JUDGMENT OF THE COURT (Tenth Chamber)
4 July 2024 (*)
(Appeal – European Parliament – Rules governing the payment of expenses and allowances to Members of Parliament – Parliamentary assistance allowance – Recovery of sums unduly paid)
In Case C‑430/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 12 July 2023,
SN, represented by P. Eleftheriadis, Barrister,
appellant,
the other party to the proceedings being:
European Parliament, represented by M. Ecker, N. Görlitz and T. Lazian, acting as Agents,
defendant at first instance,
THE COURT (Tenth Chamber),
composed of Z. Csehi, President of the Chamber, M. Ilešič and D. Gratsias (Rapporteur), Judges,
Advocate General: T. Ćapeta,
Registrar: A. Calot Escobar,
having regard to the written procedure,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 By her appeal, SN seeks to have set aside the judgment of the General Court of the European Union of 3 May 2023, SN v Parliament (T‑249/21, EU:T:2023:233; ‘the judgment under appeal’), by which the General Court dismissed in part her action seeking annulment, first, of the decision of the Secretary-General of the European Parliament of 21 December 2020 concerning the recovery of a sum of EUR 196 199.84 unduly paid by way of parliamentary assistance allowance (‘the decision at issue’) and, secondly, the corresponding debit note of 15 January 2021 (‘the debit note’).
Legal context
The Statute for Members
2 Article 2(1) 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:
‘Members shall be free and independent.’
3 Article 21 of the Statute for Members states:
‘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.’
The Implementing Measures
4 Article 33(1) and (2) of the Decision of the Bureau [of the European Parliament] of 19 May and 9 July 2008 concerning implementing measures for the [Statute for Members] (OJ 2009 C 159, p. 1), as amended by the Decision of the Bureau of the European Parliament of 5 July and 18 October 2010 amending the Implementing Measures for the [Statute for Members] (OJ 2010 C 283, p. 9) (‘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.’
5 Article 34(1) of the Implementing Measures provides:
‘1. Members shall make use of:
(a) accredited parliamentary assistants as referred to in Article 5a of the Conditions of employment of other servants, and
(b) natural persons who are to assist Members in their Member States of election and who have concluded an employment or service contract with them in keeping with applicable national law, in accordance with the conditions laid down in this chapter, hereinafter referred to as “local assistants”.’
6 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.’
The Staff Regulations
7 Article 60 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) provides:
‘Except in case of sickness or accident, an official may not be absent without prior permission from his immediate superior. Without prejudice to any disciplinary measures that may apply, any unauthorised absence which is duly established shall be deducted from the annual leave of the official concerned. If he has used up his annual leave, he shall forfeit his remuneration for an equivalent period.’
8 Under Article 85 of the Staff Regulations:
‘Any sum overpaid shall be recovered if the recipient was aware that there was no due reason for the payment or if the fact of the overpayment was patently such that he could not have been unaware of it.
…’
9 Article 86 of the Staff Regulations is the only article in Title VI thereof, which is entitled ‘Disciplinary measures’. It provides:
‘1. Any failure by an official or former official to comply with his obligations under these Staff Regulations, whether intentionally or through negligence on his part, shall make him liable to disciplinary action.
…
3. Disciplinary rules, procedures and measures and the rules and procedures covering administrative investigations are laid down in Annex IX.’
The CEOS
10 Article 1 of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) provides:
‘These Conditions of Employment shall apply to servants engaged under contract by the [European] Union. Such servants shall be:
…
– accredited parliamentary assistants.
…’
11 Article 5a of the CEOS states:
‘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].’
12 Title VII of the CEOS contains the provisions applicable to accredited parliamentary assistants and comprises nine chapters. Article 125 of the CEOS is included in Chapter 1 of that title, entitled ‘General provisions’, and provides, in paragraph 1 thereof:
‘The European Parliament shall adopt implementing measures by internal decision for the purposes of the application of this Title.’
13 Chapter 4 of Title VII of the CEOS is entitled ‘Working conditions’ and contains, as its sole article, Article 131, which provides:
‘1. Accredited parliamentary assistants shall be engaged to perform either part-time or full-time duties.
2. The weekly working hours of an accredited parliamentary assistant shall be set by the Member, but in normal circumstances may not exceed 42 hours per week.
3. Accredited parliamentary assistants may not be required to work overtime except in the event of an emergency or exceptional workload. …
4. However, overtime worked by accredited parliamentary assistants shall carry no right to compensation or remuneration.
5. Articles 42a, 42b, 55a and 57 to 61 of the Staff Regulations (leave, hours of work and public holidays) … shall apply by analogy. …’
14 Chapter 7 of Title VII of the CEOS is entitled ‘Recovery of undue payment’ and contains, as its sole article, Article 137, which is worded as follows:
‘The provisions of Article 85 of the Staff Regulations on the recovery of undue payment shall apply mutatis mutandis.’
15 Chapter 9 of Title VII of the CEOS is entitled ‘Termination of employment’. Article 139 of the CEOS, the sole article in that chapter, provides, in paragraph 3:
‘… The employment of an accredited parliamentary assistant may be terminated without notice in serious cases of failure to comply with his obligations, whether intentionally or through negligence on his part. A reasoned decision shall be taken by the [authority authorised to conclude contracts], after the person concerned has had an opportunity to submit his defence.
Specific provisions relating to the disciplinary procedure shall be laid down in the implementing measures referred to in Article 125(1).’
Regulation (EC) No 160/2009
16 Article 5a of the CEOS and Title VII thereof were inserted into the CEOS pursuant to Article 1 of Council Regulation (EC) No 160/2009 of 23 February 2009 amending the Conditions of Employment of Other Servants of the European Communities (OJ 2009 L 55, p. 1). Recitals 5 and 16 of that regulation state:
‘(5) … With a view to ensuring transparency and legal certainty through common rules, it is appropriate to provide for accredited parliamentary assistants to be employed by way of direct contracts with the European Parliament. …
…
‘(16) The implementing measures laid down by internal decision of the European Parliament should include further rules for the implementation of this Regulation, based on the principle of sound financial management as set out in Title II of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities [(OJ 2002 L 248, p. 1)].’
The Financial Regulation
17 Article 92(1) and (2) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1; ‘the Financial Regulation’), provides:
‘1. The authorising officer responsible shall be liable for payment of compensation as laid down in the Staff Regulations.
2. The obligation to pay compensation shall apply in particular if the authorising officer responsible, whether intentionally or through gross negligence on his or her part:
(a) determines entitlements to be recovered or issues recovery orders, commits expenditure or signs a payment order without complying with this Regulation;
(b) omits to draw up a document establishing an amount receivable, neglects to issue a recovery order or is late in issuing it or is late in issuing a payment order, thereby rendering the Union institution liable to civil action by third parties.’
Background to the dispute
18 The facts of the dispute are set out in paragraphs 2 to 12 of the judgment under appeal and, for the purposes of the present proceedings, may be summarised as follows.
19 The appellant was a Member of Parliament from 2014 to 2019.
20 On 17 May 2016, the Parliament concluded with A, on the basis of Article 5a of the CEOS, an employment contract as a full-time accredited parliamentary assistant in Brussels (Belgium) for the period from 17 May 2016 to the end of the parliamentary term. The contract stated that the parliamentary assistant concerned would primarily perform drafting and advisory duties, but could also be called upon to provide administrative support and perform secretarial duties.
21 On 26 October 2016, the European Anti-Fraud Office (OLAF) opened an investigation as regards certain Members of Parliament and some of their assistants concerning, in particular, parliamentary assistance allowance which had been paid to them. On 8 November 2018, OLAF informed the appellant that she was one of the persons concerned by its investigation and invited her to submit her observations on the facts concerning her, which she did by email of 11 December 2018.
22 On 30 November 2018, following A’s resignation, his employment contract came to an end.
23 In the light of OLAF’s report, drawn up on 26 March 2019, and the Parliament’s preliminary assessment, the Secretary-General of the Parliament informed the appellant, on 16 April 2020, that a recovery procedure had been initiated in respect of the appellant, in accordance with Article 68 of the Implementing Measures, and invited her to submit her observations, which she did on 12 June 2020. On that occasion, she sent the Secretary-General of the Parliament a file comprising of several documents intended to establish ‘the reality’ of the work carried out by A.
24 By the decision at issue, the Secretary-General of the Parliament took the view that, during the period from 17 May 2016 to 30 November 2018, a sum in the amount of EUR 196 199.84 had been unduly paid in connection with A’s employment and had to be recovered from the appellant. It also instructed the Parliament’s responsible authorising officer by delegation to effect that recovery.
25 On 15 January 2021, the Director-General of the Parliament’s Directorate-General (DG) for Finance, as the Parliament’s authorising officer by delegation, issued the debit note ordering the recovery of a sum in the amount of EUR 196 199.84 and requesting that the appellant pay that sum by 11 March 2021 at the latest. That decision and that note were communicated to the appellant on 3 March 2021.
The procedure before the General Court and the judgment under appeal
26 By application lodged at the Registry of the General Court on 7 May 2021, the appellant brought an action for annulment of the decision at issue and the debit note. In support of that action, she relied on five pleas in law, alleging (i) infringement of Article 137 of the CEOS, (ii) failure to apply the correct standard for ‘undue payment’ under Articles 33 and 68 of the Implementing Measures, (iii) infringement of a Member’s right to freedom and independence, (iv) failure to state reasons for the decision at issue and (v) errors of assessment.
27 As is apparent from paragraph 40 of the judgment under appeal, the General Court found that the first and second pleas in that action, examined together, had to be rejected for the reasons set out in paragraphs 22 to 39 of that judgment.
28 In that context, in paragraph 33 of the judgment, the General Court held that, contrary to what the appellant had claimed, Article 137 of the CEOS, read in conjunction with Article 85 of the Staff Regulations, was not applicable, since those articles were intended to apply to recovery procedures initiated by the Parliament in respect of an accredited parliamentary assistant, whereas the recovery procedure under Article 68 of the Implementing Measures concerned the parliamentary assistance allowance in question and was conducted in respect of the appellant as a former Member.
29 Furthermore, in paragraph 35 of that judgment, the General Court pointed out that, contrary to what the appellant had claimed, no distinction could be drawn in the case-law between, on the one hand, a restrictive interpretation of the concept of ‘assistance’, within the meaning of Article 33 of the Implementing Measures, which would involve proving specific activities provided in the context of that assistance, and, on the other hand, a broad interpretation of that concept, according to which the appellant would merely have to prove the existence of a proper engagement of A and an employment relationship.
30 In paragraph 60 of the judgment under appeal, the General Court held that the third plea must be rejected, for the reasons set out in paragraphs 48 to 59 of that judgment. In particular, it is apparent from paragraph 55 of that judgment that, for the reasons set out in paragraphs 48 to 54 thereof, the General Court took the view that the decision at issue, by ordering the recovery from the appellant of sums unduly paid by way of parliamentary assistance allowance, did not infringe her freedom and independence. Furthermore, in response to the appellant’s claims that the recovery procedure was likely to cause her to become bankrupt, was ‘punitive’ in nature, even though she did not personally receive the sums whose recovery was sought, had a ‘chilling’ effect on Members in the absence of independent bodies overseeing it and should have been based on another regime provided for by the Financial Regulation, the General Court observed, in paragraph 58 of the judgment under appeal, that the Secretary-General of the Parliament had merely implemented the applicable legal framework, consisting in particular of the Implementing Measures.
31 After also rejecting, in paragraph 80 of the judgment under appeal, the fourth plea in law, the General Court examined, in paragraphs 81 to 157 thereof, the fifth plea in law and concluded, in paragraph 158 of that judgment, that the latter plea must be upheld in so far as it concerned the months of May, July and November 2016, June 2017 and March, April and November 2018, and the fifth plea must be rejected as to the remainder.
32 Accordingly, as is apparent from paragraph 159 of the judgment under appeal, the General Court found that the decision at issue and, consequently, the debit note must be annulled in so far as they related to sums paid for May, July and November 2016, June 2017 and March, April and November 2018, and the remainder of the action must be dismissed.
Forms of order sought by the parties
33 The appellant claims that the Court should:
– set aside in part the judgment under appeal, to the extent that it affirms in part the validity of the decision at issue and the debit note;
– annul the decision at issue and the debit note in their entirety; and
– order the Parliament to pay the costs of the proceedings both before the General Court and the Court of Justice.
34 The Parliament contends that the Court should dismiss the appeal and order the appellant to pay the costs.
The appeal
35 In support of her appeal, the appellant relies on three grounds of appeal, alleging (i) failure to apply the ‘knowledge’ test under Article 137 of the CEOS; (ii) an error of law in the application of Article 33 of the Implementing Measures and (iii) infringement of the principle of the freedom and independence of Members.
36 It is appropriate to examine the second ground of appeal first.
The second ground of appeal, alleging an error of law in the application of Article 33 of the Implementing Measures
Arguments of the parties
37 The appellant submits that it is apparent from paragraph 35 of the judgment under appeal that the General Court relied on a misinterpretation of the term ‘assistance’ in Article 33 of the Implementing Measures. According to the appellant, that article requires the Parliament to draw a distinction between the expenses incurred by Members and the salaries of parliamentary assistants. She argues that the employment contract concluded with a parliamentary assistant gives rise to a legal relationship under which compensation is due at monthly intervals. Consequently, the payment of a parliamentary assistant’s salary cannot be classified as ‘undue payment’ on the sole ground that the assistant concerned failed to perform a task properly in a calendar month, as she claims the General Court erroneously held. Such a classification is possible only in accordance with the terms of the employment relationship concerned. In that regard, the appellant recalls that the CEOS contain provisions for disciplinary action and, if necessary, termination of a parliamentary assistant’s contract.
38 The Parliament contends, primarily, that the second ground of appeal is inadmissible and, in any event, ineffective. It argues that the appellant misreads paragraph 35 of the judgment under appeal and relies on arguments identical to those which she put forward at first instance, so that the second ground of appeal amounts in reality to no more that a request for re-examination of a plea submitted before the General Court. Furthermore, even if paragraph 35 of the judgment under appeal were vitiated by an error of law, such an error would not be sufficient to justify setting aside that judgment.
39 In the further alternative, the Parliament contends that the second ground of appeal should be rejected as unfounded.
Findings of the Court
40 As is apparent from paragraphs 17 and 18 of the judgment under appeal, in the context of the first and second pleas in her action before the General Court, the appellant claimed, inter alia, that the decision at issue was based on a misinterpretation of Article 33 of the Implementing Measures. She argued, in essence, that it followed from that article that it is sufficient for a Member to establish the existence of an employment relationship with his or her parliamentary assistant for the Parliament to meet the costs of the assistance provided. In that context, the appellant relied on the coexistence in the case-law of a restrictive interpretation of the concept of ‘assistance’, within the meaning of that Article 33, and of a broad interpretation thereof.
41 Those arguments of the appellant were rejected in paragraphs 35 to 37 of the judgment under appeal, which led the General Court to hold, in paragraph 38 of that judgment, that the Parliament had correctly established in the decision at issue that it was for the appellant to adduce evidence of her parliamentary assistant’s activity. In particular, in paragraph 35 of that judgment, the General Court rejected the appellant’s argument alleging coexistence, in the case-law, of a restrictive interpretation of the concept of ‘assistance’, within the meaning of Article 33 of the Implementing Measures, and a broad interpretation of that concept.
42 It follows that any error of law vitiating paragraph 35 of the judgment under appeal would call into question the validity of the finding in paragraph 38 of that judgment and, therefore, be capable of justifying the setting aside of that judgment. Therefore, contrary to the Parliament’s submissions, the second ground of appeal is not ineffective.
43 In addition, it should be noted that the question whether, in accordance with Article 33 of the Implementing Measures, a Member is to adduce proof that actual assistance was provided by his or her parliamentary assistant, failing which that Member must reimburse to the Parliament, in accordance with Article 68 of those measures, the remuneration received by that assistant, constitutes a question of law which may be reviewed by the Court of Justice on appeal.
44 The fact that, in that context, the appellant reiterates, in essence, the arguments which she put forward before the General Court cannot justify rejecting the second ground of appeal as inadmissible. Provided that the appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be discussed again at the stage of an appeal. Indeed, if an appellant could not thus base his or her appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (judgment of 4 April 2019, OZ v EIB, C‑558/17 P, EU:C:2019:289, paragraph 34 and the case-law cited).
45 Furthermore, the question whether the appellant misreads paragraph 35 of the judgment under appeal relates not to the assessment of the admissibility of the second ground of appeal, but to its merits.
46 It follows that the second ground of appeal cannot be rejected as inadmissible.
47 As regards the merits of that ground of appeal, it must be borne in mind that, according to the case-law, 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 of 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 (order of 21 May 2019, Le Pen v Parliament, C‑525/18 P, EU:C:2019:435, paragraph 37 and the case-law cited).
48 It is apparent from that case-law, first, that, for the purposes of the application of the abovementioned provisions, no distinction can be drawn between expenses linked to parliamentary assistance and other expenses incurred by Members, which may be defrayed by the Parliament. The General Court therefore did not err in law in denying, in paragraph 35 of the judgment under appeal, the coexistence, in the case-law, of two different readings of the concept of ‘assistance’ for the purposes of Article 33 of the Implementing Measures.
49 Secondly, it follows from the case-law cited in paragraph 47 of the present judgment that the mere fact that a salary was paid to a parliamentary assistant under an employment contract concluded between that assistant and the Parliament is not sufficient to prove that that salary corresponds to assistance which is necessary and directly linked to the exercise of a Member’s mandate.
50 Contrary to what the appellant claims, proving the reality of the assistance provided and proving the necessary and direct nature of the link between that assistance and the exercise of the parliamentary mandate of the Member concerned, for the purposes of Article 33(2) of the Implementing Measures, in no way requires the quality of the work carried out to be taken into account. If it is shown that a parliamentary assistant has actually carried out work intended to provide the Member concerned with assistance which is necessary and directly linked to the exercise of his or her mandate, the Parliament is required to bear the costs of that assistance, even if the quality of the work of the assistant concerned is unsatisfactory. There is nothing in the judgment under appeal, which makes no mention of the quality of the work carried out by a parliamentary assistant, to justify the view that the General Court reached a different conclusion with regard to that issue.
51 As regards the possibility, referred to by the appellant, of initiating disciplinary action against a parliamentary assistant who does not carry out the tasks assigned to him or her, or of terminating the contract concluded with him or her, it should be noted that, admittedly, in so far as the parliamentary assistant concerned is bound by a contract to the Parliament, the Parliament is entitled, in accordance with the relevant provisions of the CEOS, not only to adopt, with regard to that assistant, disciplinary measures or terminate the assistant’s contract, but also to refuse to pay that assistant his or her salary in the event of his or her unauthorised absence from the place of work without prior authorisation, within the meaning of Article 60 of the Staff Regulations, applicable to parliamentary assistants in accordance with Article 131(5) of the CEOS, and, where appropriate, to request that assistant, in accordance with Article 85 of the Staff Regulations, applicable to parliamentary assistants in accordance with Article 137 of the CEOS, to reimburse any sum overpaid in that regard.
52 It is still necessary, however, for the Member concerned to inform the Parliament of an unauthorised absence of the parliamentary assistant concerned or of any other failure by that assistant to comply with his or her obligations and duties. In accordance with Article 131(2) of the CEOS, it is the Member himself or herself who determines the weekly working hours of his or her parliamentary assistant and who is therefore the only one in a position to know whether that parliamentary assistant is absent, without permission, from his or her place of work. Moreover, the work which a parliamentary assistant is supposed to carry out is of such a kind that only the Member concerned is in a position to know whether that work has actually been carried out and whether, if necessary, the initiation of disciplinary action or even termination of the contract concluded with the parliamentary assistant concerned should be envisaged.
53 It follows from all the foregoing considerations that the General Court did not err in law in holding, in essence, in paragraphs 35 to 38 of the judgment under appeal, that, in accordance with Article 33(1) and (2) of the Implementing Measures, it is for a Member to prove to the Parliament that his or her parliamentary assistant, recruited at the Member’s request by the Parliament in accordance with Article 5a of the CEOS, provided him or her with the assistance which was necessary and directly linked to the exercise of his or her mandate, failing which the Parliament must adopt, in accordance with Article 68(1) and (2) of those measures, a decision to recover the costs incurred in respect of that assistance.
54 It follows that the second ground of appeal must be rejected as unfounded.
The first ground of appeal, alleging failure to apply the ‘knowledge’ test for the purposes of Article 137 of the CEOS
Arguments of the parties
55 The appellant claims that, in accordance with Article 137 of the CEOS, the recovery from a Member of a parliamentary assistant’s salary requires prior knowledge, on the part of that Member, of the fact that the salary was overpaid. According to the appellant, by rejecting, in paragraph 33 of the judgment under appeal, the arguments which she had put forward to that effect at first instance, the General Court relied on a misinterpretation of Articles 34 and 68 of the Implementing Measures.
56 In that regard, the appellant claims that the CEOS is integrated into the Implementing Measures, as is shown by Article 34 of those measures, which refers to Article 5a of the CEOS. Therefore, any recovery from a Member of the salary of an accredited parliamentary assistant would have to meet the criteria laid down in Article 85 of the Staff Regulations, to which Article 137 of the CEOS refers. In that regard, the appellant takes the view that a Member must be classified as a ‘recipient’, within the meaning of Article 85 of the Staff Regulations, of the benefits from the employment of an accredited parliamentary assistant. It follows that, in order to be the subject of a recovery order, a Member must have been aware that there was no due reason for the payment concerned, or if the fact of the overpayment was patently such that the Member could not have been unaware of it.
57 In her opinion, the logic behind the recovery mechanism concerned is thus both simple and consistent with the principles of fairness. It would be manifestly unfair to make Members bear both the financial and moral burden entailed by the recovery of the salary of an accredited parliamentary assistant, on the basis of a ‘system of strict liability’, which, according to the appellant, is not in any way provided for in Article 68 of the Implementing Measures.
58 The appellant claims that that finding is confirmed by an examination of the history of the relevant provisions. The Implementing Measures and the provisions of the CEOS relating to accredited parliamentary assistants were adopted almost at the same time and, as is shown by recital 5 of Regulation No 160/2009, pursue a common objective, namely to address the problem of lack of transparency and accountability in the provision of parliamentary assistance, which has caused serious problems in the past. Recital 16 of that regulation is an additional indication that the CEOS, the Implementing Measures and the Financial Regulation were intended to form a single and coherent system of financial accountability.
59 The Parliament contends, primarily, that the first ground of appeal is inadmissible, in so far as it constitutes, in essence, a mere summary of the first plea in law of the appellant’s action before the General Court, is based on a misreading or even a distortion of the judgment under appeal and in so far as the appellant does not state, in a sufficiently coherent and intelligible manner, what error of law she claims the General Court committed.
60 In any event, the Parliament contends that the first ground of appeal should be rejected as unfounded.
Findings of the Court
61 Contrary to the Parliament’s submissions, the first ground of appeal cannot be rejected as inadmissible. The error of law which the appellant claims the General Court committed is evident from a reading of the arguments. In addition, it is apparent from the case-law cited in paragraph 44 of the present judgment that it is open to the appellant to repeat, at the appeal stage, arguments relied on at first instance. Lastly, as is apparent from paragraph 45 of the present judgment, assuming that the first ground of appeal is based on a misreading of the judgment under appeal, such a circumstance would be capable of justifying the rejection of that ground of appeal as unfounded and would not affect its admissibility.
62 As regards the examination of the substance of the first ground of appeal, it must be held that the General Court did not err in law in finding, in paragraph 33 of the judgment under appeal, that Article 137 of the CEOS, which refers to Article 85 of the Staff Regulations, is intended to apply to recovery procedures initiated by the Parliament in respect of an accredited parliamentary assistant and does not apply to a Member, who is not covered by the CEOS.
63 Even if the appellant’s arguments summarised in paragraph 16 of the judgment under appeal and reiterated, for the most part, in the appeal may be understood as supporting the application by analogy of the criteria laid down in Article 85 of the Staff Regulations, where it is envisaged that a request for recovery under Article 68(2) of the Implementing Measures should be sent to a Member, such an this line of argument cannot succeed, since the General Court did not err in law in rejecting it.
64 First, as is apparent from the case-law cited in paragraph 47 of the present judgment, it is for the Member concerned to prove that the sums paid by the Parliament to his or her accredited parliamentary assistant correspond to assistance which was necessary and directly linked to the exercise of his or her mandate, failing which those sums must be regarded as having been ‘unduly paid’, within the meaning of Article 68(1) of the Implementing Measures, and be the subject of a recovery decision, in accordance with paragraph 2 of that article.
65 Secondly, as noted in paragraph 52 of the present judgment, the Member concerned is the only one in a position to know whether his or her accredited parliamentary assistant does not provide him or her with the necessary assistance which is directly linked to the exercise of his or her mandate, or whether that parliamentary assistant is absent, without permission, from his or her place of work, and to notify the Parliament accordingly so that the Parliament may adopt, with regard to that assistant, the appropriate measures provided for by the CEOS, including, if necessary, the suspension of payment of his or her salary or the termination of his or her contract.
66 Therefore, the case of a Member who is not aware of the undue payment of his or her parliamentary assistant’s salary may be excluded from the outset, as can a possible application, by analogy, of Article 137 of the CEOS to Members.
67 Furthermore, it is apparent from the considerations set out in paragraphs 64 and 65 of the present judgment that, contrary to what the appellant submits, it cannot be claimed that the Implementing Measures establish a ‘system of strict liability’ of Members for the recovery of sums unduly paid to their assistants.
68 It follows from all the foregoing that the first ground of appeal must be rejected as unfounded.
The third ground of appeal, alleging infringement of the principle of the freedom and independence of Members
Arguments of the parties
69 The appellant claims that the General Court erred in law in rejecting, in paragraphs 45 to 60 of the judgment under appeal, her argument that the ‘system of strict liability’ of Members for any innocent errors in their working relationship with their parliamentary assistants is contrary to the Members’ right to freedom and independence in accordance with Article 2 and Article 21(2) of the Statute for Members.
70 According to the appellant, it is apparent from Article 21 of the Statute for Members that parliamentary assistants are to be employed by Members. That employment relationship secures the conditions for mutual trust in a long-term relationship, expected between the Member concerned and his or her assistant. A Member should not be forced to change service providers at frequent intervals.
71 The appellant refers to paragraph 58 of the judgment under appeal, according to which ‘the Secretary-General of the Parliament has merely implemented the applicable legal framework, consisting in particular of the [I]mplementing [M]easures, the legality of which, moreover, has recently been confirmed by the [General] Court’. That sentence shows, in the appellant’s view, that the General Court failed to take into account the very substance of the Members’ right to freedom and independence as the relevant legal framework that supplements the Implementing Measures and guides their interpretation and application. In accordance with the principles of representative democracy, the provisions concerning the recovery of expenses incurred by Members should be interpreted in such a way as not to undermine the freedom and independence of Members, who must be protected against ordinary risks that may influence their judgment.
72 By the judgment under appeal, the General Court endorsed the ‘system of strict liability’ established by the Parliament, according to which, whenever a Member cannot produce evidence capable of demonstrating that his or her parliamentary assistant had performed adequately for a particular calendar month, the Parliament is entitled to assume that that assistant’s salary was ‘unduly paid’ for that calendar month and could be recovered from that Member. In that regard, the appellant submits that, in accordance with Article 92 of the Financial Regulation, EU officials may be held liable only in cases of intentional harm or gross negligence. The appellant submits that the General Court took the view that Members should be less protected than EU civil servants against innocent errors.
73 In addition, she claims that the ‘system of strict liability’ established by the Parliament is monitored not by an independent regulator but by other Members, most probably political opponents of the Member concerned. Members cannot be truly free and independent if they could be financially ruined by the effects of a decision taken by their political opponents because of an innocent error in their employment relationship with a parliamentary assistant.
74 The Parliament contends, primarily, that the third ground of appeal should be rejected as manifestly inadmissible and, in any event, as unfounded.
Findings of the Court
75 Contrary to the Parliament’s submissions, the third ground of appeal cannot be rejected as inadmissible. First of all, as noted in paragraph 44 of the present judgment, it is open to the appellant to repeat, at the appeal stage, arguments relied on at first instance. Next, the arguments put forward by the appellant in the context of that third ground of appeal are not limited, as the Parliament maintains, to criticising paragraph 58 of the judgment under appeal. Accordingly, it is not necessary to rule on whether those arguments must be regarded as being directed against a ground included in that judgment purely for the sake of completeness which cannot lead to the judgment being set aside and which is therefore ineffective. Lastly, as noted in paragraph 45 of the present judgment, assuming that that third ground of appeal is based on a misreading of the judgment under appeal, that circumstance would be capable of justifying the rejection of that ground of appeal as unfounded and does not affect its admissibility.
76 As regards the examination of the merits of the third ground of appeal, it should be noted that the arguments relied on by the appellant in the context of that ground of appeal are based on a twofold erroneous premiss, in that the appellant claims, first, that the Parliament put in place a ‘system of strict liability’ of Members for the recovery of sums unduly paid to their accredited parliamentary assistants and, secondly, that the Parliament, by the decision at issue, and then the General Court, by the judgment under appeal, wrongly found that the remuneration paid to such an assistant was to be regarded as unduly paid if that assistant did not prove to have ‘performed adequately’.
77 First, it is apparent from paragraphs 64 and 67 of the present judgment that, contrary to what the appellant claims, the provisions relating to the recovery of sums unduly paid by way of parliamentary assistance allowance do not establish a ‘system of strict liability’. Secondly, it is apparent from paragraph 50 of the present judgment that, in order to demonstrate that the parliamentary assistance expenses borne by the Parliament were not unduly paid, a Member need only prove that those expenses correspond to work actually carried out by his or her assistant, intended to provide that Member with assistance which is necessary and directly linked to the exercise of his or her mandate, regardless of the quality of that work. As is also noted in that paragraph of the present judgment, there is nothing in the judgment under appeal to indicate that the General Court reached a different conclusion with regard to that issue.
78 Moreover, it should be noted, as the General Court did in paragraph 52 of the judgment under appeal, that the Parliament’s defrayal of Members’ parliamentary assistance expenses is intended precisely to strengthen the Members’ freedom and independence, in so far as they will not need to use other sources of funding, possibly private sources, in order to cover those expenses.
79 However, in order to prevent abuse, Article 33(1) and (2) of the Implementing Measures requires Members to prove that the expenses borne by the Parliament correspond to actual assistance, which is necessary and directly linked to the exercise of their mandate. That provision therefore pursues a legitimate aim and the obligation it imposes on Members does not go beyond what is necessary and appropriate to achieve that aim. In that regard, it should be borne in mind that that obligation may be satisfied by the production of any relevant evidence in the possession of the Member (see, to that effect, order of 21 May 2019, Le Pen v Parliament, C‑525/18 P, EU:C:2019:435, paragraph 38).
80 As regards the appellant’s argument that the defrayal of parliamentary assistance expenses is monitored not by an independent regulator, but by other Members, who might be political opponents of the Member concerned, it should be noted that, in accordance with Article 68(2) of the Implementing Measures, recovery decisions are to be taken by the Secretary-General of the Parliament, who is not a Member.
81 Furthermore, and in any event, Article 2 of the Statute for Members, which enshrines their freedom and independence, cannot be interpreted as precluding, as a matter of principle, any involvement of Members of Parliament in the adoption of the rules and, possibly, the measures relating to the defrayal of parliamentary assistance expenses, bearing in mind that any Member who is faced with a decision to recover such expenses incurred by the Parliament on his or her behalf may challenge that decision before the Courts of the European Union, by putting forward any appropriate pleas and arguments, including, as the case may be, the lack of impartiality of the persons who were involved in the adoption of that decision.
82 It follows from all the foregoing considerations that the General Court did not err in law in holding, in paragraph 55 of the judgment under appeal, that the decision at issue, by ordering the recovery of sums unduly paid as parliamentary assistance allowance under the procedure laid down by the relevant provisions, did not infringe the appellant’s freedom and independence.
83 Consequently, the third ground of appeal must be rejected as unfounded and, accordingly, the appeal must be dismissed in its entirety.
Costs
84 In accordance with Article 184(2) of Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
85 Under Article 138(1) of those rules of procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
86 Since the appellant has been unsuccessful and the Parliament has applied for costs, the appellant must be ordered to bear her own costs and to pay those incurred by the Parliament.
On those grounds, the Court (Tenth Chamber) hereby:
1. Dismisses the appeal;
2. Order SN to bear her own costs and to pay those incurred by the European Parliament.
Delivered in open court in Luxembourg on 4 July 2024.
A. Calot Escobar | | Z. Csehi |
Registrar | | President of the Chamber |