62022TJ0793_RES
Case T‑793/22
TU
v
European Parliament
Judgment of the General Court (Fourth Chamber, Extended Composition) of 11 September 2024
(Civil service – Accredited parliamentary assistants – Termination of service – Fixed-term contract – Non-renewal – Status of informant – Articles 22a to 22c of the Staff Regulations – Protective measures – Confidentiality – Non-material damage)
Judicial proceedings – Production of evidence – Unlawfully obtained evidence – Whether admissible – Conditions – Evidence decisive to ensuring judicial review
(Rules of Procedure of the General Court, Art. 85)
(see paragraphs 64, 69)
Judicial proceedings – Measures of organisation of procedure – Written questions put to the parties – Freedom of the General Court in its absolute discretion to assess the facts and evidence
(Rules of Procedure of the General Court, Arts 88 and 89(1))
(see paragraphs 73, 74)
Officials – Rights and obligations – Allegation of facts giving rise to a presumption of the existence of illegal activity or a serious failure to comply – Consequences for the administration – Obligation to protect the member of staff who reported the facts – Scope – No need to adopt a decision confirming the recognition of the status of informant
(Staff Regulations of Officials, Art. 22a(1) to (3); Conditions of Employment of Other Servants, Art. 127)
(see paragraphs 78-84)
Officials – Rights and obligations – Allegation of facts giving rise to a presumption of the existence of illegal activity or a serious failure to comply – Consequences for the administration – Obligation to inform the member of staff who reported the facts – Scope – No acknowledgement of receipt or provision of information as to the action taken – Infringement – Allegation also communicated to the Anti-Fraud Office (OLAF) – No effect
(Staff Regulations of Officials, Arts 22a and 22b; Conditions of Employment of Other Servants, Art. 127; European Parliament and Council Regulation No 883/2013, Art. 5(3))
(see paragraphs 91-102)
Officials – Rights and obligations – Allegation of facts giving rise to a presumption of the existence of illegal activity or a serious failure to comply – Consequences for the administration – Obligation to protect the member of staff who reported the facts – Scope – Adoption of sufficient protective measures where there is credible evidence of damage – Discretion – Limits – Burden of proof
(Staff Regulations of Officials, Art. 22a(3), Arts 22b and 22c; Conditions of Employment of Other Servants, Art. 127)
(see paragraphs 105, 112-117, 128, 136, 138, 140-144, 158)
Acts of the institutions – Directives – Directive 2019/1937 on the protection of persons who report breaches of EU law – Direct imposition of obligations on the institutions of the European Union in their relations with their staff – Not included – Possibility of relying on certain provisions – Scope
(Art. 288, third para., TFEU; European Parliament and Council Directive 2019/1937, Art. 21(5))
(see paragraphs 106-111)
Officials – Rights and obligations – Allegation of facts giving rise to a presumption of the existence of illegal activity or a serious failure to comply – Consequences for the administration – Obligation to protect the member of staff who reported the facts – Scope – Renewal of the contract of an accredited parliamentary assistant to a parliamentary grouping in the absence of a request from that grouping – Exclusion – No breach of the principle of equal treatment and the duty to have regard to the welfare of staff
(Conditions of Employment of Other Servants, Art. 127 and Art. 130(1); European Parliament Decision adopting the Statute for Members of the European Parliament, Art. 21(1); Bureau of the European Parliament Decision concerning the implementing measures for the Statute for Members of the European Parliament, Art. 18(3))
(see paragraphs 129-135, 193, 196-200, 202)
Officials – Rights and obligations – Allegation of facts giving rise to a presumption of the existence of illegal activity or a serious failure to comply – Consequences for the administration – Obligation to protect the member of staff who reported the facts – Scope – Duty of confidentiality – Disclosure to a third party of the member of staff’s status of informant and the latter’s discharge from his duties on account of his or her allegation – Infringement
(Staff Regulations of Officials, Arts 22a and 22b; Conditions of Employment of Other Servants, Art. 127)
(see paragraphs 173, 176-180)
Résumé
Upholding in part an action brought by TU, a former accredited parliamentary assistant (‘APA’) of the European Parliament, the General Court, sitting in extended composition, rules on the novel question of the protection to be provided by that institution to an APA on the basis of his status as a whistle-blower.
The applicant was recruited as an APA for a grouping of Members to assist one Member, for a period from August 2019 to February 2022. In July 2021, he submitted a request for assistance and protection, pursuant to Article 24 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), related to incidences of harassment which he had suffered at the hands of the Member in question. In his email, the applicant also stated that he wanted to protect the financial interests of the European Union by providing, in that request, information about financial irregularities allegedly committed by the same Member. In addition, he reported those irregularities to the European Anti-Fraud Office (OLAF).
In the same month, the Parliament adopted a temporary protective measure to place the applicant under the responsibility of the chair of a delegation, who was also a member of the grouping to which the Member in question belonged. Later, following alleged retaliation on the part of the leadership of that delegation, the applicant was discharged from his duties with the delegation, at his request, until the end of his contract.
The applicant also requested that he be transferred to any other post within the Parliament and that the Parliament consider extending his contract so as to allow him to cooperate with that institution and with OLAF in the ongoing investigations, whilst being fully protected. Lastly, he submitted several requests for renewal of his contract.
Following the refusal of those requests, the applicant brought an action before the Court seeking, first, the annulment of the Parliament’s decision not to renew his APA contract and of the implied decision refusing to recognise his status as an informant and to adopt other protective measures in addition to the measure discharging him from his duties and, second, compensation for the damage suffered.
Findings of the Court
First of all, the Court observes that the Parliament was not required to adopt a decision recognising that the applicant had the status of informant. The protection provided for in Article 22a(3) of the Staff Regulations is granted, without any formalities, to officials who have provided information about facts which give rise to a presumption of the existence of illegal activity, simply by virtue of having provided that information.
That finding is, however, without prejudice to the need for the institution to respect the rights arising from the status of the person concerned as an informant.
In that regard, first, regardless of OLAF’s obligations to provide information to the applicant, it falls to the Parliament, the competent authority for guaranteeing the protection of its members of staff who have reported serious irregularities pursuant to Articles 22a and 22b of the Staff Regulations, since facts as referred to in Article 22a of the Staff Regulations have been brought before it, in the first place, to acknowledge receipt of that report and, in the second place, to inform the member of staff of the action taken on his or her reports, in accordance with its duty to have regard to the welfare of staff and pursuant to the internal rules on the implementation of Article 22c of the Staff Regulations.
Second, with regard to the burden of proving that the protective measures are adequate, in a situation such as the present one, in which the applicant provides credible evidence that he or she suffered prejudicial effects further to the adoption of the transfer measure and his or her complaints about the alleged retaliation by the leadership of the delegation are, moreover, still being examined, it is for the Parliament to demonstrate that it has fulfilled its duty to protect the informant by adopting adequate measures to that end.
In a situation in which an institution is required to implement the provisions laid down in Articles 22a to 22c of the Staff Regulations, which seek in particular to ensure that informants are protected against any retaliatory actions, that institution cannot provide for less protective measures than those which have been specifically adopted, in that regard, by the EU legislature in relation to the protection of informants by the Member States. (
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)
Third, with regard to the scope of the institution’s obligation to protect informants, the Court observes that it follows from Article 22a(3) of the Staff Regulations that the institution must take all the necessary measures to ensure that informants receive balanced and effective protection against any form of retaliation, including threats of retaliation and attempted retaliation.
It is true that, in the absence of an explicit request from one or more Members of the grouping, it is impossible for the Parliament to renew an APA contract. The initiative of renewing an APA contract rests solely with one or more Members, who cannot be required to work, or to continue to work, with APAs whom they have not freely chosen. An APA maintains with the Member or Members whom he or she assists a working relationship characterised by the existence of a bond of trust.
Similarly, the duty to have regard to the welfare of staff cannot require the Parliament, in breach of the rule contained in Article 21 of the Statute of Members, under which Members may freely choose their personal staff, to renew an APA’s contract, even where the latter has acquired the status of informant.
However, that finding has no bearing on the Parliament’s duty to take all the necessary measures to ensure the applicant receives balanced and effective protection against any form of retaliation.
The Court considers, in that regard, that, by simply informing the applicant that the discharge measure was the only conceivable protective measure, the Parliament failed to establish that it had taken all the necessary measures to ensure that the applicant did not suffer prejudicial effects on the part of the institution on account of his status of informant, pursuant to Article 22a(3) of the Staff Regulations. Given the applicant’s status of informant, and pursuant to Article 22a(3) of the Staff Regulations, the Parliament should have supported him by attempting to help him find a solution, in addition to discharging him from his duties.
Furthermore, by simply informing the applicant that there was no conceivable measure other than discharging him from his duties in order to protect him based on his status of informant and that the renewal of his contract was not an option in that regard, the Parliament did not show that it had provided the applicant with the advice and assistance with which it was required to provide him.
Lastly, by informing the chair of the delegation that the applicant was discharged from his duties in connection with the chair on account both of the applicant’s request for assistance as well as his status of informant, without the applicant having authorised the disclosure of that status, the Parliament breached its duty of confidentiality and protection of the applicant’s identity as an informant.
The Court therefore finds that the applicant suffered non-material damage which cannot be repaired simply by annulling the implied decision in so far as, by that decision, the Parliament refused, in response to his request, to grant him a further protective measure in addition to discharging him from his duties. In those circumstances, the Court annuls that decision, upholds in part the claims for compensation in the amount of EUR 10000, and dismisses the action as to the remainder.
(
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)	Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (OJ 2019 L 305, p. 17).