Provisional text

JUDGMENT OF THE GENERAL COURT (Fourth Chamber, Extended Composition)

3 February 2021 ( ) ( )

(Institutional law – European Parliament – Psychological harassment – Decisions of the President of the Parliament finding that two accredited parliamentary assistants suffered harassment and imposing on a Member of Parliament the penalty of forfeiture of entitlement to the daily subsistence allowance for a period of 12 days – Rules 11 and 166 of the Rules of Procedure of the Parliament – Internal appeal – Decision of the Bureau of the Parliament confirming the penalty – Rule 167 of the Rules of Procedure of the Parliament – Action for annulment – Time limit for bringing an action – Admissibility – Rights of the defence – Non-contractual liability)

In Case T‑17/19,

Giulia Moi, residing in [personal data] (Italy), represented by M. Pisano and P. Setzu, lawyers,

applicant,

v

European Parliament, represented by T. Lazian, S. Seyr and M. Windisch, acting as Agents,

defendant,

APPLICATION (i) principally, under Article 263 TFEU for the annulment of various measures adopted in the context of a procedure for establishing and punishing harassment initiated against the applicant and, in the alternative, for a declaration that the penalty imposed on her was excessive and/or disproportionate and for its replacement by the penalty laid down in Rule 166(a) of the Rules of Procedure of the Parliament, and (ii) under Article 268 TFEU seeking an order requiring the Parliament to award the applicant compensation and the President of the Parliament to communicate that information publicly in plenary sitting of the Parliament.

THE GENERAL COURT (Fourth Chamber, Extended Composition),

composed of S. Gervasoni, President, L. Madise, P. Nihoul (Rapporteur), R. Frendo and J. Martín y Pérez de Nanclares, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written part of the procedure and further to the hearing on 10 July 2020,

gives the following

Judgment

I. Background to the dispute

1 The applicant, Ms Giulia Moi, was a Member of the European Parliament from 2014 to 2019.

2 On 22 November 2017, two of her accredited parliamentary assistants (‘the two APAs’) submitted a request for assistance under Article 24 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) claiming problems with their working environment.

3 On 27 and 28 November 2017, the two APAs lodged a harassment complaint with the committee dealing with harassment complaints between accredited parliamentary assistants and Members of Parliament and its prevention at the workplace (‘the Advisory Committee’), established by Article 1(1) of the Internal Rules on harassment and its prevention at the workplace and on harassment complaints involving accredited parliamentary assistants and Members of the European Parliament of 14 April 2014, as amended on 6 July 2015 (‘the Rules of 14 April 2014, as amended on 6 July 2015’).

4 By letter of 23 February 2018, the Advisory Committee informed the applicant of the content of the complaints made by the two APAs and invited her to submit comments on their claims.

5 On 27 February 2018, the two APAs were heard by the Advisory Committee.

6 On 9 March 2018, the applicant submitted her comments on the complaints made by the two APAs.

7 On 20 March 2018, the applicant was heard by the Advisory Committee.

8 On 28 March 2018, the applicant sent additional documents to the Advisory Committee.

9 By letter of 22 May 2018, the President of the Advisory Committee sent the President of the Parliament an opinion in which the Advisory Committee found that harassment had occurred within the meaning of Article 12a(3) of the Staff Regulations.

10 By letter of 3 July 2018, notified the following day, the President of the Parliament informed the applicant of the findings in the Advisory Committee’s opinion concerning the existence of harassment and invited her to submit comments on those findings by 20 July 2018.

11 By letter of 18 July 2018, received at the Parliament on 20 July 2018, the applicant replied to the President’s invitation, denying that harassment had occurred.

12 In a letter of 2 October 2018, the President of the Parliament, after considering the opinion of the Advisory Committee and the applicant’s comments, informed her that ‘[he shared] the opinion of the Advisory Committee finding that the situation claimed by the two complainants [amounted to] psychological harassment within the meaning of the Staff Regulations’. During the proceedings before the Court, the Parliament described that letter as the ‘harassment decision of the President’. That description will be used in the remainder of the present judgment to refer to the document in question.

13 The same day, the President of the Parliament sent the applicant another document, entitled ‘Decision of the President of 2 October 2018’, in which he stated, first, that the applicant’s conduct ‘[ran] counter to the principles and values referred to in the Rules [of Procedure of the Parliament], in particular Article 2 [TEU] and Articles 1 (respect for human dignity) and 31 (the right to working conditions which respect workers’ health, safety and dignity) of the Charter of Fundamental Rights of the European Union’, and, secondly, that he had ‘decided to impose on [the applicant], as a penalty for her conduct towards the [two APAs], characterised as psychological harassment, the forfeiture of entitlement to the daily subsistence allowance for a period of 12 days’. During the proceedings, the Parliament described that letter as the ‘penalty decision of the President’. That description will be used in the remainder of the present judgment to refer to that document.

14 The two documents mentioned in paragraphs 12 and 13 above were notified to the applicant together.

15 On 16 October 2018, the applicant – as she was entitled to do under Rule 167 of the Rules of Procedure of the Parliament, as applicable (‘the Rules of Procedure’) – lodged an internal appeal with the Bureau of the Parliament against the penalty decision of the President. In that appeal, she denied that her conduct towards the two APAs could be characterised as harassment and, in the alternative, requested that a lower penalty be imposed on her.

16 By decision of 12 November 2018, delivered on 14 November 2018 in plenary sitting and notified that same day, the Bureau of the Parliament confirmed the penalty decision of the President (‘the decision of the Bureau of the Parliament’).

II. Procedure and forms of order sought by the parties

17 By application of 11 January 2019, the applicant brought the present action.

18 On a proposal from the Judge-Rapporteur, the Court decided to open the oral part of the procedure and, by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure of the General Court, requested the Parliament to lodge certain documents and put a number of written questions to the parties, to be answered in writing. The parties complied with those requests within the prescribed period.

19 Acting on a proposal from the Fourth Chamber, the Court decided, pursuant to Article 28 of its Rules of Procedure, to refer the case to a chamber sitting in extended composition.

20 The parties presented oral argument and answered the questions put to them by the Court at the hearing on 10 July 2020.

21 By her action, the applicant claims that the Court should:

– principally, annul the decision of the Bureau of the Parliament, the penalty decision of the President and ‘any measure prior, related or subsequent [to] the penalty concerned’;

– in the alternative, ‘hold that the disciplinary penalty imposed is excessive [or] disproportionate and, consequently, replace it by the penalty laid down in Rule 166[(3)](a) of the Rules of Procedure’;

– in any event, order the Parliament to award her compensation to be determined on an equitable basis by the Court, in the form of the payment of EUR 50 000 or such greater or lesser amount as may be deemed appropriate by the Court, and order the President of the Parliament to communicate that information publicly in plenary sitting;

– order the Parliament to pay the costs.

22 The applicant also makes a number of requests for measures of organisation of procedure and measures of inquiry as well as requests for the submission of evidence and offers of evidence.

23 The Parliament contends that the Court should:

– dismiss the application for annulment of the penalty decision of the President as inadmissible;

– dismiss the application for annulment of any other measure preparatory, related or subsequent to the penalty as inadmissible;

– refuse the requests seeking to have the Court issue directions to the Parliament and take the place of the Parliament as inadmissible;

– refuse the requests for the submission of evidence and offers of evidence as well as the requests for measures of organisation of procedure and measures of inquiry as inadmissible;

– reject the claims for damages as inadmissible;

– dismiss the action as inadmissible in part and, in any event, as unfounded as to the remainder;

– order the applicant to pay all the costs.

III. Law

A. Applicable law

24 As a preliminary point, it should be noted that the provisions applicable to the present case are Rules 11, 166 and 167 of the Rules of Procedure and the Rules of 14 April 2014, as amended on 6 July 2015.

25 As the Parliament acknowledged in its replies to the questions put to it by the Court, the President of the Parliament mistakenly referred in his penalty decision to the decision of the Bureau of the Parliament of 2 July 2018 on the functioning of the Advisory Committee responsible for examining harassment complaints involving Members of Parliament and on the relevant procedures.

26 In accordance with Article 15(1) of the latter decision, that decision applies only to requests for assistance made after 1 September 2018. In the present case, as is apparent from paragraph 2 above, the two APAs submitted requests for assistance on 22 November 2017.

B. Application for annulment

1. Admissibility of the application for annulment in the light of Article 76 of the Rules of Procedure of the General Court

27 Without expressly raising a plea of inadmissibility, the Parliament observes that, contrary to the requirements of Article 76 of the Rules of Procedure of the General Court, the applicant failed to structure her application for annulment around clearly identified pleas in law.

28 In that regard, it must be recalled that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 thereof, and Article 76(d) of the Rules of Procedure of the General Court, the application initiating proceedings must, inter alia, contain the subject matter of the dispute and a summary of those pleas in law. Those matters must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary, without further supporting information. In order to guarantee legal certainty and the sound administration of justice, it is necessary, for an action to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly, in the application itself (see judgment of 12 December 2018, SH v Commission, T‑283/17, EU:T:2018:917, paragraph 86 and the case-law cited).

29 In the present case, it is true that the application does not set out the pleas submitted in turn under different headings.

30 However, as the applicant points out in her reply, that approach does not prevent the Court from identifying, in support of the application for annulment, three pleas in law, which are moreover disputed by the Parliament. Those pleas allege (i) infringement of Article 41(2) of the Charter of Fundamental Rights, of the principle of respect for the rights of the defence, of the duty of impartiality and of the ‘right to participate and to be heard’, (ii) failure to state reasons, and (iii) misuse of powers.

31 It must therefore be held that the application meets the requirements laid down in Article 76(d) of the Rules of Procedure of the General Court.

2. Subject matter of the application for annulment

32 As is apparent from the description of the subject matter of the application and the form of order sought, the applicant seeks annulment of the decision of the Bureau of the Parliament.

33 On the first page of the application, where the subject matter of the action is set out, the applicant also seeks annulment of the penalty decision of the President.

34 In addition, it should be noted that, even though the harassment decision of the President is not expressly mentioned in the description of the subject matter of the application or in the form of order sought as one of the measures in respect of which annulment is claimed, it is apparent from the summary of the pleas in law that the applicant clearly intended to challenge that decision.

35 The Parliament does not, moreover, dispute that point.

36 Since the Parliament was able to identify that claim and to respond to it in detail, the Court finds that the application for annulment also covers the harassment decision of the President, even though that decision does not formally appear in the description of the subject matter of the action set out in the application (see, to that effect, judgment of 2 March 1967, Simet and Feram v High Authority, 25/65 and 26/65, EU:C:1967:4, p. 43).

37 The fact that the application for annulment also covers the harassment decision of the President is borne out by the claim made by the applicant in the description of the subject matter of the action and in paragraph 17 of the application concerning the annulment of any other measure prior, related or subsequent to the penalty.

38 It does not follow from the documents before the Court that, by means of that claim, the applicant was referring to decisions other than the harassment decision of the President.

39 Consequently, the application for annulment must be considered to relate to the harassment decision of the President, the penalty decision of the President and the decision of the Bureau of the Parliament (‘the contested decisions’).

3. Admissibility of the application for annulment in so far as it relates to the penalty decision of the President

40 The Parliament considers that, in so far as it is directed against the penalty decision of the President, the application for annulment must be dismissed as inadmissible for two reasons, one of which is put forward as the Parliament’s main argument while the other is submitted in the alternative.

41 As its main argument, the Parliament submits that the penalty decision of the President was replaced by the decision of the Bureau of the Parliament, which constitutes the institution’s definitive view on the matter and against which the action should therefore be directed.

42 It must be borne in mind in that regard that the decision of the Bureau of the Parliament was adopted following an internal appeal lodged by the applicant under Rule 167 of the Rules of Procedure against the penalty decision of the President.

43 According to the case-law, the existence of an administrative remedy against a decision, irrespective of whether it is obligatory or optional, has no effect on the right of the person concerned to institute, at any moment, legal proceedings against that decision (judgment of 21 February 2018, LL v Parliament, C‑326/16 P, EU:C:2018:83, paragraph 34).

44 Therefore, it cannot be found, in particular with regard to the right to an effective legal remedy enshrined in Article 47 of the Charter of Fundamental Rights, that instituting a complaint procedure as provided for in Rule 167 of the Rules of Procedure prejudices the right to bring legal proceedings against the decision at issue (see, by analogy, judgment of 21 February 2018, LL v Parliament, C‑326/16 P, EU:C:2018:83, paragraph 35).

45 Moreover, it should be noted that, according to settled case-law, an administrative complaint and its rejection, whether express or implied, constitute an integral part of a complex procedure. In those circumstances, the legal proceedings, even if formally directed against the rejection of the complaint, have the effect of bringing before the EU Courts the act adversely affecting the person concerned, against which the complaint was submitted (judgments of 21 February 2018, LL v Parliament, C‑326/16 P, EU:C:2018:83, paragraph 36, and of 19 September 2018, Selimovic v Parliament, T‑61/17, not published, EU:T:2018:565, paragraph 45).

46 Furthermore, according to equally settled case-law, the action is admissible whether it is directed against the initial decision alone, the decision rejecting the complaint or both, provided that the complaint and the action were lodged within the periods prescribed by those provisions (see judgment of 21 February 2018, LL v Parliament, C‑326/16 P, EU:C:2018:83, paragraph 37 and the case-law cited).

47 It follows from the foregoing that the adoption of the decision of the Bureau of the Parliament does not prevent the applicant from bringing an action against the penalty decision of the President even though that decision was the subject of an appeal under Rule 167 of the Rules of Procedure.

48 In the alternative, the Parliament submits that the action, in so far as it is directed against the penalty decision of the President, is inadmissible because it was brought after the expiry of the two-month period laid down in the sixth paragraph of Article 263 TFEU.

49 In that regard, it should be recalled that the object of an administrative remedy, whether optional or not, is to enable and encourage the amicable settlement of differences arising between the person concerned and the administration in order to avoid litigation (judgments of 21 February 2018, LL v Parliament, C‑326/16 P, EU:C:2018:83, paragraph 25, and of 19 September 2018, Selimovic v Parliament, T‑61/17, not published, EU:T:2018:565, paragraph 43).

50 In the present case, the procedure referred to in Rule 167 of the Rules of Procedure is an optional pre-litigation remedy. That remedy would be deprived of effectiveness if the Member of Parliament concerned, after availing him or herself of that option for the purposes of an amicable settlement, had to institute legal proceedings against the decision at issue in the administrative procedure before the conclusion of that procedure in order to observe the time limit for initiating proceedings (judgment of 19 September 2018, Selimovic v Parliament, T‑61/17, not published, EU:T:2018:565, paragraph 43).

51 Furthermore, it must be observed that Rule 167 of the Rules of Procedure provides that, if the Bureau of the Parliament fails to take a decision on the internal appeal within the four-week time limit laid down for that purpose, the penalty is deemed to be null and void, so that legal proceedings would not be necessary in that case (judgment of 19 September 2018, Selimovic v Parliament, T‑61/17, not published, EU:T:2018:565, paragraph 44).

52 Consequently, it must be held that, in the present action, the applicant was entitled to seek annulment of the penalty decision of the President no later than the date of expiry of the period for bringing proceedings calculated from the date of notification of the decision of the Bureau of the Parliament (see, to that effect, judgment of 19 September 2018, Selimovic v Parliament, T‑61/17, not published, EU:T:2018:565, paragraph 48; also see, to that effect and by analogy, judgment of 21 February 2018, LL v Parliament, C‑326/16 P, EU:C:2018:83, paragraph 41).

53 In the present case, the decision of the Bureau of the Parliament was adopted on 12 November 2018 and notified to the applicant on 14 November 2018. The action for annulment was brought on 11 January 2019.

54 It follows that the action, in so far as it concerns the penalty decision of the President, cannot be regarded as out of time.

4. Admissibility of the application for annulment in so far as it relates to the harassment decision of the President

55 In addition, the Parliament submits that, in so far as it concerns the harassment decision of the President, the application for annulment was lodged after the expiry of the periods laid down in the sixth paragraph of Article 263 TFEU.

56 It should be noted that, as the Parliament pointed out, the harassment decision of the President was adopted on 2 October 2018, whereas the present action was brought on 11 January 2019, that is to say, more than two months after notification of that decision.

57 At the hearing, the Parliament stated that the procedure followed in respect of harassment complaints made against Members of Parliament was structured in such a way as to take account, first, of the particular situation of those members and, secondly, of the desire expressed by the Bureau of the Parliament to be involved only in the penalty aspect of the complaint, without participating in the part of the procedure to determine whether harassment had occurred.

58 That is why, according to the Parliament, a two-part procedure was put in place, with each of those parties being subject to separate arrangements as regards remedies, since, unlike the harassment decision of the President, the structure established by the Parliament enables the person against whom allegations have been made to lodge an internal appeal with the Bureau of the Parliament against the penalty decision of the President.

59 The Parliament states that that structure is based on Rules 166 and 167 of the Rules of Procedure and on Article 12 of the Rules of 14 April 2014, as amended on 6 July 2015.

60 In that regard, it should be noted that Rule 166 of the Rules of Procedure, entitled ‘Penalties’, provides, in the first subparagraph of paragraph 1:

‘In serious cases of disorder or disruption of Parliament in violation of the principles laid down in Rule 11, the President shall adopt a reasoned decision imposing the appropriate penalty.’

61 Rule 167 of the Rules of Procedure, entitled ‘Internal appeal procedures’, states:

‘The Member concerned may lodge an internal appeal with the Bureau within two weeks of notification of the penalty imposed by the President by virtue of Rule 166(1) to (4). Such an appeal shall have the effect of suspending the application of that penalty. The Bureau may, not later than four weeks after the lodging of the appeal or, if it does not meet in that period, at its next meeting, annul, confirm or modify the penalty imposed, without prejudice to the external rights of appeal open to the Member concerned. If the Bureau fails to take a decision within the time limit laid down, the penalty shall be deemed to be null and void.’

62 Article 12 of the Rules of 14 April 2014, as amended on 6 July 2015, is worded as follows:

‘1. In the light of the opinion delivered by the [Advisory] Committee, the President shall take a reasoned decision as to whether or not it has been proven that harassment has occurred. He shall indicate in writing to the Committee the measures he intends to take. He shall inform the parties concerned accordingly. Before taking any decision establishing that harassment has occurred, the President shall hear the Member concerned.

…

3. Where appropriate, the President of Parliament shall impose a penalty on the Member concerned in accordance with Rules 11 and 166 of the … Rules of Procedure. The hearing referred to in paragraph 1 shall be deemed to be a hearing within the meaning of Rule 166(1) of … [the] Rules of Procedure.’

63 Contrary to the Parliament’s submissions, it does not follow from those provisions that harassment procedures involving Members of Parliament must necessarily give rise to separate decisions on the existence of harassment and on the penalty and that those decisions must be subject to different arrangements as regards remedies.

64 Rule 166 of the Rules of Procedure and Article 12 of the Rules of 14 April 2014, as amended on 6 July 2015, provide only that a reasoned decision is to be adopted in the event of misconduct and that a penalty may be imposed; they do not preclude those matters, a priori inseparable, from being dealt with in the same decision.

65 Similarly, Rule 167 of the Rules of Procedure merely specifies the starting point of the period for lodging a complaint, stating that that period runs from the imposition of the penalty; it does not preclude the decision containing the penalty from also establishing that harassment occurred.

66 Furthermore, the distinction the Parliament draws between the decision on the penalty and the decision establishing harassment, even if it were supported by the provisions set out in paragraphs 60 to 62 above, leads to the asymmetrical treatment of those decisions as regards the possibilities of appeal, when those decisions are inextricably linked.

67 In that regard, it should be recalled that, as the Bureau of the Parliament pointed out in paragraph 4 of its decision, remedies must be ‘effective’.

68 That requirement is enshrined in Article 47 of the Charter of Fundamental Rights, according to which everyone whose rights and freedoms guaranteed by the law of the European Union are violated has the right to an effective remedy.

69 As the Parliament states, if no internal appeal is brought by the Member of Parliament against the penalty decision of the President, it is open to the EU judicature, before which a direct action has been brought against that decision, to examine, in the same legal proceedings, the relationship between the penalty, the facts and the procedure.

70 In the light of the obligation to ensure that remedies are effective, there is no reason why judicial review of the penalty decision of the President should be different where the Member of Parliament has brought an internal appeal against that decision before bringing legal action.

71 If a remedy is to be effective, it must be possible for the EU judicature’s review to cover both the decision on the conduct and the decision on the penalty, as is the case where no internal appeal has been brought against the penalty decision of the President, since a penalty is lawful only if, first, once the conduct has been demonstrated, the finding concerning that conduct is based on sufficient evidence, secondly, the legal characterisation of that conduct is appropriate, and thirdly, the penalty is proportionate to the seriousness of the conduct, all of which having led to the adoption of decisions at the end of a procedure not vitiated by error.

72 The President of the Parliament himself acknowledged that the finding of harassment, the penalty and the conduct of the procedure were inextricably linked. He pointed out, in paragraph 7 of his penalty decision, that ‘the conclusions and grounds of the decision on the finding of psychological harassment form[ed] the basis for this decision on the imposition of a penalty’. He also described the relationship between the different aspects of the situation, stating, in paragraph 11 of that decision, that ‘in view of the seriousness of [the applicant’s] conduct, which she [had] engaged in repeatedly and consistently over a long period of time, and which show[ed] a flagrant disregard for the values and principles laid down in Rule 11(3) of the Rules of Procedure’, ‘the penalty imposed … [was] appropriate and proportionate to the infringement committed’.

73 In the present case, it is understandable that the applicant, with the intention of defending herself, made use of the possibility afforded by the Rules of Procedure of bringing an internal appeal against the penalty decision of the President.

74 That fact cannot however have the effect – in the light of the need to ensure that actions before the EU Courts are effective – of depriving the applicant of a review by a court in the course of which all aspects of the situation at issue will be examined, taking account of the inextricable links between them.

75 Furthermore, if the applicant had challenged the harassment decision of the President directly before the EU judicature, the Bureau of the Parliament would have had to choose between two options, neither of which would have been satisfactory in terms of its administrative and judicial consequences. Under the first option, the Bureau could have decided on the penalty without awaiting the Court’s ruling, in which case the applicant could also have brought an action against that decision. In all likelihood, that would have resulted in the Court joining the two legal actions and therefore deferring its review of legality in respect of the harassment. Under the second option, the Bureau could have waited for the Court to deliver its ruling, in which case it would have risked being unable to exercise its power to review the penalty, since, first, under Rule 167 of the Rules of Procedure, unless the Bureau of the Parliament takes a decision within four weeks after the lodging of the appeal, the disputed penalty adopted by the President is deemed to be null and void, and, secondly, it does not follow from the provisions of the Rules of Procedure that the Bureau has the possibility of staying the procedure before it pending the outcome of court proceedings.

76 In those circumstances, the right to an effective remedy and the principle of the sound administration of justice, taken together, require here that the question of the lawfulness of decisions constituting one and the same dispute be brought before the Court at the same time, namely, in the present case, the decision finding that harassment had occurred and the decision, which is dependent on it, ruling on the penalty which such conduct should attract.

77 Thus, since the harassment decision of the President was inextricably linked to the penalty decision, the time limit for bringing an action for annulment against both the former and the latter decision did not start to run until the date of notification of the decision of the Bureau of the Parliament adopted following the internal appeal under Rule 167 of the Rules of Procedure (see paragraph 52 above).

78 Consequently, it must be held that the application for annulment of the harassment decision of the President cannot be regarded as being out of time and is therefore admissible.

5. Substance

79 By the first plea, the applicant claims that, during the procedure which resulted in her conduct being characterised as harassment and in the imposition of a penalty, she did not have access to the documents in the investigation file, to the complaints submitted by the two APAs or to the statements they made before the Advisory Committee, despite requesting such access.

80 The Parliament disputes those arguments.

(a) Admissibility of the plea

81 By a written question, the Court asked the parties whether the rule ‘of correspondence’ between the complaint and the application was applicable in the present dispute and what the effect of that application would be, since that rule requires that a plea or head of claim submitted before the EU Courts must already have been raised in the pre-litigation procedure or must be closely linked to criticism made in the same context, otherwise it will be inadmissible.

82 The Parliament replied that, if that rule were to apply in the present case, the plea alleging breach of the rights of the defence would have to be declared inadmissible because it was not raised by the applicant in her internal appeal before the Bureau of the Parliament.

83 The applicant disputes the position taken by the Parliament.

84 In that regard, it should be recalled that the action is based on Article 263 TFEU, not Article 270 TFEU.

85 The rule of correspondence was developed in the context of proceedings brought on the basis of the latter provision and in connection with the mandatory prior complaint procedure established by the Staff Regulations. To date, neither the Court of Justice nor the General Court has extended that rule to cover actions brought on the basis of Article 263 TFEU which were preceded by an administrative stage.

86 In so far as is necessary, it should be recalled that, within the framework of Article 270 TFEU, the rule of correspondence takes account of the specific context governed by that provision. In accordance with that provision, the Court of Justice of the European Union has jurisdiction in any dispute between the European Union and its servants within the limits and under the conditions laid down in the Staff Regulations and the Conditions of Employment of Other Servants of the European Union, which make the admissibility of actions before the Court of Justice of the European Union expressly subject to the submission of a prior complaint and to an express or implied rejection by the appointing authority.

87 Furthermore, it should be pointed out in that regard that neither the Rules of Procedure nor any other provision applicable in the present case makes the admissibility of an action brought before the EU Courts by a Member of Parliament subject to the submission of a prior complaint within the Parliament. In the absence of such a provision, and in the light of the right to an effective remedy provided for in Article 47 of the Charter of Fundamental Rights, the applicant must be afforded the opportunity to raise any plea before the EU Courts even if she did not do so before the Bureau of the Parliament.

88 There is even less justification for applying the rule of correspondence in the present case since, as explained by the Parliament, the internal appeal procedure provided for in Rule 167 of the Rules of Procedure relates only to the penalty. In those circumstances, the pursuit of an amicable settlement cannot cast doubt on the finding of harassment, which may be challenged only before the EU Courts, and thus does not cover the full scope of the dispute between the member concerned and the Parliament.

89 In any event, the fact that the applicant did not put forward the argument relating to the rights of the defence earlier had no bearing on the examination of the internal appeal since, as it stated in paragraphs 4 and 5 of its decision, the Bureau of the Parliament, when adopting its position, verified that the procedure followed had not been vitiated by any manifest defect capable of affecting the lawfulness of the decision to impose a penalty (see, to that effect and by analogy, judgment of 21 November 2000, Carrasco Benítez v Commission, T‑214/99, EU:T:2000:272, paragraphs 37 and 38).

90 Accordingly, it must be held that, for the reasons set out above, the rule of correspondence is not applicable to a dispute such as that brought before the Court by the applicant and, consequently, that the first plea cannot be declared inadmissible on the ground that breach of the principle of respect for the rights of the defence was not alleged before the Bureau of the Parliament in the internal appeal under Rule 167 of the Rules of Procedure.

(b) Substance of the plea

91 Concerning the substance of the plea, it should be recalled that Article 41(2) of the Charter of Fundamental Rights provides that the right to good administration includes, inter alia, the right of every person to be heard before any individual measure which would affect him or her adversely is taken, the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy, and the obligation on the administration to give reasons for its decisions.

92 In its judgment of 4 April 2019, OZ v EIB (C‑558/17 P, EU:C:2019:289, paragraph 53), the Court of Justice recalled that the right to be heard provided for in that provision guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely.

93 Applying Article 41(2) of the Charter of Fundamental Rights, the Court held, in a case where an action for annulment had been brought by a victim of harassment against the decision rejecting her complaint, that the investigation panel, before forwarding its recommendations to the President of the institution and, in any event, the President of the institution, before adopting a decision that would adversely affect the appellant in that case, were required to respect her right to be heard as a complainant (see, to that effect, judgment of 4 April 2019, OZ v EIB, C‑558/17 P, EU:C:2019:289, paragraph 56).

94 The Court also considered that, as a complainant, the appellant was entitled, in order to be able effectively to submit her observations, to disclosure of a summary, at the very least, of the statements made by the person accused of harassment and the various witnesses heard, as those statements had been used by the investigation panel in its report in order to make recommendations to the President of the institution concerned on which the latter had based the decision at issue, and such a summary should have been disclosed while respecting, if necessary, legitimate expectations as regards confidentiality (see, to that effect, judgment of 4 April 2019, OZ v EIB, C‑558/17 P, EU:C:2019:289, paragraph 57).

95 That position was confirmed in the judgment of 25 June 2020, HF v Parliament (C‑570/18 P, EU:C:2020:490, paragraphs 57 to 62), in which, applying the same provision, the Court decided, in a different procedure resulting in the rejection of a harassment complaint, that, as a complainant, the victim of harassment was entitled to disclosure of a summary, at the very least, of both the opinion of the Advisory Committee and the records of the witness hearings, since the authority responsible for deciding whether or not harassment had occurred had based the contested decision on those documents.

96 In paragraph 66 of the judgment of 25 June 2020, HF v Parliament (C‑570/18 P, EU:C:2020:490), the Court stated that, in order to ensure that witness statements remain confidential and that the objectives of such confidentiality are respected, while ensuring that the appellant is properly heard before a decision adversely affecting him or her is adopted, certain techniques may be used, such as anonymisation, or even disclosure of the substance of the witness statements in the form of a summary, or the redaction of some of the content of those statements.

97 In the cases giving rise to the judgments of 4 April 2019, OZ v EIB (C‑558/17 P, EU:C:2019:289, paragraph 53), and of 25 June 2020, HF v Parliament (C‑570/18 P, EU:C:2020:490), the person claiming the right to be properly heard, as stated in paragraphs 93 and 95 above, was a complainant who considered that she had been harassed.

98 That is a different situation to the one at issue here, where the argument concerning inadequate access to the file is not put forward by the complainant, but by the person accused of harassment who received a penalty for that reason.

99 In those circumstances, it is the general principle of respect for the rights of the defence, also relied on by the applicant in her first plea, which applies to its fullest extent.

100 According to the case-law, that general principle must be complied with in all procedures initiated against a person which are liable to culminate in a measure adversely affecting that person (see, to that effect, judgment of 16 May 2012, Skareby v Commission, F‑42/10, EU:F:2012:64, paragraph 46 and the case-law cited). That is particularly so where the procedure may lead to a penalty (judgment of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission, C‑550/07 P, EU:C:2010:512, paragraph 92). That fundamental principle of EU law must be guaranteed even in the absence of any rules governing the procedure in question (judgments of 10 July 1986, Belgium v Commission, 234/84, EU:C:1986:302, paragraph 27; of 9 November 2006, Commission v De Bry, C‑344/05 P, EU:C:2006:710, paragraph 37; and of 27 October 2016, ECB v Cerafogli, T‑787/14 P, EU:T:2016:633, paragraph 72).

101 It is settled case-law that the rights of the defence include the right to be heard and the right to have access to the file and are among the fundamental rights forming an integral part of the EU legal order and enshrined in the Charter of Fundamental Rights (see judgment of 10 September 2013, G. and R., C‑383/13 PPU, EU:C:2013:533, paragraph 32 and the case-law cited).

102 That principle applies in the present case as the procedure initiated against the applicant is liable to culminate, and indeed culminated, in the imposition of a penalty on a Member of Parliament for harassment.

103 In a procedure intended to determine whether harassment has occurred, the general principle of respect for the rights of the defence means that, with due regard to any requirements of confidentiality, the person against whom allegations have been made must, prior to the adoption of the decision adversely affecting him or her, receive all documents in the file, both inculpatory and exculpatory, concerning that harassment and be able to state his or her views on them.

104 Disclosure of all the documents in the file is, moreover, expressly provided for in Article 3(1) of Annex IX to the Staff Regulations in respect of the persons to whom those regulations apply and who are the subject of a disciplinary investigation following an investigation by the European Anti-Fraud Office (OLAF).

105 In the present case, it is apparent from the file and from the hearing that, during the procedure which resulted in the finding of harassment and the imposition of the penalty, while the applicant was informed of the content of the complaints of the two APAs by letter of 23 February 2018, she had no access to either the statements made by them on 27 February 2018 before the Advisory Committee or the documents in the file, particularly emails and text messages, even though those different items of information were taken into consideration in order to conclude that harassment had occurred and to impose a penalty on the applicant.

106 At the hearing, the Parliament maintained that it complied with the principle of respect for the rights of the defence but was not required to give the applicant access to the entire file. In any event, it submits, first of all, that at no time did the applicant request access to the file. Next, it claims that disclosure of the emails and text messages which were relied on by the Advisory Committee in adopting its opinion and thereafter by the President of the Parliament in adopting his decision was problematic owing to the confidential nature of those documents. Finally, disclosure of those items of evidence was not necessary because the applicant was aware of their content, having received or sent them herself.

107 As regards the first argument, it must be recalled that, contrary to the Parliament’s submissions, in the context of a harassment procedure, access to the file cannot be made conditional on a request from the person concerned. The onus is on the competent authority conducting the procedure initiated against that person to observe all the necessary safeguards, particularly those relating to the rights of the defence, without waiting to be called upon to do so.

108 Concerning the second argument, it must be observed that, in its arguments, the Parliament referred in general terms to the need to protect complainants to justify why access to the documents concerned had been restricted in the procedure in question, without identifying the information which, because of its particularities, required a degree of confidentiality or the reasons warranting such confidential treatment.

109 In any event, it should be recalled that confidentiality may be ensured by means of various techniques such as anonymisation, disclosure of the substance of the documents in the file in the form of a summary or the redaction of some of their content (judgment of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraph 66).

110 As regards the third argument, which, moreover, contradicts the second, it should be noted that in order to be able to defend him or herself, the person against whom allegations have been made must have the opportunity to ascertain the detailed content of the documents in the file serving as the basis for those allegations in the decisions concerning him or her.

111 At the hearing, the Parliament argued that it was its own prerogative to identify the evidence to be disclosed to the person accused of harassment, and that the latter was responsible for requesting the documents on which that evidence was based if she considered it necessary.

112 That argument cannot be accepted. In a harassment procedure, it is for the competent authorities to disclose to the person concerned, with due regard to any requirements of confidentiality, not only the evidence on which the allegations of harassment are based, but also the documents supporting those allegations, such as documents, if they exist, enabling those allegations to be refuted, since the person concerned must have the opportunity to decide by him or herself how to prepare and argue his or her defence.

113 Thus, the arguments put forward by the Parliament to the effect that the principle of respect for the rights of the defence does not apply in the present case must be dismissed.

114 Consequently, the Court holds that, in the present case, the general principle of respect for the rights of the defence was breached.

(c) Consequences of breach of the principle of respect for the rights of the defence

115 According to the case-law, a breach of the rights of the defence results in the annulment of the decision taken at the end of a procedure only if, had it not been for such an irregularity, the outcome of the procedure might have been different (judgment of 4 April 2019, OZ v EIB, C‑558/17 P, EU:C:2019:289, paragraph 76).

116 For the Court, that requirement is satisfied where, having not had access to the documents which should have been disclosed in accordance with respect for the rights of the defence, the applicant was not able effectively to submit his or her observations (see, to that effect, judgments of 4 April 2019, OZ v EIB, C‑558/17 P, EU:C:2019:289, paragraphs 77 and 78, and of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraph 73) and was thus deprived of even a slight chance of being better able to defend him or herself (see, to that effect, judgment of 16 January 2019, Commission v United Parcel Service, C‑265/17 P, EU:C:2019:23, paragraph 56).

117 In such a case, failure to disclose documents in the file which the authorities have relied on inevitably affects, in the light of the protection to be afforded to the rights of the defence, the lawfulness of the measures adopted at the end of a procedure liable to affect the applicant adversely (see, to that effect, judgments of 4 April 2019, OZ v EIB, C‑558/17 P, EU:C:2019:289, paragraph 78, and of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraph 73).

118 In the present case, it is apparent from the file and from the hearing that, during the procedure concerning her, the applicant had no access to either the statements made by the two APAs on 27 February 2018 before the Advisory Committee or to the complete file, particularly the full content of the emails and text messages on which the allegations were based, even though that information was taken into consideration in the finding of harassment and the imposition of the penalty.

119 In that regard, it should be borne in mind that the definition of psychological harassment within the meaning of Article 12a(3) of the Staff Regulations, which is the same as that in Article 3(1) of the Rules of 14 April 2014, as amended on 6 July 2015, implies a contextual classification of the actions and behaviour of officials and other members of staff, which is not always straightforward (see, to that effect, judgments of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 99, and of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 75).

120 In those circumstances, it must be held, on the basis of the case-law referred to in paragraphs 115 to 117 above, that, since the applicant did not have access to the full content of the file, she was deprived in the present case of the chance of being better able to defend herself and that that irregularity inevitably affected the content of the decisions taken on the existence of harassment and on the penalty.

121 It is therefore necessary to determine to what extent the breach of the principle of respect for the rights of the defence affected the lawfulness of the contested decisions.

(1) Harassment decision of the President

122 The harassment decision of the President was the first decision to be adopted at the end of the procedure vitiated by the breach of the principle of respect for the rights of the defence established above.

123 Since it was adopted without the President having before him the information and arguments that the applicant could have put forward if, in accordance with that principle, she had been given the opportunity to acquaint herself with the documents in the file on which he intended to rely, that decision must be annulled.

(2) Penalty decision of the President

124 It is clear that the lawfulness of the penalty decision of the President is also affected by the breach of the principle of respect for the rights of the defence established above. That decision is based on the alleged acts of harassment, the finding of which is itself affected by a breach of the principle of respect for the rights of the defence.

125 Consequently, the penalty decision of the President must be annulled for breach of the principle of respect for the rights of the defence.

(3) Decision of the Bureau of the Parliament

126 The Parliament maintains that the decision of its Bureau concerns only the penalty, so that it cannot be affected by the breach of the principle of respect for the rights of the defence, which concerns only the harassment decision of the President.

127 It must be observed that the decision of the Bureau of the Parliament confirms the penalty decision of the President and is also based on the alleged acts of harassment, the finding of which is affected by a breach of the principle of respect for the rights of the defence. The unlawfulness vitiating that finding therefore necessarily results in the decision of the Bureau of the Parliament being unlawful.

128 It is true that, in its decision, the Bureau of the Parliament limited the task it had to carry out in connection with the complaint under Rule 167 of the Rules of Procedure by stating, in paragraph 4, first, that it ‘alone [had] the power to reconsider the penalty itself’ and, secondly, that a review of the ‘merits’ of the harassment decision or the ‘facts’ underlying the decision to impose a penalty did not fall within its remit.

129 The fact remains that, also in paragraph 4 of its decision, the Bureau of the Parliament admitted that it had verified the lawfulness of the procedure which resulted in the adoption of the harassment decision.

130 Thus, the Bureau of the Parliament stated that, ‘to ensure the effectiveness of the appeal, [it considered] it appropriate to carry out a review limited to verifying that the finding of psychological harassment [had been] properly made and that, specifically, the procedure followed was not vitiated by a manifest defect capable of affecting the lawfulness of the decision to impose a penalty’.

131 In the same vein, the Bureau of the Parliament asserted, in paragraph 5 of its decision, that the procedure was not tainted by any defect casting doubt on the lawfulness of the harassment decision or the penalty decision. It stated that, ‘on that basis, the Bureau [was] of the opinion that the finding of psychological harassment made by the President … [had been] properly made and that the procedure followed [had] not been vitiated by a manifest defect capable of affecting the lawfulness of the decision to impose a penalty’.

132 Thus, the Bureau of the Parliament based its decision on an assessment which, for the reasons set out in paragraphs 91 to 114 above, was carried out in disregard of the principle of respect for the rights of the defence.

133 That decision must therefore be annulled for breach of that principle.

(4) Conclusion on the application for annulment

134 In the light of the foregoing considerations, it must be held – without there being any need to examine the other complaints contained in the first plea, the other pleas raised by the applicant, her requests for the submission of evidence and offers of evidence, or her requests for measures of organisation of procedure and measures of inquiry – that the harassment decision of the President, the penalty decision of the President and the decision of the Bureau of the Parliament must be annulled.

C. Application for replacement of the disciplinary penalty imposed by the penalty provided for in Rule 166(4)(a) of the Rules of Procedure

135 In the form of order sought in the application, the applicant requests the General Court, in the alternative, to ‘hold that the disciplinary penalty imposed is excessive and disproportionate’ and to ‘replace it by the penalty laid down in Rule 166(4)(a) of the Rules of Procedure’. The penalty provided for in that provision is a reprimand.

136 Since the application referred to in paragraph 135 above was put forward as an alternative to the application for annulment and the latter application has been upheld, there is no need to adjudicate on the former.

D. Claim for compensation

1. Claim for damages

137 In the application, the applicant requests that the Parliament be ordered to pay her EUR 50 000 or such greater or lesser amount to be determined on an equitable basis by the Court in respect of the conduct of the President of the Parliament and of the members of its Bureau. The applicant states that the penalty imposed on her was particularly harmful on account of its unfair nature and because it was circulated by the media not only within the Parliament but also in the Member States.

138 In the reply, the applicant states that she sustained three types of damage: (i) material damage resulting from the forfeiture of entitlement to the daily subsistence allowance for a period of 12 days and from the fact that she had to make do with the services of just one accredited parliamentary assistant; (ii) non-material damage as a result of her image being tarnished due to the media coverage which the penalty imposed on her attracted; and (iii) damage resulting from her expulsion from the Five Star Movement.

139 The Parliament considers that that claim should be dismissed as inadmissible and, in the alternative, unfounded.

140 In that regard, it must be observed, first of all, that compensation for the material damage resulting from the forfeiture of entitlement to the daily subsistence allowance for a period of 12 days is one possible consequence of the annulment of the penalty decision of the President and the decision of the Bureau of the Parliament. In that regard, it must be recalled that, pursuant to the first paragraph of Article 266 TFEU, it is the institution whose act has been declared void which is required to take the necessary measures to comply with the judgment annulling a decision. In the sharing of powers between the judicial authority and the administrative authority, it is for the institution that issued the act annulled to determine what measures are required to comply with a judgment annulling a decision (see judgment of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 55 and the case-law cited).

141 Next, as regards the fact that the applicant had to make do with the services of just one accredited parliamentary assistant, it must be observed that it is not unlawful for an institution to take steps to keep harassment complainants away from the person accused of harassment.

142 As to the remainder, the applicant seeks compensation for non-material damage.

143 It should be borne in mind that, according to the case-law, the annulment of an unlawful act may in itself adequately and, in principle, sufficiently compensate for any non-material damage which that act may have caused (judgments of 9 July 1987, Hochbaum and Rawes v Commission, 44/85, 77/85, 294/85 and 295/85, EU:C:1987:348, paragraph 22, and of 9 November 2004, Montalto v Council, T‑116/03, EU:T:2004:325, paragraph 127), unless the applicant demonstrates that he or she has suffered non-material damage which is separable from the unlawfulness giving rise to the annulment and which cannot be fully compensated for by the annulment (judgment of 31 May 2018, Korwin-Mikke v Parliament, T‑352/17, EU:T:2018:319, paragraph 78).

144 In the present case, the annulment of the contested decisions must be regarded as sufficient, particularly since the Court’s decision on the plea alleging breach of the principle of respect for the rights of the defence does not prejudge the existence or otherwise of harassment.

145 For the sake of completeness, it should be noted that the applicant did not, in accordance with the rules applicable to proceedings before the Court, set out the evidence intended to prove that the Parliament is liable for the non-material damage claimed.

146 According to settled case-law, in order to satisfy the requirements laid down in Article 76(d) of the Rules of Procedure of the General Court, an application seeking compensation for damage caused by an EU institution must state the evidence from which the conduct which the applicant alleges against the institution can be identified, the reasons why the applicant considers there is a causal link between the conduct and the damage he or she claims to have suffered, and the nature and extent of that damage (see judgment of 20 July 2017, ADR Center v Commission, T‑644/14, EU:T:2017:533, paragraph 66 and the case-law cited).

147 In the present case, the applicant did not identify in the application ‘the conduct [of the] President [of the Parliament] and [of the] members [of its] Bureau’ which caused that non-material damage or the causal link between that conduct and that damage. She also failed to explain what damage she had sustained personally.

148 Furthermore, Article 85(1) of the Rules of Procedure of the General Court provides that ‘evidence produced or offered shall be submitted in the first exchange of pleadings’.

149 In this case, the applicant did not produce evidence of the non-material damage sustained by her as an annex to the application, even though such evidence predates the application. Indeed, the various publications date from October 2018 and the decision expelling her from the party is dated 31 December 2018.

150 It is true that, under Article 85(2) of the Rules of Procedure of the General Court, ‘in reply or rejoinder a main party may produce or offer further evidence in support of his arguments, provided that the delay in the submission of such evidence is justified’.

151 However, the applicant did not state the reasons why the evidence she produced was submitted out of time.

152 In those circumstances, the claim for damages must be dismissed.

2. Other claims for compensation

153 In paragraph 63 of the application, the applicant requests the Court to ‘order the Parliament to make reparation … by communicating the decision handed down in plenary sitting of the … Parliament and by communicating the information to the largest media outlets, at the effort and expense of the … Parliament, and by engaging in acts of publicity appropriate for restoring public opinion in the applicant’. Similarly, in the form of order sought in the application, the applicant asks the Court to order the President to make public in plenary sitting the information on the existence of compensation.

154 As the Parliament points out, the EU Courts may not give directions to an EU institution or body without encroaching on the powers of the administration (see, to that effect, judgment of 15 January 2019, HJ v EMA, T‑881/16, not published, EU:T:2019:5, paragraph 26 and the case-law cited).

155 According to the case-law, that principle not only results in the dismissal of the heads of claim submitted in an action for annulment seeking an order requiring the defendant institution or body to adopt the measures necessary for the enforcement of a judgment by which a decision is annulled, on the ground that the Court lacks jurisdiction, but also applies, in principle, to an action for compensation in which an applicant seeks an order requiring an institution to take specific measures to compensate for the alleged damage (see, to that effect, judgment of 15 January 2019, HJ v EMA, T‑881/16, not published, EU:T:2019:5, paragraph 26 and the case-law cited).

156 The claims for compensation consisting of ‘communicating the decision handed down in plenary sitting of the … Parliament and … communicating the information to the largest media outlets, at the effort and expense of the … Parliament, and … engaging in acts of publicity appropriate for restoring public opinion in the applicant’ must therefore be dismissed.

IV. Costs

157 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

158 In accordance with Article 134(2) of those rules, where there is more than one unsuccessful party the Court is to decide how the costs are to be shared.

159 Pursuant to Article 135 of those rules, 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 its own costs, or even that it is not to be ordered to pay any costs.

160 In the present case, equity requires that, although the applicant’s claim for compensation has been rejected, the Parliament must be ordered to bear all its own costs and to pay those incurred by the applicant, since it has been essentially unsuccessful.

On those grounds,

THE GENERAL COURT (Fourth Chamber, Extended Composition)

hereby:

1. Annuls the decision of the President of the European Parliament of 2 October 2018 characterising the conduct of Ms Giulia Moi towards two of her accredited parliamentary assistants as psychological harassment, the decision of the President of the Parliament of 2 October 2018 imposing on Ms Moi, as a penalty for her conduct towards two of her parliamentary assistants, characterised as psychological harassment, the forfeiture of entitlement to the daily subsistence allowance for a period of 12 days, and the decision of the Bureau of the Parliament of 12 November 2018 concerning the complaint submitted by Ms Moi on 16 October 2018 under Rule 167 of the Rules of Procedure of the Parliament;

2. Dismisses the action as to the remainder;





3. Orders the Parliament to pay the costs.

Gervasoni Madise Nihoul

Frendo Martín y Pérez de Nanclares

Delivered in open court in Luxembourg on 3 February 2021.

[Signatures]