1 By its appeal, the European Parliament claims that the Court of Justice should set aside the judgment of the General Court of the European Union of 7 June 2023, TC v Parliament (T‑309/21, ‘the judgment under appeal’, EU:T:2023:315), by which the General Court upheld TC’s action in part and annulled, first, the decision of the Secretary-General of the European Parliament of 16 March 2021 declaring a debt owed by him for a sum unduly paid in the form of parliamentary assistance expenses and ordering the recovery of that sum (‘the decision at issue’) and, second, debit note No 7010000523 of 31 March 2021 (‘the debit note’), in so far as that decision and that note ordered the recovery from TC of the remuneration, social costs and travel expenses relating to the employment of his accredited parliamentary assistant A during the period from 22 May 2015 to 31 March 2016, in respect of an amount of EUR 50 754.54.
2 Article 6(1) of the Act concerning the election of the members of the European Parliament by direct universal suffrage, annexed to Decision 76/787/ECSC, EEC, Euratom (OJ 1976 L 278, p. 5), as amended by Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002 (OJ 2002 L 283, p. 1; ‘the Electoral Act’), provides: ‘Members of the European Parliament shall vote on an individual and personal basis. They shall not be bound by any instructions and shall not receive a binding mandate.’
3 Article 2 of Decision 2005/684/EC, Euratom of the European Parliament of 28 September 2005 adopting the Statute for Members of the European Parliament (OJ 2005 L 262, p. 1; ‘the Statute for Members’) states in paragraph 1 thereof: ‘Members shall be free and independent.’
4 Under Article 4 of the Statute for Members, ‘documents and electronic records which a Member has received, drafted or sent shall not be treated as Parliament documents unless they have been tabled in accordance with the Rules of Procedure.’
5 Article 21 of the Statute for Members provides: ‘1. Members shall be entitled to assistance from personal staff whom they may freely choose. 2. Parliament shall meet the expenses actually incurred by Members in employing such personal staff. 3. Parliament shall lay down the conditions for the exercise of this right.’
6 Article 33(1) and (2) of the Decision of the Bureau of 19 May and 9 July 2008 concerning implementing measures for the Statute for Members of the European Parliament (OJ 2009 C 159, p. 1; ‘the Implementing Measures’) provides: ‘1. Members shall be entitled to assistance from personal staff whom they may freely choose. Parliament shall defray expenses actually incurred and arising wholly and exclusively from the employment of one or more assistants or the use of service providers in accordance with these implementing measures and the conditions laid down by the Bureau. 2. Only expenses for assistance which is necessary and directly linked to the exercise of a Member’s parliamentary mandate may be defrayed. Expenses linked to a Member’s private life may on no account be defrayed.’
7 Article 68 of the Implementing Measures is worded as follows: ‘1. Any sum unduly paid pursuant to these implementing measures shall be recovered. The Secretary-General shall issue instructions with a view to recovery of the sums in question from the Member concerned. 2. Any decision concerning the recovery of undue payments shall be consistent with the requirement that Members should be able to exercise their mandate effectively and with the smooth running of Parliament. Before any decision is taken, the Member concerned shall be heard by the Secretary-General. 3. This article shall also apply to former Members and third parties.’
8 Recital 4 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1) states. ‘The processing of personal data should be designed to serve mankind. The right to the protection of personal data is not an absolute right; it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality. …’
9 Article 6(1) of that regulation provides: ‘Processing shall be lawful only if and to the extent that at least one of the following applies: … Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks.’
10 Recitals 5 and 22 of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ 2018 L 295, p. 39) are worded as follows: …
11 Article 4 of Regulation 2018/1725, entitled ‘Principles relating to processing of personal data’, states in paragraph 1 thereof: ‘Personal data shall be: …
12 Article 9 of that regulation, entitled ‘Transmissions of personal data to recipients established in the Union other than Union institutions and bodies’, provides: ‘1. Without prejudice to Articles 4 to 6 and 10, personal data shall only be transmitted to recipients established in the Union other than Union institutions and bodies if: 2. Where the controller initiates the transmission under this Article, it shall demonstrate that the transmission of personal data is necessary for and proportionate to the purposes of the transmission by applying the criteria laid down in points (a) or (b) of paragraph 1. 3. Union institutions and bodies shall reconcile the right to the protection of personal data with the right of access to documents in accordance with Union law.’
13 Article 26 of the Staff Regulations of Officials of the European Union, in the version applicable to the dispute (‘the Staff Regulations’), provides: ‘The personal file of an official shall contain: Documents shall be registered, numbered and filed in serial order; the documents referred to in subparagraph (a) may not be used or cited by the institution against an official unless they were communicated to him before they were filed. The communication of any document to an official shall be evidenced by his signing it or, failing that, shall be effected by registered letter to the last address communicated by the official. An official’s personal file shall contain no reference to his political, trade union, philosophical or religious activities and views, or to his racial or ethnic origin or sexual orientation. The preceding paragraph shall not however prohibit the insertion in the file of administrative acts and documents known to the official which are necessary for the application of these Staff Regulations. There shall be only one personal file for each official. An official shall have the right, even after leaving the service, to acquaint himself with all the documents in his file and to take copies of them. The personal file shall be confidential and may be consulted only in the offices of the administration or on a secure electronic medium. It shall, however, be forwarded to the Court of Justice of the European Union if an action concerning the official is brought.’
14 Article 1 of the Conditions of Employment of Other Servants of the European Union, in the version applicable to the dispute (‘the CEOS’), provides: ‘These Conditions of Employment shall apply to servants engaged under contract by the Union. Such servants shall be: … - accredited parliamentary assistants. …’
15 Article 5a of the CEOS provides: ‘For the purposes of these Conditions of employment, “accredited parliamentary assistants” means persons chosen by one or more Members and engaged by way of direct contract by the European Parliament to provide direct assistance, in the premises of the European Parliament at one of its three places of work, to the Member or Members in the exercise of their functions as Members of the European Parliament, under their direction and authority and in a relationship of mutual trust deriving from the freedom of choice referred to in Article 21 [of the Statute for Members].’
16 It follows from the first sentence of Article 127 of the CEOS that Articles 11 to 26a of the Staff Regulations are to apply by analogy to accredited parliamentary assistants.
17 The background to the dispute is set out in paragraphs 2 to 26 of the judgment under appeal and may be summarised as follows.
18 On 22 May 2015, the European Parliament (‘the Parliament’), on the basis of Article 5a of the CEOS, concluded a contract with A as a full-time accredited parliamentary assistant in Brussels (Belgium) for the purposes of assisting TC, a Member of the European Parliament, until the end of the seventh parliamentary term.
19 On 25 February 2016, TC requested the parliamentary authority empowered to conclude contracts of employment (‘the AECE’) to terminate that contract, on various grounds involving loss of trust, including absences without good reason and failure to comply with the rules on authorisations to engage in outside activities.
20 Following the failure of an attempt at conciliation, the AECE notified A, on 24 June 2016, of its decision to terminate the aforementioned contract, due to a breakdown in the relationship of trust, on the ground that he had failed to comply with the rules on authorisations to engage in outside activities.
21 On 14 April 2017, A brought an action for annulment of that decision of 24 June 2016 before the General Court.
22 By judgment of 7 March 2019, L v Parliament (T‑59/17, ‘the judgment in L v Parliament’, EU:T:2019:140), the General Court annulled that decision. In that judgment, the General Court found that it was apparent from the material in the file that TC was aware of A’s outside activities and that they were on his direct initiative. The General Court therefore held that the reason given by the AECE to justify the decision of 24 June 2016, namely the breakdown in the relationship of trust, did not appear plausible. According to the General Court, the AECE had therefore committed a manifest error of assessment in granting TC’s request for termination of A’s contract on that ground. TC was not a party to the proceedings in the case giving rise to that judgment.
23 By letter of 8 June 2020, written in English and sent to TC by email of 30 July 2020, the Secretary-General of the Parliament informed TC of the commencement of a procedure for the recovery of sums unduly paid, pursuant to Article 68 of the Implementing Measures, for a total amount of EUR 78 838.21 in respect of the parliamentary assistance provided to TC by A. The Secretary-General of the Parliament invited TC to submit, within two months, observations and evidence to rebut the Parliament’s preliminary findings on the outside activities which A had carried out to TC’s knowledge and under his direction from 22 May 2015 to 22 November 2016 and to prove that, during that same period, A had actually performed the duties of an accredited parliamentary assistant.
24 It is apparent from paragraph 13 of the judgment under appeal that, by email of 4 August 2020, TC asked the Parliament to provide him with the following: - A’s personal file at the Parliament (all documents relating to his recruitment and work), including information on the number of times protection of Parliament had been requested ‘in respect of A’ and data relating to A’s presence (data from his parliamentary access card); - copies of the correspondence TC had exchanged with the Parliament’s representatives concerning A’s work, and - the complete file in the case giving rise to the judgment in L v Parliament.
25 On 4 September 2020, the Secretary-General of the Parliament sent TC a letter, drafted in Lithuanian and dated 3 September 2020, the content of which was substantially identical to that of the letter of 8 June 2020, referred to in paragraph 23 above. Attached to that letter of 3 September 2020 was a copy of the judgment in L v Parliament, and a breakdown of the sums paid by the Parliament to A.
26 On 22 September 2020, TC reminded the Parliament of his request referred to in paragraph 24 above and he also asked it for the protocol for the conciliation procedure between himself and A in Lithuanian as well as a copy of ‘all emails from 2015, 2016 and 2019’.
27 By email of 29 October 2020, TC sent the Parliament his preliminary observations and a number of documents, while asking to be allowed to submit further information and evidence at a later stage.
28 By email of 20 November 2020, TC again asked the Parliament for the information which he had requested by his emails of 4 August and 22 September 2020, in particular data relating to A’s access to Parliament and copies of the emails of 2015, 2016 and 2019.
29 By email of 24 November 2020, TC sent the Parliament further observations and evidence in addition to those sent by him to the Parliament by his email of 29 October 2020.
30 By email of 27 November 2020, the Director-General for Finance of the Parliament (‘the Director-General for Finance’) informed TC that the time limit for submitting his observations and evidence in the context of the recovery procedure under Article 68 of the Implementing Measures had expired on 4 November 2020, but that, if he wished to obtain information concerning A, he could contact two individuals whose email addresses the Director-General for Finance provided, without such requests having any effect on that procedure.
31 By letter sent to the Parliament on 1 December 2020, TC disputed the contents of that email of 27 November 2020. In addition, he sent his requests for documents to the individuals mentioned in that email.
32 By letter of 8 January 2021 (‘the letter of 8 January 2021’), the Director-General for Finance forwarded to TC the protocol referred to in paragraph 26 above, but refused him access to the other documents requested. Furthermore, the Director-General for Finance granted TC a period of 15 days in which to submit additional observations, which TC did on 21 January 2021.
33 By the decision at issue, the Secretary-General of the Parliament considered that a sum of EUR 78 838.21 had been unduly borne by that institution in connection with the use of A for the period from 22 May 2015 to 22 November 2016 and that it should be recovered from TC pursuant to Article 68(1) of the Implementing Measures. On 31 March 2021, the Director-General for Finance, in his capacity as authorising officer by delegation, therefore issued the debit note, ordering the recovery of that sum from TC and requesting him to pay the sum by 30 May 2021 at the latest. On 31 March 2021, the Director-General for Finance notified TC of the decision at issue and the debit note.
34 By application lodged at the Registry of the General Court on 24 May 2021, TC brought an action for annulment of the decision at issue and the debit note. In support of that action, he relied on five pleas in law.
35 In the first place, it is apparent from paragraphs 27 and 28 of the judgment under appeal that following a check carried out in the context of the case giving rise to that judgment, the Parliament noted that in March 2016 it had decided to suspend payment of A’s remuneration and travel expenses with effect from 1 April 2016. Consequently, on 8 November 2022, the Secretary-General of the Parliament withdrew in part the contested decision ab initio, in so far as it related to a total sum of EUR 28 083.67. On 15 November 2022, a credit note was issued for an identical amount.
36 It is also apparent from paragraphs 32 and 36 to 42 of the grounds and point 1 of the operative part of the judgment under appeal that, in those circumstances, at the request of the Parliament and after hearing TC’s observations, the General Court held that the action had become devoid of purpose, and there was no need to adjudicate on the legality of the decision at issue and of the debit note, in so far as that decision and that debit note concerned the remuneration, social costs and travel expenses relating to A’s employment during the period between 1 April and 22 November 2016, in respect of the foregoing amount of EUR 28 083.67.
37 In the second place, after recalling, in paragraphs 45 to 53 of the judgment under appeal, the rules relating to the defrayal of parliamentary assistance expenses and the recovery of sums unduly paid in that regard, together with the relevant case-law, the General Court examined, in paragraphs 54 to 66 of that judgment, the first plea in law in the action, alleging infringement of the reasonable time principle, and dismissed it as unfounded.
38 In the third and last place, the General Court examined the second plea in law, alleging infringement of the right to be heard, the right of access to the file and the obligation to state reasons, as provided for in Article 41(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). In that context, it also examined certain arguments, summarised in paragraphs 70 and 71 of the judgment under appeal, which TC had put forward in the context of the first plea in his action.
39 In paragraphs 74 to 79 of the judgment under appeal, the General Court examined the Parliament’s argument, summarised in paragraph 73 of that judgment, that TC could not call into question the answer given to him by the Director-General for Finance in the letter of 8 January 2021, since the two-month period laid down in the sixth paragraph of Article 263 TFEU for bringing an action against the decision contained in that letter had expired.
40 As is apparent from paragraphs 78 to 80 of the judgment under appeal, the General Court considered that that letter contained the Parliament’s response to TC’s request for the production of documents which he considered necessary in order to demonstrate that A had indeed performed duties of an accredited parliamentary assistant during the period from 22 May 2015 to 22 November 2016. The General Court also found that that response formed part of the procedure for the recovery of sums unduly paid. It therefore held that it was open to TC to raise, in its action against the decision at issue and the debit note, the irregularities which, in his view, affected that letter, with the result that TC’s arguments relating to that same letter were admissible.
41 In the examination of the merits of the second plea in law and of certain arguments put forward in the context of the first plea in law, the General Court noted, in paragraph 87 of the judgment under appeal, that, by emails of 4 August, 22 September and 20 November 2020, TC had requested the Parliament to disclose various documents to him, namely: - the minutes in Lithuanian of the conciliation procedure between himself and A; - a copy of ‘all emails from 2015, 2016 and 2019’; - a copy of the correspondence he had exchanged with the Parliament’s representatives concerning A’s work; - the complete file in the case which gave rise to the judgment in L v Parliament; - A’s personal file at the Parliament (‘all documents related to his recruitment and work’), including information on the number of times protection of Parliament had been requested in respect of A and the data on his presence that could be extracted from his parliamentary access card.
42 In paragraph 88 of the judgment under appeal, the General Court found that the Parliament had sent TC those minutes and the documents relating to the termination of A’s contract. By contrast, according to the General Court, by letter of 8 January 2021, the Parliament refused to send TC the other documents referred to in the preceding paragraph of the present judgment.
43 The General Court held, in paragraph 90 of the judgment under appeal, that where a Member is requested to provide the Parliament with proof that an accredited parliamentary assistant worked for him or her, in connection with his or her parliamentary mandate, that member may, on the basis of the right to be heard, request disclosure from the Union institutions, bodies, offices and agencies of information in their possession which appears to him or her to be relevant. According to the General Court, the Parliament, when it receives such a request, cannot refuse to provide the data requested without infringing the right to be heard, unless it relies, in support of that refusal, on grounds which may be regarded as justified having regard, first, to the circumstances of the case and, second, to the applicable rules.
44 Consequently, as is apparent from paragraph 91 of the judgment under appeal, the General Court found that it had to examine whether the grounds relied on by the Parliament in its letter of 8 January 2021 for not disclosing to TC the data requested by him were justified.
45 In the first place, the General Court examined the grounds relied on by the Parliament for refusing TC’s request concerning the disclosure of ‘all emails from 2015, 2016 and 2019’ and the correspondence exchanged by TC with the relevant services of the Parliament concerning A’s work.
46 In paragraph 92 of the judgment under appeal, the General Court found that the Parliament had refused that request on the ground that, according to its policy, the retention of emails was limited to 90 days and, exceptionally, to one year. The Parliament added that the post-2019 emails could be disclosed, but that they were not relevant, as they did not relate to the period during which A was deemed to have worked for TC.
47 In that regard, in paragraph 95 of the judgment under appeal, the General Court found that, from the beginning of 2016, the Parliament had become aware of a situation of conflict between TC and A as regards whether or not the latter was carrying out his activities in compliance with the rules governing parliamentary assistance. Consequently, according to the General Court, from that time it was necessary for the Parliament to ensure the retention of emails which could establish the exact nature of A’s activities during the dismissal procedure and, if that procedure gave rise to other judicial or administrative proceedings, such as a recovery procedure, for as long as those other proceedings remained open.
48 In paragraphs 100 and 101 of the judgment under appeal, the General Court rejected the Parliament’s argument that it was for the Members to retain their emails, by creating private folders enabling their emails to be archived for an indefinite period, as the Parliament had invited Members to do so in three communications which it addressed to them on 14 June 2014, 13 October 2014 and 30 March 2015. The General Court held that the possibility of personal archiving could not have the effect of relieving the Parliament of the obligation to ensure the retention of all relevant emails and to disclose the emails thus retained, where, in accordance with the right to be heard, a request to that effect is made to the Parliament by the Member concerned, who is the subject of a recovery procedure for improper use of parliamentary assistance expenses.
49 The General Court added, first, in paragraph 102 of the judgment under appeal, that the Parliament had failed to demonstrate that the aforementioned communications had been brought to TC’s attention. In particular, as regards the communication of 14 June 2014, the General Court noted that it was addressed to the ‘newcomers’, which did not include TC, since he had been a Member before that date.
50 Second, in paragraph 103 of the judgment under appeal, the General Court found that the Parliament had not given any reasons explaining its refusal to send TC the correspondence exchanged by him with the relevant services of the Parliament.
51 Those considerations led the General Court to hold, in paragraph 104 of the judgment under appeal, that the grounds relied on by the Parliament for refusing TC’s request concerning the disclosure of ‘all emails from 2015, 2016 and 2019’ and the correspondence exchanged by him with the relevant services of the Parliament concerning A’s work were not well founded.
52 In the second place, in paragraphs 105 to 124 of the judgment under appeal, the General Court analysed the grounds relied on by the Parliament to justify refusing the TC’s request for the disclosure of A’s personal file, including all documents relating to his recruitment and work, as well as the information on the number of times protection of Parliament had been requested in respect of A and the data relating to his presence which could be extracted from his parliamentary access card.
53 In paragraph 105 of the judgment under appeal, the General Court noted that the Parliament had justified its refusal to disclose that file, those documents, that information and those data on the ground that their transmission was contrary, first, to Regulation 2018/1725 and, second, to Article 26 of the Staff Regulations. Furthermore, in paragraph 106 of that judgment, the General Court found that the Director-General for Finance had also informed TC that the interventions of the Parliament security officers were not officially recorded and that data relating to the use of parliamentary access badges were retained for a maximum period of four months.
54 First of all, in paragraphs 107 to 118 of the judgment under appeal, the General Court examined the ground based on Regulation 2018/1725. In that regard, it found, in paragraphs 110 and 111 of that judgment, that since they had to be used for his defence in the recovery procedure, the data requested by TC could not be regarded as falling within Article 9(1)(a) or (b) of that regulation. The General Court nevertheless held, in paragraph 113 of that judgment, that, ‘in the light of the importance accorded to the right to be heard in the EU legal order, the fact that such information may be found in [A]’s “personal file” cannot, as such, preclude the information from being disclosed to [TC] in order to enable him to make his observations, as required by the case-law, effectively in the exercise of that right.’
55 It added, in paragraphs 114 to 116 of that judgment, that the right to the protection of personal data is not an absolute right, but must be considered in relation to its function in society and weighed on that basis against other fundamental rights, in an approach which gives each of the rights involved its proper place in the EU legal order, in the light of the facts of the case, in accordance with the principle of proportionality. According to the General Court, the need to strike such a balance is emphasised by the EU legislature in recital 4 of Regulation 2016/679, of which Regulation 2018/1725 is the ‘equivalent’ as regards the protection of personal data by the Union institutions, bodies, offices and agencies, as stated in recital 5 of Regulation 2018/1725.
56 The General Court inferred from this, in paragraph 117 of the judgment under appeal, that it could not be accepted that the Parliament may invite TC to state his views effectively on the information contained, as the case may be, in A’s file, without giving him access to that information, after weighing up, on the one hand, A’s interest in the data concerning him not being transmitted to third parties and, on the other hand, TC’s interest in presenting his observations effectively in the context of the recovery procedure commenced against him. However, in paragraph 118 of that judgment, the General Court found that, in TC’s case, the Parliament had not taken such a step.
57 Next, as regards the ground relating to Article 26 of the Staff Regulations, the General Court stated, in paragraph 121 of the judgment under appeal, that, to the extent necessary for TC to exercise his right to be heard, the confidentiality of the documents in A’s personal file could not be relied on against TC, who was, moreover, the author of some of the documents concerned, as A’s hierarchical superior. The General Court added, in paragraph 122 of that judgment, that, in relying on Article 26 of the Staff Regulations, the Parliament had wrongly failed to take into consideration TC’s interest in having access to certain documents in A’s personal file for the purposes of submitting his observations effectively in the context of the recovery procedure commenced against him.
58 Lastly, as regards the ground concerning the data relating to the use of A’s parliamentary access card, the General Court noted, in paragraph 123 of the judgment under appeal, that, for reasons similar to those set out in paragraphs 100 and 101 of that judgment, summarised in paragraph 48 of the present judgment, the Parliament was required to take the necessary measures to ensure those data were retained for a period of more than four months, since A’s dismissal had given rise to legal proceedings and a procedure for recovery of parliamentary assistance expenses had been commenced against the Member in respect of whom the Parliament had engaged A.
59 Consequently, in paragraph 124 of the judgment under appeal, the General Court stated that it could not be held that the grounds relied on by the Parliament for refusing TC’s request concerning ‘A’s “personal file” (all documents relating to his recruitment and work)’, including information on the number of times protection of Parliament had been requested in respect of A, and the data relating to his presence which could be extracted from his parliamentary access card, were well founded.
60 In the third place, the General Court examined, in paragraphs 126 to 128 of the judgment under appeal, the grounds relied on by the Parliament for refusing TC’s request for disclosure of the file relating to the case giving rise to the judgment in L v Parliament. In that regard, the General Court noted, in paragraph 125 of the judgment under appeal, that that request had been refused by the Parliament on the grounds that that disclosure was contrary to Article 9 of Regulation 2018/1725 and that, in the proceedings before the General Court, A had obtained anonymity.
61 As regards the ground relating to Article 9 of Regulation 2018/1725, the General Court referred to paragraphs 112 to 118 of the judgment under appeal, summarised in paragraphs 54 to 56 of the present judgment. In addition, the General Court stated that anonymity, such as that granted to A in the case which gave rise to the judgment in L v Parliament, is intended to omit the name of a party to the dispute or that of other persons mentioned in connection with the proceedings concerned, or of other information in the documents relating to the case to which the public has access, and does not concern the confidentiality of the material placed on the file of those proceedings outside those proceedings, in the context of the relations between the parties and third parties. The General Court inferred from this, in paragraph 129 of the judgment under appeal, that the General Court’s decision on anonymity in the proceedings which gave rise to the judgment in L v Parliament did not preclude the Parliament from disclosing to TC the documents, exchanged in the course of those proceedings, likely to be relevant for the purposes of TC’s exercise of his right to be heard.
62 By way of conclusion, the General Court held, in paragraphs 130 and 131 of the judgment under appeal, that the grounds relied on by the Parliament in its letter of 8 January 2021 were unfounded or inadequate and that, in the absence of a proper justification by the Parliament for its refusal to disclose to TC the documents which were likely to enable him to exercise effectively his right to be heard, guaranteed by Article 41(2)(a) of the Charter, in the context of the procedure for the recovery of the sums paid in respect of parliamentary assistance expenses commenced against him, it could not be excluded that he was deprived of an opportunity to better defend himself. The General Court therefore upheld the second plea in law, in so far as it alleged infringement of the right to be heard, and, without examining the other pleas and arguments put forward by TC, annulled the decision at issue and the debit note in so far as they concerned the remuneration, social costs and travel expenses relating to the employment of A during the period from 22 May 2015 to 31 March 2016.
63 The Parliament claims that the Court of Justice should: - set aside the judgment under appeal; - give final judgment in the dispute before the General Court by granting the forms of order sought by it at first instance, and - order TC to pay the costs of both the proceedings at first instance and the appeal proceedings.
64 TC contends that the Court of Justice should dismiss the appeal and order the Parliament to pay the costs.
65 The Parliament relies on five grounds in support of its appeal. The first ground of appeal is based on disregard of the subject matter of the proceedings at first instance and the preparatory nature of the letter of 8 January 2021, infringement of the right to be heard and failure to have regard to the case-law on the effects of procedural irregularities. The second ground of appeal, divided into three parts, concerns the General Court’s findings relating to TC’s emails from 2015, 2016 and 2019 and the correspondence between TC and the Parliament’s services and leading to a finding of an infringement of the right to be heard. The third ground of appeal, divided into four parts, concerns the General Court’s findings relating to A’s personal file, the data on the use of A’s parliamentary access card and the information relating to the number of times the intervention of the security services had been requested in respect of him. The fourth ground of appeal concerns the General Court’s findings relating to the file in the case giving rise to the judgment in L v Parliament and which resulted in its being held that the right to be heard had been infringed. The fifth ground of appeal concerns the General Court’s findings relating to TC’s right to request, solely on the basis of the right to be heard, disclosure by the Parliament of information enabling him to submit his observations.
66 It is appropriate to examine, in the first place, the first part of the second ground of appeal in conjunction with the third and fifth grounds of appeal.
67 By the first part of its second ground of appeal, the Parliament disputes the grounds set out in paragraphs 2, 92 to 104, 130 and 131 of the judgment under appeal, in which the General Court held that the Parliament had infringed TC’s right to be heard, by failing to retain his emails from 2015 and 2016. According to the Parliament, the General Court relied on an excessively broad interpretation of the right to be heard and infringed the principle of the free mandate of Members, as is apparent from Article 6(1) of the Electoral Act and Article 2 of the Statute for Members, a principle which precludes any intrusion or interference by the Parliament’s services in the protected sphere of Members. Furthermore, the General Court failed to take account of the principle of data minimisation, enshrined in Article 4(1)(c) of Regulation 2018/1725.
68 The Parliament adds that the General Court erred in law in holding, in paragraph 95 of the judgment under appeal, that since the Parliament had become aware at the beginning of 2016 of the existence of a situation of conflict between TC and A, it ought to have retained emails which could establish the exact nature of A’s activities. The Parliament also disputes the General Court’s finding that the communication of 14 June 2014, referred to in paragraphs 98 and 102 of the judgment under appeal, was intended for ‘newcomer’ Members, which did not include TC.
69 By its third ground of appeal, the Parliament disputes paragraphs 105 to 124, 130 and 131 of the judgment under appeal. By the first part of that ground of appeal, it submits that the grounds concerning Article 9 of Regulation 2018/1725, set out in paragraphs 107 to 118 of that judgment, are inconsistent. The General Court found, first, that Article 9(1) of Regulation 2018/1725 precluded the transmission to TC of A’s data and held, second, that the Parliament could have forwarded those data to TC. The Parliament was thus placed in a situation in which it would be impossible for it to comply with the judgment under appeal, as required by Article 266 TFEU.
70 By the second part of its third ground of appeal, the Parliament disputes the grounds set out in paragraphs 119 to 122, 124, 130 and 131 of the judgment under appeal, concerning the Parliament’s refusal to forward A’s personal file to TC. It submits that the first sentence of the last paragraph of Article 26 of the Staff Regulations precluded any transmission of information in A’s personal file, since that file could be consulted only in the offices of the administration or on a secure computer medium. In any event, that file could not have contained documents demonstrating the genuineness of the work carried out by A and the link existing between that work and the exercise of TC’s mandate.
71 By the third part of its third ground of appeal, the Parliament disputes the grounds set out in paragraphs 123, 124, 130 and 131 of the judgment under appeal, by which the General Court held that the right to be heard required the Parliament to take the necessary measures for the retention of data relating to the use of A’s parliamentary access card. The Parliament complains that the General Court relied on an excessively broad interpretation of the right to be heard and failed to have regard to Article 4(1)(e) of Regulation 2018/1725.
72 By the fourth part of its third ground of appeal, the Parliament disputes the grounds set out in paragraphs 124, 130 and 131 of the judgment under appeal to justify the General Court’s conclusion that the Parliament had infringed TC’s right to be heard by failing to provide him with information relating to the number of times protection of the Parliament had been requested in respect of A. The Parliament complains that the General Court failed to take account of the fact that, as explained in the letter of 8 January 2021, such information was not recorded by the Parliament’s ‘Security and Safety’ Directorate-General. In any event, such information would not have been relevant.
73 By its fifth ground of appeal, the Parliament submits that paragraphs 90 and 91 of the judgment under appeal are vitiated by an error of law, in that the General Court held that TC could, solely on the basis of the right to be heard under Article 41(2)(a) of the Charter, request the disclosure of information which appeared to be relevant in order to establish that the use of the parliamentary assistance expenses concerned was proper.
74 According to the Parliament, that finding of the General Court creates a new right of access to the material held by the Parliament, beyond the right of access to the file provided for in Article 41(2)(b) of the Charter. In that regard, the General Court did not set out the reasons that would justify the recognition of such a right, such recognition having no basis in Article 41(2)(a) of the Charter. Moreover, such recognition would have the effect of contradicting the general scheme of Article 41(2) of the Charter, point (b) of which establishes a clearly defined and complete means, allowing the data subject to have access to any material in the file concerning him or her.
75 TC responds to the first part of the second ground of appeal, relating to access to the emails of 2015 and 2016, stating that it is apparent from paragraphs 94 to 102 of the judgment under appeal that the General Court took account of the exceptional circumstances of the case, characterised by the fact that, from the beginning of 2016, the Parliament became aware of the situation of conflict between TC and A and of the latter’s failure to comply with the rules governing his activity. According to TC, it was that situation of conflict that justified the initiation of the recovery procedure against him. TC complains that the Parliament failed to inform him of its intention to delete his emails, which contained proof of the work carried out by A. TC contends, moreover, that the Parliament’s arguments based on Article 6(1) of the Electoral Act and Article 2 of the Statute for Members are new, since they were not raised before the General Court. In any event, those arguments cannot be accepted, in so far as, first, the mere retention of a Member’s emails by the Parliament, manager of its own electronic correspondence system, cannot be classified as ‘interference’ and, second, the Parliament retains Members’ emails for 90 days.
76 As regards the Parliament’s arguments based on Regulation 2018/1725, TC contends that the Parliament has not provided details of how it processes personal data and has not explained how longer email retention periods could be incompatible with the regime established by that regulation. In addition, the principle of data minimisation, laid down in Article 4(1)(c) of that regulation, concerns the volume of data processed and not the duration of their retention.
77 Furthermore, despite an invitation to that effect from the General Court, the Parliament did not place on the file at first instance any evidence establishing that TC had acquainted himself with the communications relating to the email retention policy, which, moreover, were drafted in languages not understood by TC. Consequently, the question whether or not, in 2014, he ought to have been regarded as a ‘newcomer’ Member is irrelevant.
78 In response to the first part of the third ground of appeal, TC contends that the General Court clearly stated, in paragraphs 115 and 116 of the judgment under appeal, that the Parliament was required to comply with Regulations 2016/679 and 2018/1725 and to process personal data in such a way as to enable him to exercise his right to be heard. As regards the second to fourth parts of that ground of appeal, TC observes that all the information which he had requested and which the Parliament refused to provide him was capable of serving, directly or indirectly, to prove the work carried out by A.
79 In response to the fifth ground of appeal, TC states that the Parliament did not dispute, either in the letter of 8 January 2021 or during the proceedings before the General Court, his right to obtain information, and that it merely invoked Article 9 of Regulation 2018/1725. It follows, according to TC, that, by that ground of appeal, the Parliament puts forward new arguments on which the General Court did not have the opportunity to rule.
80 In any event, TC contends that there is no need to distinguish between ‘right to information’ and ‘right to be heard’. Those rights are, in essence, only components of the general right to good administration, enshrined in Article 41 of the Charter. However, the Parliament considered that it was not bound by any obligation in the context of the procedure for recovery of parliamentary assistance expenses. It destroys the relevant evidence in its possession and, subsequently, requests the Members to produce the same evidence, on the ground that the burden of proof lies with them.
81 TC states, moreover, that it is apparent from the case-law of the General Court that access to the administrative file cannot be made conditional on a request by the data subject. He contends that, in the present case, the Parliament significantly restricted his right of access to the file and to make his observations effectively. The effective exercise of the right to be heard implies the possibility of making observations supported by evidence, at least some of which would be in the Parliament’s possession. According to TC, the Parliament cannot merely invite him to submit his observations, thereby complying in a purely formal manner with his right to be heard, without affording him the means of exercising it effectively.
82 As a preliminary point, in so far as TC contends that the Parliament puts forward, in the context of the first part of its second ground of appeal and also its fifth ground of appeal, new arguments not raised before the General Court, it must be borne in mind that, according to settled case-law, an appellant is entitled to lodge an appeal relying on grounds which arise from the judgment under appeal itself and seek to criticise, in law, its correctness (judgment of 6 September 2018, Czech Republic v Commission, C‑4/17 P, EU:C:2018:678, paragraph 24 and the case-law cited).
83 By the first part of its second ground of appeal, the Parliament disputes the grounds advanced in the judgment under appeal to justify the finding in paragraph 131 thereof that the Parliament had not correctly justified its refusal to disclose to TC, inter alia, his emails from 2015 and 2016.
84 In addition, by its fifth ground of appeal, the Parliament disputes, in essence, the merits of the ground set out in paragraph 90 of the judgment under appeal, according to which, where a Member called upon to justify the work carried out by his or her parliamentary assistant requests the Parliament to disclose to him or her information in its possession which appears relevant, the Parliament cannot refuse that request without infringing the right to be heard of the Member concerned, unless it relies, in support of that refusal, on grounds which may be regarded as justified in the light, first, of the circumstances of the case and, second, of the applicable rules.
85 In both cases, these are pleas and arguments arising from the judgment under appeal itself, which, in accordance with the case-law cited in paragraph 82 above, are admissible.
86 As to the substance, in the first place, so far as concerns the ground set out in paragraph 90 of the judgment under appeal, disputed by the Parliament in its fifth ground of appeal, it must be borne in mind that respect for the rights of the defence, enshrined in Article 41(2) of the Charter, constitutes a fundamental right forming an integral part of the EU legal order. That right includes, inter alia, the right of every person to be heard, before any individual measure which would affect him or her adversely is taken and the right to have access to the file, while respecting the legitimate interests of confidentiality (see, to that effect, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 98 and 99).
87 In particular, it is apparent from the Court’s case-law that the right to be heard, enshrined in Article 41(2)(a) of the Charter, must be observed in all proceedings which are liable to culminate in a measure adversely affecting a person, and 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 (see, to that effect, judgment of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 67 and the case-law cited).
88 As regards the right of access to the file, enshrined in Article 41(2)(b) of the Charter, that right means that the person concerned must be provided with the opportunity to examine all the documents in the investigation that might be relevant for his or her defence. Those documents comprise both inculpatory and exculpatory evidence, with the exception of business secrets, internal documents of the institution concerned and other confidential information (see, to that effect, judgment of 25 October 2011, Solvay v Commission, C‑110/10 P, EU:C:2011:687, paragraph 49 and the case-law cited).
89 It is thus apparent from Article 41(2) of the Charter and from the case-law cited in paragraphs 86 to 88 above that, before making his or her observations in exercise of his or her right to be heard enshrined in Article 41(2)(a) of the Charter, the person concerned may, in exercise of the right conferred on him or her under Article 41(2)(b) of the Charter, request and obtain, while respecting the legitimate interests of confidentiality and of professional and business secrecy, access to all the material in the file compiled by the administration concerned.
90 On the other hand, the right to be heard must be distinguished from the right to request and obtain access to any document which, although not in that file, is in the possession of the institution concerned and is regarded by the person concerned as potentially relevant for his or her defence. That is the reason for which Article 41(2)(b) of the Charter provides for a specific right guaranteeing the person concerned access to his or her file.
91 The particular features of the situation of a Member called upon to justify the parliamentary assistance expenses incurred in his or her regard by the Parliament cannot justify a different interpretation of his or her rights of defence, enshrined in Article 41 of the Charter.
92 As the General Court recalled in paragraph 89 of the judgment under appeal, it is clear from Article 33(1) and (2) of the Implementing Measures that it is for Members who request the Parliament to bear financial responsibility for the costs of the assistance from personal staff to prove that those expenses were actually incurred and correspond to assistance which was necessary and directly linked to the exercise of their mandate (judgment of 4 July 2024, SN v Parliament, C‑430/23 P, EU:C:2024:576, paragraph 47 and the case-law cited).
93 However, it cannot be excluded that the information necessary to provide that proof is in the possession not of the Member concerned, but of the Parliament. In such a case, it is possible that that Member will not be able to obtain such information solely on the basis of his or her right to obtain, under Article 41(2)(b) of the Charter, access to his or her file which is in the Parliament’s possession.
94 Indeed, as the Advocate General stated, in essence, in point 67 of her Opinion, inasmuch as it will be for the Member in question to provide that proof, the file compiled by the Parliament will contain, at least initially, only the evidence at the origin of the request addressed to that Member, in particular a statement of the parliamentary assistance expenses incurred by the Parliament in respect of him or her.
95 The fact remains, however, that each Member knows the work that his or her parliamentary assistant carries out and, therefore, is in a position to describe it, even if he or she does not have all the proof necessary to substantiate his or her assertions.
96 Accordingly, as the Advocate General also observed in point 69 of her Opinion, a Member faced with a request to justify the parliamentary assistance expenses incurred in respect of him or her and who does not have all the evidence necessary for that purpose, which could be in the Parliament’s possession, may initially confine himself or herself to setting out, in his or her observations submitted to the Parliament in response to that request, the work carried out by his or her assistant, by producing the evidence available to him or her and by referring to evidence that may be in the Parliament’s possession.
97 It must, however, be pointed out, as the Advocate General observed in point 70 of her Opinion, that such a reference must indicate with sufficient precision both the evidence concerned and the facts, relating to the genuineness of the work of the assistant concerned and the link between that work and the Member’s mandate, which that evidence would be capable of proving. Such indications are a precondition for the Parliament to be able to identify that evidence and to examine it in order to verify that it actually provides the proof requested of that member.
98 If the Parliament, after examining the evidence at issue, considers that it does not prove the genuineness of the work carried out by the parliamentary assistant of the Member concerned or the link between that work and the exercise of that member’s mandate, it will then be for the Parliament, in order to ensure full respect for that member’s rights of defence, to place that evidence on the file, to grant that member access to that file, while respecting the requirements of, inter alia, confidentiality, and to give him or her the opportunity to supplement, if he or she so wishes, his or her observations.
99 Consequently, in the light of the considerations set out in paragraphs 86 to 98 above, it must be held that paragraph 90 of the judgment under appeal is vitiated by an error of law, in that the General Court held in that paragraph that, unless the Parliament relies on grounds which may be regarded as justified having regard to the circumstances of the case and to the applicable rules, where a Member called upon to demonstrate the genuineness of the work carried out by his or her parliamentary assistant and the link between that work and the Member’s mandate so requests, the Parliament must disclose to that member all the information in its possession which ‘appears relevant’, without, however, requiring such a request to set out with sufficient precision, in accordance with the conditions detailed in paragraphs 96 and 97 above, both the evidence which may be in the Parliament’s possession and the facts, relating to the genuineness of that assistant’s work and to the link between that work and the Member’s mandate, which that evidence would be capable of proving, so that the Parliament may identify that evidence for the purposes of its verification.
100 It follows that the fifth ground of appeal must be upheld.
101 In the second place, as regards the first part of the second ground of appeal and the third and fourth parts of the third ground of appeal - by which the Parliament disputes the grounds of the judgment under appeal relating to the infringement of TC’s rights of defence on account of the fact that TC’s emails from 2015 and 2016, the data relating to the use of A’s parliamentary access card and the information relating to the number of times protection of Parliament had been requested in respect of A were not disclosed to TC - an institution cannot be required to place on the file relating to an administrative procedure which has been initiated evidence which is non-existent or which, on the date on which that procedure was initiated, no longer exists.
102 That consideration does not mean that the failure to record certain information or to retain certain evidence cannot have an influence on the outcome of the procedure concerned. However, that issue does not concern the right of access to the file, enshrined in Article 41(2)(b) of the Charter. It is relevant to the assessment of the available evidence and of the validity, in fact, of the act adopted by the institution concerned at the end of the procedure in question.
103 In particular, in a case where, as here, it is for the person concerned - in this case a Member or a former Member of the Parliament - to demonstrate the genuineness of certain facts, failing which the institution concerned - in this case the Parliament - is entitled to adopt a decision in a specific sense, it would be possible to consider that the person concerned has discharged the burden of proof borne by him or her, even though the evidence which he or she has produced appears prima facie insufficient, if it transpires that that institution has wrongly failed to retain certain other evidence which could have provided more complete proof.
104 Conversely, it could be considered that the person concerned has not discharged that burden if the evidence which he or she has produced is insufficient and he or she has not submitted evidence which it was for him or her to retain and produce on request.
105 In the present case, it is apparent from paragraphs 85, 86, 92 and 96 of the judgment under appeal that, on 8 June 2020, the date on which the recovery procedure against TC was initiated, his emails from 2015 and 2016 had already been deleted from the Parliament’s system, in accordance with that institution’s email retention policy, according to which emails were in principle deleted after 90 days or, exceptionally, after one year.
106 Furthermore, it is apparent from paragraph 106 of the judgment under appeal that the data relating to the use of parliamentary access cards were retained for a maximum period of four months and that the interventions of the parliamentary security officers were not officially recorded.
107 In paragraphs 130 and 131 of the judgment under appeal, the General Court held that the grounds relied on by the Parliament in the letter of 8 January 2021 to justify the non-disclosure to TC, inter alia, of his emails from 2015 and 2016, the data relating to the use of A’s parliamentary access card and the information relating to the number of times protection of Parliament had been requested in respect of A, were unfounded or inadequate, and that, consequently, it could not be excluded that TC had been deprived of an opportunity to better defend himself by exercising effectively his right to be heard, guaranteed in Article 41(2)(a) of the Charter.
108 However, first, it is apparent from the considerations set out in paragraphs 101 to 104 of the present judgment that, by holding in essence that in order to safeguard TC’s rights of defence, the Parliament ought to have given TC access to information which had never existed or which no longer existed as at the date on which the Parliament initiated the procedure which led to the adoption of the decision at issue and compiled the file relating to that procedure, the General Court erred in law.
109 Second, without it being necessary to determine whether the retention by the Parliament of Members’ emails for an indefinite period or longer than the 90 days provided for by its email retention policy in force at the time of the facts of the present case would be liable, as the Parliament maintains, to undermine the freedom and independence of Members, it is sufficient to point out, as the General Court noted in paragraph 93 of the judgment under appeal, that there was nothing to prevent the Parliament from providing for the automatic deletion, on the expiry of that period, of emails not specifically stored by Members and other users of the Parliament’s email system.
110 As it is, the General Court erred in law in holding, in paragraph 95 of the judgment under appeal, that since, from the beginning of 2016, the Parliament became aware of a ‘a situation of conflict between [TC] and [A] as regards whether or not [A] was carrying out his activities for [TC] in compliance with the rules governing parliamentary assistance’, it was for the Parliament to ensure ‘the retention of emails which could establish the exact nature of the activities of [A] during the dismissal procedure and, if that procedure gave rise to other judicial or administrative proceedings, such as a recovery procedure, for as long as those other proceedings remained open’.
111 Indeed, it is apparent from paragraphs 86, 92 and 96 to 98 of the judgment under appeal that the Parliament had undertaken to comply with an email retention policy according to which, in principle, beyond a retention period of 90 days, emails would automatically be deleted unless the persons concerned had themselves saved them. The Parliament’s awareness of a ‘situation of conflict’ between a Member of Parliament and his or her parliamentary assistant cannot justify the Parliament departing from that undertaking.
112 That is all the more so since, in order to be able to retain emails likely to be relevant to the situation of conflict between TC and A, the Parliament would have had to screen their emails, which would have constituted a major and unjustified interference in the private spheres of that member and that parliamentary assistant. In that regard, it must, moreover, be noted, as the Advocate General observed in point 87 of her Opinion, that in accordance with Article 4 of the Statute for Members, emails sent or received by a Member are not Parliament documents and therefore belong to the Member himself or herself.
113 Furthermore, for the purposes of adjudication on any proceedings arising from that situation of conflict, it was not necessary for the Parliament to retain, as a preventive measure and on its own initiative, the emails exchanged between TC and A. The Parliament could rely, in that regard, on the statements of the persons concerned and on the evidence produced by them, including any emails which either of them had retained and produced.
114 In that context, it must be borne in mind, as stated in paragraph 92 above, that the burden of proving the costs of the assistance from personal staff lies with the Members.
115 Third, for reasons similar to those set out in paragraphs 112 to 114 above, it must be held that, contrary to what the General Court in essence found, the Parliament was also not required to retain the data relating to the use of A’s parliamentary access card beyond their usual retention period or to maintain a register of interventions by its security officers that were requested in respect of A.
116 It follows from the considerations set out in paragraphs 101 to 115 above that the first part of the second ground of appeal and the third and fourth parts of the third ground of appeal must also be upheld.
117 In the third place, as regards the grounds set out in paragraphs 109 to 118 of the judgment under appeal concerning the Parliament’s reliance, in the letter of 8 January 2021, on Regulation 2018/1725 - grounds which the Parliament disputes by the first part of its third ground of appeal - the General Court was right to find in paragraph 110 of that judgment that the data requested by TC could not be regarded as being ‘necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the recipient’ within the meaning of Article 9(1)(a) of that regulation.
118 By contrast, as the Advocate General observed in points 97 and 98 of her Opinion, the conduct of a procedure for the recovery of parliamentary assistance expenses unduly incurred by the Parliament in respect of a Member, while respecting that member’s rights of the defence, must be regarded as serving ‘a specific purpose in the public interest’, within the meaning of Article 9(1)(b) of Regulation 2018/1725.
119 Accordingly, if personal data are contained in the file for the recovery procedure concerned, that regulation does not preclude the Parliament, in order to comply with its obligation under Article 41(2)(b) of the Charter, from granting the Member concerned access to those data, in compliance with the conditions governing such access laid down in Article 9(1)(b) of that regulation, it being borne in mind that, in accordance with Article 41(2)(b) of the Charter, access to the file must be granted while respecting, inter alia, ‘the legitimate interests of confidentiality’.
120 It follows that the inconsistency in the grounds of the judgment under appeal alleged by the Parliament arises from an error of law, inasmuch as the General Court wrongly held, in paragraph 111 of that judgment, that the transmission of such data did not serve a ‘specific purpose in the public interest’ within the meaning of Article 9(1)(b) of Regulation 2018/1725.
121 Nevertheless, although the General Court held, in paragraphs 110 and 111 of the judgment under appeal, that Article 9(1) of Regulation 2018/1725 cannot justify the transmission of personal data to a Member faced with a request to justify the parliamentary assistance expenses incurred in respect of him or her, it found, in paragraph 117 of that judgment, that, in the present case, the Parliament was required to grant TC access to the personal data in A’s file ‘after weighing up, on the one hand, that [parliamentary assistant’s] interest in the data concerning him not being transmitted to third parties and, on the other hand, [TC]’s interest in presenting his observations effectively in the context of the recovery procedure commenced against him’.
122 In so doing, the General Court ultimately accepted that the Parliament was required to grant TC access to the personal data of that parliamentary assistant, in compliance with conditions which are substantially the same as those laid down in Article 9(1)(b) of Regulation 2018/1725.
123 Consequently, the first part of the third ground of appeal cannot, in any event, lead to the setting aside of the judgment under appeal and must be rejected as ineffective.
124 In the fourth and last place, as regards A’s personal file, as the Parliament submits in the context of the second part of its third ground of appeal, it is apparent from the last paragraph of Article 26 of the Staff Regulations, applicable to accredited parliamentary assistants by virtue of the first sentence of Article 127 of the CEOS, that the personal file of such an assistant may be consulted only in the offices of the Parliament or on a secure electronic medium and may be forwarded only to the Court of Justice of the European Union if an action concerning the assistant is brought.
125 In the present case, it is apparent from the last indent of paragraph 87 of the judgment under appeal that TC had not requested the Parliament to be able to consult A’s personal file in its offices or on a secure electronic medium, but rather to be forwarded it. However, such forwarding would have been contrary to Article 26 of the Staff Regulations.
126 It follows that the General Court erred in law in so far as it held, in essence, in paragraphs 121 and 122 of the judgment under appeal, that the Parliament could not validly rely on Article 26 of the Staff Regulations in order to refuse TC’s request, on the ground that the confidentiality of the documents in that file could not be relied on against TC to the extent necessary for him to exercise his right to be heard, TC being, moreover, the author of some of the documents in that file, as A’s hierarchical superior.
127 Consequently, the second part of the third ground of appeal must be upheld.
128 It follows from all the foregoing that the appeal must be upheld and points 2 and 3 of the operative part of the judgment under appeal set aside.
129 In those circumstances, there is no need to examine the first and fourth grounds of appeal, or the second and third parts of the second ground of appeal, since they seek to challenge grounds of the judgment under appeal which are based on a premiss which has been established, during the examination of the fifth ground of appeal, to be vitiated by an error of law.
130 By contrast, point 1 of the operative part, by which the General Court held that the action for annulment had become devoid of purpose and that there was no need to adjudicate on the legality of the decision at issue and of the debit note, in so far as they concerned the remuneration, social costs and travel expenses relating to A’s employment during the period between 1 April and 22 November 2016, in respect of an amount of EUR 28 083.67, must not be considered covered by the appeal, since the Parliament was not unsuccessful in its claims as regards that part of the judgment under appeal.
131 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the decision of the General Court is set aside, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.
132 In the present case, the state of the proceedings permits final judgment to be given on the first and second pleas in the action.
133 The first plea in law formally alleges infringement of the reasonable time principle, laid down in Article 41(1) of the Charter. The arguments relied on by TC in support of that plea in law were summarised in paragraphs 54 and 55 of the judgment under appeal and were rejected by the General Court on the grounds set out in paragraphs 57 to 66 of that judgment, which cannot be called into question, since TC did not lodge a cross-appeal in respect of that part of that judgment (see, to that effect, judgment of 23 November 2021, Council v Hamas, C‑833/19 P, EU:C:2021:950, paragraph 81 and the case-law cited).
134 However, in the context of that first plea, TC also put forward arguments relating to the Parliament’s refusal, in the letter of 8 January 2021, to send him the information he had requested. Those arguments, summarised in paragraphs 70 and 71 of the judgment under appeal, were examined by the General Court in conjunction with the second plea in law of the action, alleging infringement of the right to be heard, of the right of access to the file and of the obligation to state reasons, as provided for in Article 41(2) of the Charter, which the General Court upheld. Since the judgment under appeal has been set aside, those arguments and that second plea in law must be considered together.
135 TC submits that the Parliament infringed his right to be heard and his right of access to the file, enshrined in Article 41(2) of the Charter, on the ground that it referred, in the decision at issue, to the findings of the judgment in L v Parliament (T‑59/17, EU:T:2019:140), without disclosing the evidence to him, in particular a note from A of 9 May 2016, which supported those findings. Furthermore, he submits that because of the Parliament’s policy concerning the retention of emails, which he considers to be irreconcilable with recital 22 of Regulation 2018/1725 and of which he claims to have been unaware, he was deprived of the opportunity of producing evidence against the Parliament’s claims. In addition, he complains that the Parliament wrongly relied on Article 9 of that regulation in order to refuse him access to the evidence which he had requested.
136 However, it is apparent from the grounds set out in paragraphs 86 to 116 and 124 to 126 of the present judgment that the Parliament’s refusal, in the letter of 8 January 2021, to send TC the evidence which he had requested, cannot be regarded as constituting an infringement of his rights of defence and, in particular, of his right to be heard.
137 First, in his requests of 4 August and 22 September 2020, referred to in paragraphs 24 and 26 of the present judgment respectively, TC had merely requested the disclosure of a whole series of items of evidence referred to generally, without identifying the facts to be proven or the evidence capable of proving those facts. In particular, TC did not state what work A had done, what the link between that work and the exercise of his parliamentary mandate was and how the evidence requested, which was in the Parliament’s possession, could prove that work and that link.
138 Second, some of the evidence requested, namely TC’s emails from 2015 and 2016, the data relating to the use of A’s parliamentary access card and the information relating to the number of times Parliament’s protection was requested in respect of A had never existed or, in any event, did not exist on the date on which the procedure at issue was initiated and, therefore, when TC made his request.
139 Third, the disclosure to TC of A’s personal file was prohibited, in accordance with Article 26 of the Staff Regulations.
140 As regards TC’s argument based on the Parliament’s alleged reference, in the decision at issue, to the findings in the judgment in L v Parliament, it is sufficient to recall that, as is apparent from paragraph 25 of the present judgment, the Parliament sent TC a copy of the judgment in L v Parliament, with the result that it cannot be validly criticised for having taken into consideration, in the decision at issue, material to which TC did not have access.
141 Consequently, the first and second pleas in law in the action before the General Court must be rejected.
142 As to the remainder, the state of the proceedings does not permit final judgment to be given, since the third to fifth pleas in law relied on by TC in support of his action were not examined by the General Court.
143 Consequently, the case must be referred back to the General Court for a ruling on those pleas.
144 Since the case has been referred back to the General Court, the costs relating to the present appeal must be reserved. 1. Sets aside points 2 and 3 of the operative part of the judgment of the General Court of the European Union of 7 June 2023, TC v Parliament (T‑309/21, EU:T:2023:315); 2. Dismisses the first and second pleas in law in the action before the General Court of the European Union; 3. Refers the case back to the General Court of the European Union for judgment on the third to fifth pleas in law; 4. Reserves the costs.