22      In the present case, given that the decision rejecting the complaint merely confirms the contested decision, it must be held that the claim for annulment of the decision rejecting the complaint lacks any independent content and that there is therefore no need to rule on that claim specifically. However, when examining the legality of the contested decision, the statement of reasons for the decision rejecting the complaint should be taken into account, as it is deemed 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).
23      The applicant raises five pleas in law in support of her claim for annulment: the first, alleging breach of the rights of the defence, in particular the right to be heard, and breach of the obligation to state reasons; the second, alleging infringement of the provisions relating to the conciliation procedure, in particular Articles 23 and 25 of the implementing measures for Title VII of the CEOS; the third, alleging infringement of Article 1d of the Staff Regulations, of Articles 21 and 23 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (OJ 2006 L 204, p. 23); the fourth, alleging manifest error of assessment; the fifth, alleging breach of the principle of sound administration, of the principle of the protection of legitimate expectations and of the duty of care.
24      The Court considers it appropriate, for the sake of clarity, to change the order of the pleas in law and to examine successively the first plea in law, the second plea in law, the fourth plea in law, the third plea in law and the fifth plea in law.
The first plea, alleging infringement of the rights of the defence, in particular the right to be heard, and infringement of the obligation to state reasons
25      The applicant claims, first, that the request for termination was too concise and did not explain to what extent the trust had been irremediably shattered between the applicant and the Member concerned. Secondly, she states that she did not receive the comments of 17 February 2017 from the Member concerned before 4 April 2018, with the decision rejecting the complaint, and was therefore unable to reply to them, although those comments were taken into account in the contested decision and the decision rejecting the complaint. Thirdly, she claims that the administration paid no attention to her comments of 26 January 2017, so that her right to be heard was infringed. Fourthly, she adds that the reasons given by AECE to justify the termination of her contract have changed during the procedure and that such a change in the reasons is in breach of the duty to state reasons.
26      The Parliament contests the applicant’s arguments.
27      The arguments mentioned in paragraph 25 relate to two complaints, the first relating to the breach of the obligation to state reasons and the second to the breach of the rights of the defence, in particular the right to be heard.
–       The complaint alleging breach of the obligation to state reasons
28      The right to sound administration, in accordance with Article 41(2) of the Charter, includes the obligation of the administration to give reasons for its decisions (judgment of 22 November 2012, M., C‑277/11, EU:C:2012:744, paragraph 83). That obligation has the same scope as that arising from the second paragraph of Article 296 TFEU (judgment of 28 June 2018, EUIPO v Puma, C‑564/16 P, EU:C:2018:509, paragraph 65) and that provided for in the second paragraph of Article 25 of the Staff Regulations, applicable by analogy to accredited parliamentary assistants pursuant to Article 127 of the CEOS.
29      The statement of reasons required by those provisions must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question of whether the statement of reasons for a measure is to be deemed adequate must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 11 December 2007, Sack v Commission, T‑66/05, EU:T:2007:370, paragraph 65 and the case-law cited).
30      As regards the legal rules governing the termination of the contract of accredited parliamentary assistants before the expiry date on the grounds of breakdown of trust, it should be recalled that, under Article 139(1) of the CEOS:
‘Apart from cessation on death, the employment of the accredited parliamentary assistant shall cease:
…
(d)      taking into account the fact that trust is the basis of the working relationship between the Member and his accredited parliamentary assistant, at the end of the period of notice specified in the contract, which shall give the accredited parliamentary assistant or the European Parliament, acting at the request of the Member or Members of the European Parliament whom the accredited parliamentary assistant was taken on to assist, the right to terminate the contract before its expiry. …’
31      In that regard, while it is true that the simple finding that there has been a breakdown in the relationship of trust may be enough to justify the adoption of a decision to dismiss an accredited parliamentary assistant and that, where a dismissal decision is based only on such a finding, the requirement that the grounds for the decision must describe in detail the factual circumstances demonstrating or justifying the breakdown in the relationship of trust cannot be too far-reaching, the fact remains that a simple reference to the breakdown in the relationship of trust, without any details of the factual circumstances demonstrating or justifying that breakdown, is not enough to indicate to the accredited parliamentary assistant whether the decision is well founded and to enable the Union judicature to exercise its review of legality (see, by analogy, judgment of 22 May 2014, CU v EESC, F‑42/13, EU:F:2014:106, paragraph 44).
32      The burden of proof in that respect lies with the administration (judgment of 7 July 2011, Longinidis v Cedefop, T‑283/08 P, EU:T:2011:338, paragraph 39).
33      The applicant claims that the reasons put forward by the AECE to justify the termination of her contract have evolved during the administrative procedure and that, in particular, the reason for the contested decision relating to the refusal to accept the authority of the representative of the Member concerned in the office is new. According to the applicant, the reasons for the contested decision should have remained identical to those mentioned in the request for termination. She considers that such a change in the reasons during the procedure is contrary to the obligation to state reasons.
34      Such an argument must be rejected.
35      It should be noted that the grounds set out in the contested decision, which are essentially cited in paragraph 14 above, are sufficiently clear and precise to enable the applicant to know the reasons for that decision and the General Court to exercise its power of review. In particular, the contested decision is not based solely on the finding of a breakdown in the relationship of trust, but on the contrary indicates, in a sufficiently precise manner, the factual circumstances likely to reveal or justify that breakdown within the meaning of the case-law referred to in paragraph 31 above.
36      While the grounds of the contested decision are not identical to the grounds mentioned in the request for termination, in so far as that request refers, in particular, not only to unsatisfactory performance, but to professional incompetence which is not mentioned in the contested decision, such a circumstance cannot constitute a failure to state reasons on the part of the AECE. It should be pointed out that, while it is for the Member concerned to submit a request for termination of the contract of an accredited parliamentary assistant on the ground of a breakdown in the relationship of trust, only the AECE is competent, in accordance with Article 20(5) of the implementing measures for Title VII of the CEOS, to decide on such termination and determine the grounds for that decision.
37      Consequently, the complaint alleging breach of the duty to state reasons must be dismissed.
–       The complaint alleging breach of the rights of the defence
38      Observance of the right to be heard is a fundamental principle of EU law, of which the right of every person to be heard, enshrined in particular in Article 41 of the Charter, is an integral part (see, to that effect, judgment of 22 November 2012, M., C‑277/11, EU:C:2012:744, paragraph 82 and the case-law cited).
39      The right to be heard guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely (see judgment of 22 November 2012, M., C‑277/11, EU:C:2012:744, paragraph 87 and the case-law cited).
40      The purpose of that right is, inter alia, to enable the person concerned to correct an error or submit such information relating to his personal circumstances as will argue in favour of the adoption or non-adoption of the decision, or in favour of its having a specific content, in order to ensure that the person concerned is in fact protected (judgment of 11 December 2014, Boudjlida, C‑249/13, EU:C:2014:2431, paragraph 37).
41      A decision to dismiss an accredited parliamentary assistant for breakdown in the relationship of trust may not thus be adopted without prior respect for his or her right to be heard (see, to that effect, judgment of 12 December 2013, CH v Parliament, F‑129/12, EU:F:2013:203, paragraph 37; see also, by analogy, judgment of 10 January 2019, RY v Commission, T‑160/17, EU:T:2019:1, paragraph 40).
42      Moreover, the question whether there is an infringement of the right to be heard must be examined in relation, inter alia, to the legal rules governing the matter concerned (see judgment of 9 February 2017, M., C‑560/14, EU:C:2017:101, paragraph 33 and the case-law cited).
43      As regards the legal rules governing the termination of the contract of accredited parliamentary assistants before the expiry date on the ground of breakdown in the relationship of trust, it should be recalled that, under Article 20 of the implementing measures for Title VII of the CEOS:
‘1.      [Accredited parliamentary assistants’] contracts shall be terminated in accordance with Article 139(1) to (3) of the CEOS …
2.      In particular, where an [accredited parliamentary] assistant or the Member or grouping of Members he/she assists wishes to terminate a contract prior to its expiry, in accordance with Article 139(1)(d) … of the CEOS, the assistant or the Member responsible shall forward a written request to this effect to the AECE, setting out the reason(s) for which early termination of the contract is being requested.
3.      When it receives the request for termination, the AECE shall inform the [accredited parliamentary] assistant or the Member responsible of the other party’s intention to end the contract. …
4.      If the request for termination is made by the Member responsible, the AECE shall invite the [accredited parliamentary] assistant to an interview on Parliament’s premises …
…
At the interview, the AECE shall inform the [accredited parliamentary] assistant of the reasons given by the Member responsible in the request for termination and hear any comments the [accredited parliamentary] assistant wishes to make; those comments shall be entered in a record …’
44      Proof that interested party’s right to be heard has been respected must be adduced by the AECE (see, to that effect, judgments of 6 December 2007, Marcuccio v Commission, C‑59/06 P, EU:C:2007:756, paragraph 47, and of 3 June 2015, BP v FRA, T‑658/13 P, EU:T:2015:356, paragraph 54).
45      In the present case, by letter dated 1 December 2016, the AECE informed the applicant that it had received the request for termination and, by that letter, communicated that request, which specified that the termination of the contract was sought on the ground of loss of trust linked to the grounds of professional incompetence, unsatisfactory performance and insufficient professionalism and care with work. On 6 December 2016, the AECE invited the applicant to submit comments on the ground for the request for termination. It is also apparent from the documents in the file, in particular the minutes of the preliminary interview, that the applicant was informed, during that interview, of the reasons given by the Member concerned in the request for termination and that she was given the opportunity to make comments on the deficient management of the email accounts and the agenda. In particular, the applicant was given the opportunity to present her point of view with regard to all the factual circumstances mentioned, in parentheses, in the contested decision in order to clarify the deficient nature of that management. She did submit comments in that respect during the preliminary interview and then in her comments of 26 January 2017. Finally, on 19 April 2017, the AECE notified the applicant of its intention to terminate her contract due to the breakdown of trust with the Member concerned and invited her to submit comments, which she did by email on 26 April 2017.
46      Thus, the applicant was, on several occasions and at each of the stages leading to the contested decision, invited to submit her comments. The AECE therefore fully complied with its obligation to ensure that the applicant’s rights of defence were respected.
47      Moreover, none of the applicant’s arguments allow it to be considered that her rights of defence, in particular her right to be heard, were infringed.
48      In the first place, whereas the applicant claims that the request for termination was too concise, it must be noted that it mentioned several grounds likely to justify the breakdown in the relationship of trust and that those grounds were explained to the applicant during the preliminary interview.
49      In the second place, the applicant claims that she only received the comments of 17 February 2017 from the Member concerned when the complaint was rejected. She states that she was not able to reply to those comments even though they were taken into account in the contested decision and the decision rejecting the complaint.
50      In that regard, it is not disputed that the applicant only became aware of the comments of 17 February 2017 of the Member concerned at the time of the decision to reject the complaint.
51      However, even if the contested decision refers to those comments, the fact remains that the applicant was given sufficient opportunity to submit her comments on the proposed measure against her and on the reasons for such a measure, under the conditions set out in paragraph 45 above. In particular, the AECE did not rely, in the contested decision, on any new information, based on the comments at issue, regarding which the applicant was not heard. Similarly, whereas the AECE did mention those comments in the decision rejecting the complaint and attached them to that decision, it was only in order to respond to the argument developed by the applicant in her prior complaint, according to which the reference to those comments in the contested decision allegedly revealed an infringement of her rights of defence.
52      In the third place, the applicant has no grounds to claim that no attention was paid to her comments of 26 January 2017. Indeed, even if the AECE did not adopt the view developed by the applicant in her comments, it nevertheless took them into account, as shown by the fact that those comments were communicated to the Member concerned and then mentioned in the contested decision and in the decision rejecting the complaint.
53      In the fourth place, the applicant wrongly argues, in an attempt to demonstrate the infringement of her rights of defence, that the grounds put forward by the AECE to justify the termination of her contract have evolved during the course of the proceedings. The fact that the contested decision refers to a failure to respect the authority of the representative of the Member concerned in the office, far from constituting a new allegation on which the applicant was not heard, constitutes a simple clarification by the AECE to explain the breakdown in the relationship of trust due to unsatisfactory performance of duties. That clarification is based on facts, mentioned in the contested decision, all of which were previously brought to the applicant’s attention and on which the latter was given the opportunity to submit comments. As the minutes of the preliminary interview and the comments of 26 January 2017 show, the applicant also expressed her views on several occasions on her relationship with the representative of the Member concerned in the office, taking the view, in particular, that the latter was not very present and that there were, therefore, communication problems.
54      It follows from the above that the complaint alleging infringement of the rights of the defence, in particular the right to be heard, must be dismissed.
55      Consequently, the first plea in law must be rejected.
The second plea, alleging infringement of the provisions relating to the conciliation procedure, in particular Articles 23 and 25 of the implementing measures for Title VII of the CEOS
56      The applicant argues that the conciliation meeting was not conducted properly. First, she states that the subject of the conciliation meeting should have been previously explained to the Member concerned and that the condition relating to the preparation of the parties to the conciliation procedure was not respected. Secondly, she states that, in view of her doubts about the signature appearing on the request for termination, the conciliator should have informed the Member concerned of the allegations made against her in order to dissipate any confusion. Thirdly, she states that her pregnancy was revealed to the Member concerned at the conciliation meeting without her being informed in advance, which ruled out any possibility of dialogue from the outset.
57      The Parliament contests the applicant’s arguments.
58      Under Article 139(3a) of the CEOS:
‘The implementing measures referred to in Article 125(1) shall provide for a conciliation procedure which shall apply before the contract of an accredited parliamentary assistant is terminated, at the request of the Member or Members of the European Parliament whom he was taken on to assist or the parliamentary assistant concerned, pursuant to point (d) of paragraph 1 and to paragraph 3 [of the present article].’
59      Under Article 23(2) of the implementing measures for Title VII of the CEOS:
‘The sole purpose of the conciliation procedure shall be to enable the [accredited parliamentary] assistant and the Member(s) concerned to determine whether there is any scope for them to continue to work together. It shall not be used to examine the validity of the reasons given in the request for termination or to determine who was at fault. It shall not constitute a form of appeal and no appeal may be lodged against the outcome of the procedure.’
60      Under Article 25 of the implementing measures for Title VII of the CEOS:
‘1.      … the conciliator shall … ensure that both the [accredited parliamentary] assistant and the Member responsible can put forward their arguments. He or she shall moderate the discussion in a constructive manner, fostering dialogue between the parties and raising any matter which he or she regards as relevant.
2.      If the conciliator establishes that the parties cannot continue to work together, he or she shall close the conciliation procedure immediately.’
61      As a preliminary remark, it should be pointed out that the applicant can in principle validly rely on the failure to comply with the provisions of Articles 23 and 25 of the implementing measures for Title VII of the CEOS in support of her criticism of the contested decision. Admittedly, the purpose of the conciliation procedure is not to examine the merits of the grounds given in the request for termination. However, that procedure is expressly provided for by the provisions of the CEOS and, even if it does not constitute a legal remedy and no legal remedy is available to it, it constitutes a guarantee for the accredited parliamentary assistant which could, where appropriate, prevent the adoption of a dismissal decision. In those circumstances, the defects in that procedure may be invoked against such a decision.
62      In the present case, it should be noted that the AECE informed the applicant of the possibility of initiating the conciliation procedure provided for in Article 139(3a) of the CEOS, to which the applicant replied positively during the preliminary interview. In addition, a conciliation meeting was indeed held on 7 February 2017 in the presence of the applicant and the Member concerned. Finally, in the conclusions of the conciliation meeting, the conciliator stated that she had found it impossible for the parties to continue their collaboration and that she was terminating the conciliation procedure, in accordance with the provisions of Article 25 of the implementing measures for Title VII of the CEOS.
63      In that regard, none of the applicant’s arguments can demonstrate that the Parliament did not comply with the provisions of Articles 23 and 25 of the implementing measures for Title VII of the CEOS.
64      First, the applicant submits that the purpose of the conciliation meeting should have been previously explained to the Member concerned and that the condition relating to the preparation of the parties to the conciliation procedure was not complied with. Since the Member concerned was not informed of the purpose of the meeting, the conciliation was deprived of any useful effect.
65      However, the implementing measures for Title VII of the CEOS relied on by the applicant do not contain any provision relating to the conditions or modalities according to which the parties must prepare for the conciliation procedure, so that the argument that the condition concerning the preparation of the parties was infringed must be rejected. Moreover, it appears from the email sent on 2 February 2017 to the Member concerned and to the applicant that, contrary to the latter’s contention, the parties were duly informed of the purpose of the conciliation meeting. That email did expressly refer to Article 25 of the implementing measures for Title VII of the CEOS and was accompanied, in addition, by the text of those implementing measures in three languages.
66      The applicant claims, secondly, that she had doubts about the signature on the request for termination, which did not correspond to that of the Member concerned, and that she was not sure that the latter had initiated the procedure for terminating her contract. She considers that, under those circumstances, it would have been necessary for the conciliator to inform the Member concerned of the accusations made against her in order to dissipate any confusion.
67      However, it follows from the provisions of Article 25(1) of the implementing measures for Title VII of the CEOS that it is for the parties themselves to put forward the arguments they consider relevant during the conciliation procedure. While this article provides that the conciliator shall moderate the discussion in a constructive manner, fostering dialogue between the parties and raising any matter that he or she considers important, this does not imply any obligation on the conciliator to assume the role of the parties to address certain arguments ex officio.
68      Furthermore, it is by no means established that the applicant was prevented, during the conciliation procedure, from raising the question of the signature on the request for termination or any other argument. On the contrary, it appears from the conclusions of the conciliation meeting, which the applicant has not contested, that the latter did indeed argue, during that procedure, that it was possible that the request for termination did not come from the Member concerned, with regard to which the latter replied that he was indeed the author of the request to terminate the contract and assumed responsibility for it.
69      Thirdly, the applicant states that her pregnancy was revealed without her having been previously informed, which prevented any possibility of dialogue from the outset. Indeed, it is claimed, the Member concerned reacted to this announcement in a very negative way, threatening her, and that she suffered a high level of stress.
70      However, the fact that the conciliator referred to the applicant’s pregnancy at the conciliation meeting without informing the applicant of her intention to mention this fact does not constitute an infringement of the provisions of Article 25 of the implementing measures for Title VII of the CEOS. In so doing, the conciliator confined herself to addressing a subject which she considered important in accordance with the provisions in question, which leave her a discretion in that respect and do not provide for prior notification of the parties. In addition, several elements could be used to argue in favour of addressing that issue, in particular the fact that the applicant’s pregnancy had, under Article 139(1)(d) of the CEOS, an impact on the triggering of the notice period laid down in the contract and the concern to moderate the discussion in a context where the applicant had, by email of 6 December 2016 to the AECE, invoked the need to avoid situations of extreme stress in view of her pregnancy. The applicant herself indicated, by email dated 10 February 2017 to the AECE and to the conciliator, that she understood that it was necessary to provide that information, even though she would have liked to have been informed before the meeting in order to be able to prepare for the reaction of the Member concerned. While the reference to her pregnancy did lead to a negative reaction on the part of the Member concerned, that fact, which the Parliament has not called into question, cannot constitute an infringement of Article 25 of the implementing measures for Title VII of the CEOS, which lay down the framework for the conciliator’s mission and not the attitude of the parties during the conciliation procedure.
71      The second plea must therefore be dismissed.
The fourth plea, alleging manifest error of assessment
72      The applicant claims that the contested decision is vitiated by a manifest error of assessment, since all the allegations made against her are incorrect.
73      As regards the communication difficulties, the applicant considers that in fact she had no communication problems with the Member concerned. The communication difficulties, which the contested decision allegedly mention as the main reason for terminating her contract, were not invoked in the request for termination, even though the ground of ‘poor communication skills’ was included as a possible choice in the model request for termination. Additional tensions allegedly emerged after the conciliation meeting, due to the revelation of her pregnancy and the transmission of her comments of 26 January 2017. The applicant thus considers that the contested decision refers to communication problems which were only created as a result of the bad running of the conciliation meeting and an unacceptable attitude of the Member concerned as a result of her pregnancy.
74      As regards the management of email accounts, the applicant states that she had erroneously deleted an email relating to the recording of a weekly radio programme, believing that it was spam, but that she was able to obtain timely communication of that recording. In addition, she states that she was right, and in concertation with her colleagues, not to have activated the out of office automatic message of October 2016. Her irreproachable performance is, it is claimed, also evidenced by her email exchanges with her colleagues.
75      As regards the management of the agenda, the applicant considers that the extraordinary coordinators’ meeting in September 2016 constitutes an isolated error, the consequences of which she managed with professionalism. Such an error could not justify a loss of trust, since the Member concerned had requested that she be promoted in January 2016. She states that she made no error with regard to the invitation to an embassy dinner, which occurred, moreover, while she was unable to work. She adds that she did not make any mistake either with regard to the informal meeting mentioned in the contested decision, which was scheduled for 1 December 2016.
76      The Parliament contests the applicant’s arguments.
77      In that regard, it should be recalled that, on the one hand, while it is not incumbent on the AECE to substitute its assessment for that of the parliamentarian concerned as to the reality of the breakdown in the relationship of trust, the AECE must nevertheless ensure that the reason given is based on facts that plausibly justify that assessment (see judgment of 7 March 2019, L v Parliament, T‑59/17, EU:T:2019:140, paragraph 29 and the case-law cited).
78      On the other hand, where an institution which decides to terminate the contract of an accredited parliamentary assistant refers, in particular, to a loss of trust as the basis for the termination decision, the Court is required to check if that ground is plausible. In doing so, the Court does not substitute its own appraisal for that of the competent authority, which considers that the loss of trust has been established, but must confine itself to checking whether the ground underlying the decision as stated by the institution is vitiated by a manifest error of assessment (see judgment of 7 March 2019, L v Parliament, T‑59/17, EU:T:2019:140, paragraph 30 and the case-law cited).
79      However, the applicant’s argument does not support the view that the contested decision is vitiated by a manifest error of assessment.
80      First, the applicant’s contention that her communication difficulties were created only because of the bad running of the conciliation meeting is not supported by the documents in the file. On the one hand, the communication difficulties mentioned in the contested decision concern the applicant’s relations with her colleagues and not with the Member concerned. On the other hand, those difficulties are mentioned in the minutes of the preliminary interview and in the comments of 26 January 2017. In those two documents prior to the conciliation meeting, it appears that the applicant herself makes the link between the difficulties of communication with one of her colleagues and the facts likely to justify the breakdown in the relationship of trust.
81      Moreover, the failure to mention, in the request for termination, that the applicant had poor communication skills does not call into question the plausibility of the reason for the contested decision. That decision only finds that there were
objective ‘communication difficulties with the colleagues’; such a finding must be distinguished from a more general assessment, which the contested decision did not make, of the applicant’s communication skills.
82      Secondly, with regard to the deficient management of email accounts, the applicant acknowledged, in her comments of 26 January 2017, that she had made an error by deleting an email with a radio recording, although she points out that this error was subsequently corrected. Moreover, while she claims that she did not activate the automatic out of office message in the interest of the Member concerned and after discussion with her colleagues, it must be noted that she herself states, in the application, that that issue was not discussed with the representative of the Member concerned in the office and that the latter contacted her on this subject during the period in question. Under those circumstances, that fact may have contributed, among other things, to a breakdown in the relationship of trust. Finally, contrary to what the applicant claims, the two emails from one of the interlocutors of the office, annexed to the application, one of which includes a thank you message to the applicant, are not sufficient to call into question the plausibility of the facts on which the breakdown in the relationship of trust between the Member concerned and the applicant is based.
83      Thirdly, as regards the deficient management of the agenda, it should be noted that the applicant claims, without being challenged by the Parliament, that she did not make any error with regard to the informal meeting mentioned in the contested decision. Consequently, that element cannot support a finding of deficient management of the agenda. However, the applicant does admit that she made an error in the management of the extraordinary coordinators’ meeting, which, according to her own statements, caused difficulties in the functioning of the office. In addition, the applicant indicated to one of her colleagues, with regard to the invitation to an embassy dinner, that she ‘should have’ declined that invitation, so that an error in the management of the agenda cannot be excluded on that point.
84      Moreover, the fact that, in January 2016, the applicant was promoted, at the request of the Member concerned, to function group I, grade 6 does not call into question the plausibility of the reason for the contested decision. Indeed, the favourable assessment made by the latter in the context of that promotion concerned the year 2015, whereas the facts referred to in the contested decision concern the year 2016.
85      In those circumstances, the applicant’s statements are not such as to render implausible the reason for the contested decision.
86      The fourth plea in law must therefore be dismissed.
The third plea, alleging infringement of Article 1d of the Staff Regulations, Articles 21 and 23 of the Charter and Directive 2006/54/EC
87      The applicant claims that she was discriminated against on the grounds of her pregnancy and, consequently, her sex. She states that her pregnancy was unexpectedly announced at the conciliation meeting and that the Member concerned refused any dialogue for that reason. He allegedly indicated that the applicant’s pregnancy infringed his fundamental rights as a parliamentarian and that she would never work in Brussels (Belgium) again. By considering her pregnancy as grounds for dismissal during the conciliation meeting, he allegedly treated her differently because she was a woman. Consequently, the announcement of her pregnancy prevented any conciliation and had an impact on the contested decision. The applicant points out that she provided prima facie evidence of discrimination and that, consequently, it is for the Parliament to demonstrate that the contested decision is not the result of direct discrimination or a breach of the principle of equal treatment.
88      The Parliament contests the applicant’s arguments.
89      It should be recalled that the principle of equal treatment of men and women in matters of employment and, consequently, the absence of any direct or indirect discrimination on grounds of sex, as enshrined in Articles 21 and 23 of the Charter, form part of the fundamental rights whose observance is ensured by the Courts of the European Union (see, to that effect, judgment of 21 July 2016, HB v Commission, F‑125/15, EU:F:2016:164, paragraph 74).
90      The prohibition of any discrimination on grounds of sex is also incorporated, in the application of the Staff Regulations, in the first subparagraph of Article 1d(1) of the Staff Regulations, applicable by analogy to accredited parliamentary assistants pursuant to Article 128 of the CEOS.
91      When the AECE receives a request to terminate the contract of an accredited parliamentary assistant on the ground of a breakdown in the relationship of trust, it must ensure, where appropriate, that the request does not constitute discrimination on grounds of sex, in breach of the fundamental rights of the person concerned (see, to that effect, judgment of 10 January 2019, RY v Commission, T‑160/17, EU:T:2019:1, paragraph 38 and the case-law cited). If so, the AECE is required to reject such a request.
92      Under Article 1d(5) of the Staff Regulations, where persons covered by the Staff Regulations, who consider themselves wronged because the principle of equal treatment has not been applied to them, establish facts from which it may be presumed that there has been direct or indirect discrimination, the onus shall be on the institution to prove that there has been no breach of the principle of equal treatment.
93      Neither mere allegations nor the simple fact of pregnancy of a staff member who considers herself aggrieved by the failure to comply with the principle of non-discrimination with regard to her shall give rise to the presumption that discrimination on grounds of sex exists (see, to that effect, judgment of 26 October 2017, HB v Commission, T‑706/16 P, not published, EU:T:2017:758, paragraph 51).
94      In the present case, it should be noted, in the first place, in so far as the applicant invokes Directive 2006/54, that it is addressed to the Member States and not to the institutions of the Union. Accordingly, the provisions of that directive cannot be treated, as such, as imposing obligations on the Union institutions in the exercise of their decision-making powers (see, to that effect, judgment of 9 September 2003, Rinke, C‑25/02, EU:C:2003:435, point 24).
95      However, that consideration does not in itself totally preclude a directive being relied upon in relations between institutions and their officials or servants, particularly in so far as the provisions of a directive may be indirectly applicable to an institution if they constitute the expression of a general principle of EU law that it must then apply as such
(see, to that effect, judgment of 7 February 2019, RK v Council, T‑11/17, EU:T:2019:65, paragraph 68; see, also, judgment of 30 April 2009, Aayhan and Others v Parliament, F‑65/07, EU:F:2009:43, paragraphs 112 and 113 and the case-law cited).
96      In the present case, without it being necessary to rule on the applicability of Directive 2006/54, it is sufficient to note that the provisions of Articles 14(1)(c) and 19(1) of that directive, invoked by the applicant, contain provisions similar to the principles and provisions recalled in paragraphs 89 and 92 above and which are applicable to the Parliament in its relations with accredited parliamentary assistants.
97      In the second place, the applicant’s allegations concerning the conduct of the conciliation meeting do not give grounds for a presumption that the contested decision is discriminatory.
98      It should be noted that the request for termination was clearly unrelated to the applicant’s pregnancy. In that regard, it is common ground that the Member concerned was unaware of that fact before the conciliation meeting. In particular, it is not disputed that the applicant did not and could not have knowledge of the applicant’s pregnancy when he made the request for termination, received by the AECE on 16 November 2016.
99      Moreover, while the Parliament does not question the existence of inappropriate remarks by the Member concerned at the conciliation meeting, that fact alone does not make it possible to presume that there is a link between the reference to the applicant’s pregnancy and the contested decision. The Parliament contests the applicant’s assertion that the Member concerned considered her pregnancy to be grounds for dismissal during that meeting. Moreover, the applicant’s allegations concerning the conduct of the conciliation meeting, in particular with regard to the alleged refusal of the Member concerned to engage in dialogue on account of the applicant’s pregnancy, are not supported by the conclusions of the conciliation meeting, since they indicate that the Member concerned was greatly surprised when he learned of her pregnancy but that he wished to maintain his dismissal request linked to the performance of her tasks, which he considered unsatisfactory. In those circumstances, it cannot be assumed that the applicant’s pregnancy was the reason for the impossibility for the parties to continue their collaboration, as established by the conciliator at the end of the conciliation procedure.
100    Finally, the applicant’s argument appears all the less sufficient to suggest the existence of discrimination on the ground of sex since her plea alleging disregard for the rights of the defence and the obligation to state reasons, as well as that alleging a manifest error of assessment, have been rejected (see, to that effect, judgment of 21 July 2016, HB v Commission, F‑125/15, EU:F:2016:164, paragraph 79).
101    The applicant thus fails to establish a presumption of direct or indirect discrimination and it is not for the Parliament to prove that there is no discrimination.
102    The third plea in law must therefore be rejected.
The fifth plea in law, alleging infringement of the principle of sound administration, the principle of the protection of legitimate expectations and the duty of care
103    The applicant claims that the Parliament breached its duty of care, which was exacerbated in view of her fragile state of health, by disclosing her pregnancy without prior notice, by forwarding her comments of 26 January 2017 to the Member concerned and by adopting the contested decision when she was on maternity leave. On the latter point, the applicant states that the letter from the AECE of 26 June 2017 had created a legitimate expectation that she would not be confronted with any decision before the end of her maternity leave.
104    The Parliament contests the applicant’s arguments.
105    According to settled case-law, while not mentioned in the Staff Regulations, the administration’s duty to have regard for the welfare of staff reflects the balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between a public authority and its staff. A particular consequence of that duty and of the principle of sound administration is that when the authority takes a decision concerning the situation of a member of staff, it should take into consideration all the factors which may affect its decision and that, in so doing, it should take into account not only the interests of the service but also those of the official concerned (see, to that effect and by analogy, judgment of 23 October 1986, Schwiering v Court of Auditors, 321/85, EU:C:1986:408, paragraph 18, and the case-law cited, and order of 14 December 2006, Meister v OHIM, C‑12/05 P, EU:C:2006:779, paragraph 54).
106    Furthermore, the obligations arising for the administration from the duty to have regard for the welfare of officials are substantially enhanced where the situation of an official whose physical or mental health is shown to be affected is involved (see, to that effect and by analogy, judgment of 18 November 2014, McCoy v Committee of the Regions, F‑156/12, EU:F:2014:247, paragraph 106 and the case-law cited).
107    In the present case, it appears from the documents on file that the AECE took due account of the applicant’s interests when it adopted the contested decision and that, in so doing, it complied with its obligations, even if enhanced, arising from the duty to have regard for the welfare of staff. In particular, it appears from the terms of the contested decision that the Parliament took into account the applicant’s pregnancy in accordance with the provisions of the CEOS, by providing that the notice period would not begin to run until the end of the maternity leave.
108    None of the factors put forward by the applicant is such as to call in question that conclusion.
109    First, as stated in paragraph 70 above, several elements, including the desire to moderate the discussion, could be used to argue in favour of addressing the issue of the applicant’s pregnancy at the conciliation meeting. In those circumstances, the fact that the conciliator did not inform the applicant before raising that issue does not reveal a failure to take her interests into account.
110    Secondly, the applicant submits that the AECE communicated her comments of 26 January 2017 to the Member concerned, even though they contained sensitive information and identified other staff members. She states that she found herself in a delicate situation with regard to her colleagues, who were exposed due to her comments.
111    However, the AECE could reasonably believe that the transmission of those comments — which had not been identified as confidential — could enable the Member concerned to better understand the applicant’s explanations and thus contribute, in the applicant’s own interest, to promoting dialogue between the parties. Moreover, the existence of a delicate situation in which the applicant allegedly found herself is not substantiated and cannot, therefore, be regarded as established.
112    Thirdly, the fact that the contested decision was adopted while the applicant was on maternity leave does not constitute a breach of the duty to have regard for the welfare of officials.
113    In that regard, it should be recalled that, according to Article 139(1)(d) of the CEOS:
‘…
the period of notice shall not, however, commence to run during pregnancy if confirmed by a medical certificate, maternity leave or sick leave, provided such sick leave does not exceed three months. It shall, moreover, be suspended during pregnancy if confirmed by a medical certificate, maternity or sick leave subject to these limits’.
114    However, it is common ground that the contested decision, which expressly states that the notice period will begin on the day following the end of the maternity leave, complies with the provisions of Article 139(1)(d) of the CEOS, which do not prohibit the adoption of a decision to terminate the contract of an accredited parliamentary assistant during the period of her maternity leave, but regulate the notice requirement to which such termination is subject. Moreover, the fact that the contested decision was notified after the birth, but before the end of the applicant’s maternity leave, does not demonstrate a failure to balance the interests involved, in so far as such a notification date could, as the Parliament maintains, contribute in this case to clarifying the applicant’s legal situation before she actually resumed work.
115    Moreover, while it is true that, by letter of 26 June 2017, the AECE informed the applicant that, in the light of the medical certificates transmitted, it had decided to suspend ‘the proceedings’ concerning the request for termination until the end of the maternity leave, that letter alone does not support the conclusion that the contested decision infringed the principle of the protection of legitimate expectations.
116    It should be recalled that three conditions must be satisfied in order to claim entitlement of the protection of legitimate expectations. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the administrative authorities. Secondly, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Thirdly, the assurances given must comply with the applicable rules (see judgment of 28 April 2017, Azoulay and Others v Parliament, T‑580/16, EU:T:2017:291, paragraph 44 and the case-law cited).
117    However, the first of these conditions is not met in the present case. Indeed, the applicant was aware of the clear terms of Article 139(1)(d) of the CEOS, which the AECE had referred to during the preliminary interview and which she had herself quoted in an email of 19 April 2017 addressed to the AECE. In that context, while the letter of 26 June 2017 refers ambiguously or clumsily to a suspension of ‘the proceedings’ and not to a suspension of the notice period as provided for in the CEOS, it cannot be interpreted, by reason of its very imprecise nature, as constituting a precise, unconditional and consistent assurance that a decision to dismiss would not be taken before the end of the applicant’s maternity leave.
118    The fifth plea in law must therefore be rejected.
119    It follows from the foregoing that the claims for annulment must be rejected.
The claim for damages
120    The applicant claims that the wrongful conduct of the Parliament has caused her harm. She claims that the evolution of the grounds during the administrative procedure, implemented by the administration with the aim of finding a way to terminate her contract by circumventing her arguments, constitutes a fault. In addition, it is claimed, the behaviour of the Member concerned during the conciliation meeting, namely his violent attitude and threats, constitute discrimination on grounds of sex. In addition, the Parliament allegedly breached its duty of care by informing the Member concerned of her pregnancy without prior warning and by forwarding to him her comments of 26 January 2017. Finally, it is claimed, the Parliament created legitimate expectations in the applicant, who it later deceived. Those elements, it is claimed, created a high level of stress for the applicant, who was pregnant.
121    The Parliament contests the applicant’s arguments.
122    It is settled case-law that, in the context of a claim for damages made by an official or servant, the institution can be held liable in damages only if a number of conditions are satisfied: the illegality of the allegedly wrongful act committed by the institution, actual harm suffered, and the existence of a causal link between the act and the damage alleged to have been suffered. The three conditions for liability are cumulative, which means that where one of them is not met, the institution cannot be held liable (judgments of 16 December 1987, Delauche v Commission, 111/86, EU:C:1987:562, paragraph 30, and of 11 June 2019, De Esteban Alonso v Commission, T‑138/18, under appeal, EU:T:2019:398, paragraph 45).
123    Where the Union acts as an employer, it is required to make good damage caused to its staff by any illegality committed in its capacity as an employer (see, to that effect, judgments of 16 December 2010, Commission v Petrilli, T‑143/09 P, EU:T:2010:531, paragraph 46, and of 11 June 2019, De Esteban Alonso v Commission, T‑138/18, under appeal, EU:T:2019:398, paragraph 46).
124    In the present case, as stated in paragraphs 36 and 53 above, the applicant has no grounds to complain that the administration’s grounds for terminating her contract evolved during the administrative procedure. Moreover, there is no evidence to support the applicant’s assertion that the evolution of those grounds is intended to find a way to terminate her contract by circumventing her arguments.
125    Furthermore, as stated in paragraphs 94 to 101, 107 to 111 and 115 to 117 above respectively, the applicant is not justified in claiming that the Parliament infringed the principle of non-discrimination, the duty of care and the principle of the protection of legitimate expectations.
126    Under those circumstances, no fault of the administration has been established.
127    Moreover, as the Parliament rightly points out, the applicant merely argues in very general terms, without substantiating her allegations that the administration’s conduct caused a very high level of stress while she was pregnant. Consequently, such allegations are, in any event, not sufficient to demonstrate the reality of real and certain damage, nor the link between the alleged conduct of the administration and the alleged harm.
128    The claims for damages must therefore be dismissed.
Costs
129    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. However, according to Article 135 of the Rules of Procedure, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his own costs, or even that he is not to be ordered to pay any costs. On the other hand, the Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if he has made the opposite party incur costs which the Court holds to be unreasonable or vexatious.
130    In the present case, the Court considers that the conduct of the Parliament may have contributed to a certain extent to the emergence of the present dispute. In this respect, it should be noted, in particular, that the terms of the letter of 26 June 2017 were ambiguous as regards the conduct of the administrative procedure, which may have led the applicant to bring this action.
131    In those circumstances, even if the applicant has been unsuccessful, proper account of all the circumstances of the present case will be taken by deciding that each party should bear its own costs.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1.      Dismisses the action.
2.      Orders each party to bear its own costs.
Gervasoni
Madise
da Silva Passos
Delivered in open court in Luxembourg on 7 November 2019.
E. Coulon
S. Gervasoni
Registrar
President
*      Language of the case: English.