JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(First Chamber)
6 October 2015 (*)
(Civil service — Accredited parliamentary assistants — Article 266 TFEU — Measures to comply with a judgment of the Tribunal annulling a decision — Annulment of a dismissal decision — Annulment of a decision rejecting a request for assistance made under Article 24 of the Staff Regulations — Scope of the duty to provide assistance where there is prima facie evidence of harassment — Obligation on the AECE to conduct an administrative inquiry — Option for the official or staff member to bring proceedings under national law — Advisory Committee on Harassment and its Prevention at the Workplace dealing with harassment complaints by accredited parliamentary assistants against Members of the European Parliament — Role and powers — Material and non-material harm)
In Case F‑132/14,
ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,
CH, former accredited parliamentary assistant at the European Parliament, residing in Brussels (Belgium), represented by L. Levi, C. Bernard-Glanz and A. Tymen, lawyers,
applicant,
v
European Parliament, represented by E. Taneva and M. Dean, acting as Agents,
defendant,
THE CIVIL SERVICE TRIBUNAL
(First Chamber)
composed of R. Barents, President, E. Perillo and J. Svenningsen (Rapporteur), Judges,
Registrar: W. Hakenberg,
having regard to the written procedure,
having regard to the decision taken, with the agreement of the parties, to proceed to judgment without a hearing, under Article 59(2) of the Rules of Procedure,
gives the following
Judgment
1 By application lodged at the Registry of the Tribunal on17 November 2014, CH brought the present action for:
– annulment of the European Parliament’s decision of 3 March 2014, in so far as that institution refused, by way of measures necessary to comply with the judgment of 12 December 2013 in CH v Parliament (F‑129/12, EU:F:2013:203, ‘the judgment in CH’), within the meaning of Article 266 TFEU, to initiate an administrative inquiry with a view to establishing the reality of the allegations against a Member of the European Parliament set out in her request for assistance made on 22 December 2011;
– annulment of the European Parliament’s decision of 2 April 2014, in so far as in that decision the Parliament refused to pay her the sum of EUR 5 686 corresponding to the difference in salary to which the applicant considered she was entitled under measures necessary to comply with the judgment in CH within the meaning of Article 266 TFEU;
– annulment of the European Parliament’s decision of 4 August 2014, by which the Parliament rejected the applicant’s complaint against the two abovementioned decisions of 3 March and 2 April 2014;
– an order that the European Parliament should pay the applicant the sums of EUR 144 000 and EUR 60 000 in compensation for the applicant’s material and non-material harm.
Legal context
1. Treaty on the Functioning of the European Union
2 Article 266 TFEU provides that ‘the institution whose act has been declared void [by the EU Court] or whose failure to act has been declared contrary to the Treaties shall be required to take the necessary measures to comply with the judgment [annulling the act]’. That provision also states that ‘this obligation shall not affect any obligation which may result from the application of the second paragraph of Article 340 [TFEU]’, which provides that, ‘in the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties’.
2. The Staff Regulations of Officials of the European Union
3 Article 12a(3) of the Staff Regulations of Officials of the European Union, in the version applicable to the proceedings (‘the Staff Regulations’), provides:
“‘Psychological harassment” means any improper conduct that takes place over a period, is repetitive or systematic and involves physical behaviour, spoken or written language, gestures or other acts that are intentional and that may undermine the personality, dignity or physical or psychological integrity of any person.’
4 Article 24 of the Staff Regulations provides:
‘The Union shall assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties.
It shall jointly and severally compensate the official for damage suffered in such cases, in so far as the official did not either intentionally or through grave negligence cause damage and has been unable to obtain compensation from the person who did cause it.’
3. The Conditions of Employment applicable to Other Servants of the European Union
5 The Conditions of Employment applicable to Other Servants of the European Union (‘Conditions of Employment’), in the version applicable to the proceedings, applies, according to Article 1 thereof, ‘to servants engaged under contract by the Union’ and, in particular, to accredited parliamentary assistants (‘APAs’). In that regard, Article 5a of the Conditions of Employment states:
‘For the purposes of these Conditions of employment, “ACAs” means persons chosen by one or more Members and engaged by way of direct contract by the … Parliament to provide direct assistance, in the premises of the … 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 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)].’
6 The Conditions of Employment contain Title VII, entitled ‘Parliamentary Assistants’, devoted to APAs, comprising Articles 125 to 139, for the application of which, under Article 125(1) the Parliament is to ‘adopt implementing measures by internal decision’.
7 Article 127 of the Conditions of Employment provides:
‘Articles 11 to 26a of the Staff Regulations shall apply by analogy. Having strict regard, in particular, to the specific nature of the functions and duties of [APAs] and the mutual trust which has to characterise the working relationship between them and the Member or Members of the European Parliament whom they assist, the implementing measures relating to this area, adopted pursuant to Article 125(1) [of the Conditions of Employment], shall take account of the specific nature of the working relationship between Members and their [APAs].’
8 The first sentence of Article 128(2) of the Conditions of Employment provides that an ‘[APA] shall be selected by the Member or Members of the European Parliament whom he is to assist’.
9 According to Article 13(1) of the decision of the Bureau of the Parliament of 14 April 2014, adopted under Article 125(1) of the Conditions of Employment, which is identical in that regard to Article 13(1) of the preceding amended decision of the Bureau of the Parliament of 9 March 2009, APAs are to be recruited by the Parliament at the express request of the Member(s) whom they are to assist.
4. Internal rules for advisory committees on harassment and its prevention at the workplace
10 On 21 February 2006, the Parliament adopted ‘Internal Rules for the Advisory Committee on Harassment and its Prevention at the Workplace’ with a view to implementing Article 12a of the Staff Regulations (‘the Internal Rules on Harassment’). Article 9 of those internal rules states that any staff member of that institution who is experiencing a problem which might constitute harassment or who considers that a problem of this kind exists in his/her working environment may report the matter to the Advisory Committee on Harassment and its Prevention at the Workplace (‘the General Advisory Committee’), which comprises six members appointed by the Secretary-General of the European Parliament, two members appointed by the Staff Committee and one appointed by the institution’s Medical Service. Pursuant to Article 11 of the Internal Rules on Harassment, a staff member who feels that he/she is being subjected to harassment must be seen by the General Advisory Committee within 10 working days of his/her request. Under Articles 12 to 14 of the Internal Rules on Harassment, the General Advisory Committee: (i) may, if it deems it advisable, make recommendations to management staff with a view to resolving the problem; (ii) must, in order to ensure that the matter is followed up, remain in contact with the staff member concerned and, if necessary, with his or her superiors; and, lastly, (iii) if the problem persists, is to forward a confidential report to the Secretary-General of the European Parliament containing proposals on the action(s) to be taken and, where appropriate, may ask him for instructions in order to conduct a detailed investigation.
11 On 14 April 2014, in view of the specific situation of APAs, as highlighted by the judgment in CH, the Bureau of the European Parliament adopted internal rules in order to set up an Advisory Committee on Harassment and its Prevention at the Workplace competent to entertain disputes between APAs and Members of the European Parliament (‘the APA rules on harassment’). The Advisory Committee on Harassment and its Prevention at the Workplace competent to entertain disputes between APAs and Members of the European Parliament (‘the Special APA Advisory Committee’) comprises five members, appointed by the President of the European Parliament: three members are Quaestors from the institution — the Parliament’s Quaestors, five in number and meeting as a college, are Members of the European Parliament elected by their peers to manage administrative and financial matters directly concerning Members; one member is appointed by the APA committee referred to in the second subparagraph of Article 126(2) of the Conditions of Employment, whilst the last member, the chair of the General Advisory Committee, represents the Parliament’s administration. The principal tasks of the Special APA Advisory Committee, chaired by one of the Quaestors, are to ‘prevent and/or stop any harassment of APAs’ and ‘play a role of mediation and information’.
12 In that regard, under Article 10 of the Internal APA Rules on Harassment, the Special APA Advisory Committee, having interviewed the interested parties — the alleged victim and the alleged harasser –, is to forward a confidential report to the College of Quaestors. The confidential report must contain a description of the allegations, the content of the proceedings, the conclusions reached by the Special APA Advisory Committee, and proposals on the action to be taken, where appropriate asking the College of Quaestors to instruct the Special APA Advisory Committee to conduct a detailed investigation. Article 11 of the Internal APA Rules on Harassment provides that ‘if it is instructed to conduct such an investigation, the [Special APA Advisory] Committee shall forward its findings and any recommendations to the College of Quaestors’, whilst Article 12 of the same internal rules provides inter alia that the Quaestors are to ‘notify the [Special APA Advisory] Committee in writing of the measures they intend to take, including, if appropriate, any recommendation to the President [of the European Parliament] for a sanction to the Member concerned, according to Articles 9 and 153 of the European Parliament’s Rules of Procedure …’
Background to the dispute
1. The facts that gave rise to the judgment in CH
13 On 1 October 2004, the applicant was engaged as an APA by Mr B., Member of the European Parliament, under a contract that was due to expire at the end of the 2004/2009 parliamentary term.
14 When Mr B.’s term of office came to an end, the applicant was engaged by the Parliament, from 1 December 2007 until the end of the parliamentary term, as an APA to assist Ms P., a new Member of the European Parliament who succeeded Mr B. for the remainder of the term of office.
15 With effect from 1 August 2009, the applicant was employed by the Parliament as an APA to assist Ms P. during the 2009/2014 parliamentary term. She was appointed at grade 14 in function group II. However, under a new contract, concluded on 1 September 2010, which replaced the previous contract, the applicant was engaged to carry out the same duties but this time at grade 11 in function group II (‘the contract of employment’ or ‘the APA contract’).
16 From 27 September 2011, the applicant was granted sick leave, which was extended until 19 April 2012.
17 On 28 November 2011, the applicant informed the General Advisory Committee of her difficulties at work as a result, she alleged, of Ms P.’s behaviour towards her.
18 By email of 6 December 2011, the applicant consulted the members of the General Advisory Committee regarding the steps to be taken in order to ‘lodge a complaint’. Then, by email of 12 December 2011 and in order to illustrate the harassment she considered she suffered as a result of the actions of the Member she assisted, the applicant sent to each of the members of that committee and to the Secretary-General of the European Parliament, the email she had sent to Ms P. the same day, in which she described to that Member her state of health. Lastly, the applicant contacted the chair of the General Advisory Committee, by email of 21 December 2011, requesting a meeting.
19 On 22 December 2011, the applicant submitted a request for assistance to the Secretary-General of the European Parliament under Article 24 of the Staff Regulations (‘the request for assistance’), in which she claimed that she was the victim of psychological harassment by Ms P. and sought the adoption of distancing measures and the initiation of an administrative inquiry.
20 On 6 January 2012, Ms P. sent to the Staff Recruitment and Transfer Unit of the Directorate for Human Resources Development of the Directorate-General for Personnel of the European Parliament a written request for the termination of the applicant’s APA contract (‘the request for termination’). On 18 January 2012, Ms P. confirmed the request for termination.
21 By decision of the Parliament’s authority empowered to conclude contracts of employment (‘AECE’) of 19 January 2012, the applicant’s APA contract was terminated with effect from 19 March 2012 on the alleged grounds of a breakdown in the relationship of trust (‘the dismissal decision’). The applicant was not required to work out her two-month period of notice from 19 January to 19 March 2012. In support of the ground alleging breakdown in the relationship of trust, the AECE maintained that Ms P. had informed it that the applicant did not have the necessary competencies to follow the work of some of the parliamentary committees on which she sat and that Ms P. had also complained of unacceptable behaviour on the part of the applicant both towards herself and towards other Members and their APAs.
22 By letter of 15 March 2012, the request for assistance was rejected by the Director-General of the Directorate-General for Personnel, acting as the AECE, on the grounds that, irrespective of whether an APA was entitled to receive assistance under Article 24 of the Staff Regulations, the applicant’s request for assistance, concerning the adoption of distancing measures and the conduct of an administrative inquiry, had become redundant since, in the light of the dismissal decision which had been taken in the meantime, the applicant was no longer employed at the Parliament (‘the decision rejecting the request for assistance’).
23 On 30 March 2012, the applicant submitted to the Secretary-General of the European Parliament a complaint under Article 90(2) of the Staff Regulations, against the dismissal decision. On 22 June 2012, the applicant also brought a complaint under the same provision of the Staff Regulations against the decision rejecting the request for assistance.
24 By decision of 20 July 2012, the Secretary-General of the European Parliament partially upheld the complaint against the dismissal decision, deciding to defer the date on which the applicant’s APA contract ended to 20 June 2012 by reason of her sick leave, which was certified until 19 April 2012. However, he upheld the validity of the dismissal decision, citing the impossibility, as recognised in case law, in particular in paragraph 149 of the judgment of 7 July 2010 in Tomas v Parliament (F‑116/07, F‑13/08 and F‑31/08, EU:F:2010:77), of reviewing the existence or loss of a relationship of trust, an impossibility which extends in part to review of the grounds advanced to justify the non-existence or loss of that relationship of trust.
25 In any event, the Secretary-General of the European Parliament took the view that the applicant had not provided evidence of manifest errors with regard to the facts alleged to justify a breakdown in the relationship of trust, although the Parliament had been aware of several professional shortcomings on the part of the applicant, inter alia in connection with the expediency of drafting legislative amendments to be submitted in a dossier, discourtesy which she showed towards a Member of the European Parliament from a Member State other than Ms P.’s own, or the applicant’s insolent behaviour towards the new APA recruited to assist Ms P. and impoliteness towards that APA in the presence of the chief executive officer of a company. A teacher accompanying a group of students on a visit to the institution also complained of the applicant’s impoliteness.
26 Lastly, according to the Secretary-General of the European Parliament, the fact that the applicant had made a request for assistance could not prevent the dismissal decision, which the manifest deterioration in relations between Ms P. and the applicant rendered inevitable, from being taken.
27 Furthermore, by decision of 8 October 2012, the Secretary-General of the European Parliament, in his capacity as the AECE, rejected the complaint made against the decision rejecting the request for assistance, stating that, while he ‘had informed [the applicant], in support of the AECE’s dismissal decision, of [her] unacceptable behaviour … and of specific, verifiable acts that had taken place in the presence of witnesses, [the applicant] [was making] assertions with no evidence to support them’. The applicant was also told that, generally, the measures she asked for were ‘in any case not compatible with the specific nature of the close relationship based on trust which is required between a Member of the European Parliament and her [APA]’, that, in particular, a distancing measure would make no sense since it would have the effect of preventing any working relationship between the Member and her APA and that, at a practical level, the Parliament could not reassign the applicant to another Member of the institution since only that Member can ask the AECE to recruit an APA of his choosing. The Secretary-General of the European Parliament also stated, with regard to the request to open an administrative inquiry, that the judgment of 8 February 2011 in Skareby v Commission (F‑95/09, EU:F:2011:9), relied upon in that regard by the applicant, could not be transposed to the present case, since Members of the European Parliament are not subject to the Staff Regulations, including therefore Article 12a thereof, and that they cannot be subjected to a disciplinary measure or be compelled by the AECE to take part in an administrative inquiry, although such participation would be essential.
28 By application received at the Registry of the Tribunal on 31 October 2012 and registered as Case F‑129/12, the applicant sought, in essence, annulment of the dismissal decision and of the decision rejecting the request for assistance, and also an order that the Parliament should pay her the sum of EUR 120 000 in damages.
29 On 12 December 2013, by the judgment in CH, against which no appeal was brought and which is accordingly final, the Tribunal annulled the dismissal decision and the decision rejecting the request for assistance. Furthermore, ‘taking into account the questionable circumstances in which the dismissal decision and the decision rejecting the request for assistance were taken’, the Tribunal ordered the Parliament to pay the applicant the sum of EUR 50 000 in compensation for the non-material damage suffered (judgment in CH, paragraph 65).
2. The measures adopted by the Parliament to comply with the judgment in CH
30 Following the dismissal decision, annulled by the judgment in CH, the applicant received unemployment benefit, from the date on which the dismissal decision took effect until 23 January 2013, the date on which she was engaged by a Belgian private employer (‘the private employer’) who was subsequently obliged to dismiss her for economic reasons. The applicant thus received a salary from the private employer from 23 January 2013 to 12 March 2014.
31 By letter of 15 January 2014, the applicant requested the Parliament to take the following measures to comply with the judgment in CH in accordance with Article 266 TFEU:
– pay her her salary from 20 June 2012, the date on which the unlawful dismissal decision took effect, until 12 March 2014. In that regard, she stated that, in order to cover the difference between the remuneration she would have received if she had not been dismissed and the salary she had received from the private employer until 12 March 2014, the sum of EUR 7 402.41 should be paid to her;
– reinstate her in a permanent post within the Parliament;
– open an administrative inquiry with a view to establishing the reality of the allegations made in the request for assistance. In that connection, she pointed out to the Parliament that the statements made by Ms P. in the Greek and German press illustrated the harassment which she continued to suffer from her;
– arrange for the negative elements stemming from the request for termination no longer to appear on her personal file;
– transfer the pension rights which she had previously acquired under a national scheme to the European Union pension scheme.
32 On 12 February 2014, a meeting took place between the applicant’s lawyers and representatives of the Parliament’s legal service to review the extent of the measures which the Parliament would have to take under Article 266 TFEU to comply with the judgment in CH.
33 By letter of 3 March 2014, the Parliament give an official response to the various requests for measures to comply with the judgment in CH made by the applicant in the abovementioned letter of 15 January 2014 (‘the decision of 3 March 2014’).
34 With regard to the applicant’s request for reinstatement in a permanent post within the Parliament, that institution stated that that measure would manifestly exceed what was necessary in order to comply with the judgment in CH, inter alia because, according to recital 7 of Council Regulation (EC) No 160/2009 of 23 February 2009 amending [the Conditions of Employment] (OJ 2009 L 55, p. 1), ‘no provision of this Regulation may be construed as giving [APAs] privileged or direct access to posts of officials or other categories of servants of the European [Union]’.
35 In those circumstances, in view of the personal nature of the employment relationship between Members of the European Parliament and their APAs, the Parliament informed the applicant that it was not possible for her to be effectively reinstated in her post. Thus, the Parliament explained that ‘the only possibility [was] to reinstate [the applicant] in the post which she occupied before the dismissal decision [held to be unlawful] without requiring her to work out the corresponding period of notice, up until the end of her [contract of employment] … on 1 July 2014[; t]hat dispensation from service appear[ed] also to comply with the duty to have due regard to the welfare of officials’. In that regard, the Parliament undertook to pay the applicant the remuneration due to her from 21 June 2012, the date on which the dismissal decision took effect, until the end of her contract of employment, 1 July 2014, less the remuneration and unemployment benefit she received from other sources during that period.
36 Furthermore, the Parliament confirmed that the request for termination, which had been made at the time, did not appear on the applicant’s personal file and that the dismissal decision, held to be unlawful by the Tribunal, would be removed from that file. As regards the request to transfer to the EU pension scheme pension rights acquired previously under a national scheme, the Parliament noted that the applicant, who had worked for barely five years as an APA, did not fulfil the condition of having completed at least 10 years’ service within the EU in order to be able to claim a retirement pension payable from the EU budget.
37 Lastly, as regards the request to open an administrative inquiry, which had been made in the request for assistance, the Parliament stated that ‘on that point, … if [the applicant] decided to institute proceedings under national law against [Ms P.] the Parliament would review the situation in the light of the case law referred to [in paragraph 57] of the judgment in [CH]’.
38 By letter of 26 March 2014, when announcing her intention to lodge a complaint subsequently against the decision of 3 March 2014, the applicant submitted observations designed to correct three specific points in her request of 15 January 2014 for compliance measures, which in her view would not raise any problem for the Parliament.
39 The first two points concerned an upward adjustment of the sum of EUR 7 402.41, initially claimed by the applicant to cover the remuneration due in respect of the period between 20 June 2012, the date of her unlawful dismissal, and 12 March 2014, the date on which she ceased to receive remuneration from her private employer (‘the double income period’). In that regard, first, she maintained that a thirteenth-month bonus of EUR 5 686 had been wrongly included in the calculation of the sums received from her private employer. In fact, that bonus is not part of her remuneration. Rather, it was advance payment in respect of one month’s leave that she would be required to take under her subsequent employment relationship with a new Belgian private employer, but which would not be paid by that new employer. Secondly, the applicant stated that, ‘at the time of her [involuntary] departure from the Parliament in February 2012’, her notice period was two months. However, the dismissal decision having been annulled, the applicant considered that she should now be reinstated in a longer employment relationship, which would provide her with entitlement to three months’ notice. Consequently, the sum of EUR 5 686 claimed in connection with the double income period should also, in the applicant’s view, be increased by EUR 3 977.43, corresponding to the pay in respect of the additional month’s notice owed her by the Parliament.
40 Thirdly, the applicant stated that, being contractually bound to the Parliament in her capacity as an APA until the expiry of her contract at the end of the parliamentary term, namely 1 July 2014, that institution was required to restore her APA pass and her sticker for access to the Parliament’s car parks.
41 By letter of 2 April 2014 (‘the decision of 2 April 2014’), the Parliament, in response to further requests for compliance measures made by the applicant on 26 March 2014, noted first that, since case law defined very broadly the amounts to be deducted from remuneration due ex post facto to a person who proves to have been wrongly dismissed, it was obliged to deduct the thirteenth-month bonus, which was covered by the concept of an ‘allowance in lieu’, within the meaning of paragraph 71 of the judgment of 13 April 2011 in Scheefer v Parliament (F‑105/09, EU:F:2011:41). Regarding the second point raised by the applicant in her letter of 26 March 2014, the Parliament explained that since it had not taken a new dismissal decision the question of entitlement to a period of notice no longer arose. The contract of employment was now continued until the end of the parliamentary term, 1 July 2014, and there was no longer any question of dismissal. Lastly, so far as the third point raised in the letter of 26 March 2014 was concerned, the Parliament explained that ‘access to the Parliament’s premises and parking areas [was] contingent on performance of the duties of which [the applicant] [had] been relieved until the end of her contract [of employment]’. However, the Parliament nonetheless decided to forward her request to the Accreditation Unit of the Directorate-General for Security of the European Parliament’s Secretariat-General.
42 On 16 April 2014, the applicant, under Article 90(2) of the Staff Regulations, lodged a complaint against the decisions of 3 March and 2 April 2014. First, with regard specifically to the thirteenth-month bonus she had wrongly included in the calculation of the sums received from her private employer, the applicant explained that it was ‘double holiday pay, which [was] paid in advance in respect of future paid leave’. Secondly, with regard to the consequences to be drawn from the annulment of the dismissal decision, the applicant maintained that she should be ‘able to receive all the advantages associated with [her] contract [of employment]’ until that contract expired. For that reason, it was necessary for the Parliament not only to restore her APA pass and the sticker allowing her access to the Parliament’s car parks, but also to restore her entitlement to use her office electronic mailbox and consult the Parliament’s intranet. In that regard, she maintained that failure to reinstate her effectively in her position as an APA had deprived her of the contacts that were essential for her to pursue her career and had caused her damage estimated at EUR 15 000. Thirdly, as regards the conclusions to be drawn from the annulment of the decision rejecting the request for assistance, the judgment in CH could not, in her view, be construed as meaning that the Tribunal sought to make the award of assistance under Article 24 of the Staff Regulations conditional upon bringing proceedings before a national court against the alleged harasser. According to the applicant, the Parliament only partly complied with the judgment in CH, causing her non-material harm which, at that stage, she estimated ex aequo et bono to be EUR 60 000.
43 By letter of 6 June 2014, the Parliament’s legal service, in connection with measures to comply with the judgment in CH, informed the applicant of the existence of the Internal APA Rules on Harassment and the setting up of the Special APA Advisory Committee. It was thus explained to her that that committee was now ‘the body dealing with any harassment complaint by [the applicant]’ and she was ‘advised … to approach the [Special APA Advisory] Committee through its secretariat’.
44 By letter of 20 June 2014, the applicant replied that, following the annulment of the decision rejecting the request for assistance, the Parliament was still dealing with that request, which originated in the conduct of Ms P. Consequently, the applicant wondered ‘why the Parliament … [had] not thought fit, specifically in connection with the measures to comply with the judgment in [CH], to refer the matter itself directly to the [Special APA Advisory Committee], since the latter had been validly constituted — a fact which [had] still not been confirmed to her’.
45 By letter of 4 August 2014, the Secretary-General of the European Parliament, acting as the AECE, rejected the complaint of 16 April 2014 (‘the decision rejecting the complaint’). Recalling that the applicant had now received a total of EUR 9 433.20, covering the difference between, on the one hand, the sums she had received by way of unemployment benefit and as an employee of the private employer between 20 June 2012 and 12 March 2014 and, on the other hand, the salary she had received over the same period as an APA, the Parliament first contended that, as regards the double income period, the sum of EUR 5 686 still being claimed by the applicant had been rightly deducted, since it ‘correspond[ed] to payment in lieu of paid leave not taken by [the applicant] before the end of her contract of employment [with the private employer]’.
46 As regards, next, the question of the restoration of the APA pass and the car park access sticker, the Parliament observed that the applicant had had an opportunity to collect them from the Accreditation Unit since 23 April 2014. Furthermore, the Parliament reminded the applicant that it had given a favourable response to her request for an email address and access to the Parliament intranet contained in her complaint of 16 April 2014 by giving her an email address and access to the Parliament intranet. Taking the view that it had thus responded to all the requests made by the applicant, without preventing her in any way from making contact with Members of the institution, the Parliament rejected the applicant’s claims for compensation.
47 As regards, lastly, the measures to be taken in connection with the annulment of the decision rejecting the request for assistance, the Parliament restated its position, as set out in the decision of 3 March 2014, that, if the applicant were to decide to bring proceedings against Ms P. before a national court the Parliament would be prepared to reconsider the situation in the light of paragraph 57 of the judgment in CH. The Parliament did not, however, address the question of opening an administrative inquiry. On the other hand, it requested the applicant’s permission to refer her case to the Special APA Advisory Committee.
48 On 25 November 2014, the Parliament was notified of the present action by the Registry of the Tribunal. The Special APA Advisory Committee held its inaugural meeting the following day, 26 November 2014. Paragraph 2 of the minutes of that meeting state that, ‘if necessary, [the] Jurisconsult [of the Parliament] may be invited to take part in meetings of the committee … to advise the latter on legal matters’. Paragraph 4 of those minutes states that ‘the Jurisconsult inform[ed] members [of the Special APA Advisory Committee] of the Parliament’s position in … two cases of alleged harassment [, including the case giving rise to the judgment in CH]’.
49 By letter of 17 December 2014, the President of the Special APA Advisory Committee invited the applicant to attend a meeting with the members of that committee arranged for 28 January 2015.
50 On 15 January 2015, the applicant submitted her written observations to the Special APA Advisory Committee. The hearings of the applicant and Ms P. before that committee took place on 28 January 2015.
Forms of order sought by the parties and procedure
51 The applicant claims in essence that the Tribunal should:
– annul the decision of 3 March 2014, in so far as, by that decision the Parliament refused to open an administrative inquiry with a view to establishing the reality of the allegations set out in the request for assistance;
– annul the decision of 2 April 2014, in so far as, by that decision the Parliament refused to pay her the additional sum of EUR 5 686, plus default interest at the rate set by the European Central Bank (ECB) for principal refinancing operations, plus two basis points;
– annul the decision rejecting the complaint;
– order the Parliament to pay compensation for the applicant’s material harm, estimated at EUR 144 000, plus default interest at the rate set by the ECB for principal refinancing operations, plus two basis points;
– order the Parliament to make good the non-material harm she suffered by awarding damages estimated ex aequo et bono at EUR 60 000;
– order the Parliament to pay the costs.
52 The Parliament contends that the Tribunal should:
– dismiss the action as unfounded;
– order the applicant to pay all the costs.
53 Following the second exchange of pleadings, which had been authorised by the Tribunal, the parties agreed that Article 59(2) of the Rules of Procedure should be applied in the present case. The Tribunal thereupon decided, pursuant to that provision, to proceed to judgment without a hearing, and informed the parties accordingly by letter from the Registry of 7 July 2015.
Law
1. Subject-matter of the action
54 It should be noted that, in accordance with the principle of economy of procedure, the European Union judicature may decide that it is not appropriate to rule specifically on the claims directed against the decision rejecting the complaint where it finds that those claims have no independent content and are, in reality, the same as those directed against the decision against which the complaint has been made. That may, in particular, be the case where it finds that the decision rejecting the complaint is purely confirmatory of the decision which is the subject of the complaint and that, therefore, the annulment of the first decision would have no effect on the legal position of the person concerned distinct from that which follows from the annulment of the second (judgments of 21 September 2011 in Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 33, and of 19 November 2014 in EH v Commission, F‑42/14, EU:F:2014:250, paragraph 85).
55 In the present case, the applicant made a request for access to the Parliament intranet and an electronic mailbox for the first time in her complaint of 16 April 2014, and the AECE responded to that request in the decision rejecting the complaint. However, on all the other points, the decision rejecting the complaint upholds the decisions of 3 March and 2 April 2014, so it is not therefore appropriate to rule specifically on the claims directed against the decision rejecting the complaint, even though the statement of reasons contained in that decision clarifies certain grounds of the initial decisions of 3 March and 2 April 2014 and must therefore, in view of the evolving nature of the pre-litigation procedure, also be taken into account in the review of the legality of the decisions of 3 March and 2 April 2014, since that statement of reasons is deemed also to cover those acts (see judgment of 19 November 2014 in EH v Commission, F‑42/14, EU:F:2014:250, paragraph 86 and the case law cited).
2. Claims for annulment
56 By her claims for annulment, the applicant disputes the appropriateness of the measures to comply with the judgment in CH adopted by the Parliament in the decisions of 3 March and 2 April 2014 with regard to two sets of measures, which it is appropriate to examine in turn, namely, first, those in connection with annulment of the dismissal decision and, secondly, those in connection with annulment of the decision rejecting the request for assistance.
The compliance measures adopted by the Parliament in connection with annulment of the dismissal decision by the judgment in CH
Arguments of the parties
57 First, the applicant complains that the Parliament erroneously took into account, in its decisions of 3 March and 2 April 2014, the sum of EUR 5 686 as sums that should, in compliance with the judgment in CH, be deducted from the remuneration owing from the Parliament in respect of the double income period. This is not a thirteenth-month bonus, but double holiday pay paid by the private employer in advance in respect of future leave which, when it is actually taken, will not be remunerated by the new employer. The applicant provides in that regard a ‘holiday certificate’, issued on 16 December 2013 by the Belgian insurance organisation Partena, which states that ‘the amount of holiday pay will be deducted from [the applicant’s] remuneration when [she] takes [her] leave at her new employer’s’.
58 Secondly, the applicant complains that the Parliament did not restore straightway after the delivery of the judgment in CH her APA pass, her car park sticker and access for her to her office email and the Parliament’s intranet (her ‘work tools’). She explains that those work tools were the only way she could effectively resume contact with Members of the European Parliament and find out about vacant APA posts. The decisions whose annulment she seeks are unlawful in so far as the work tools, which are closely connected with the very existence of her position as an APA, were restored but only with considerable delay. As a result of that delay she alleges she lost a not insignificant chance of being offered a new APA contract.
59 The Parliament responds that the contested sum of EUR 5 686 constitutes an ‘allowance in lieu’ within the meaning of the judgment of 13 April 2011 in Scheefer v Parliament (F‑105/09, EU:F:2011:41 paragraph 71), which it was required to deduct from the remuneration it owed in respect of the applicant’s services as an APA during the double income period. In so far as the complaint concerning the delay in restoring the work tools is concerned, the Parliament maintains in essence that as the applicant had not been required to work out the remainder of her contract of employment she had no need of the work tools. That being so, the Parliament notes that it was out of concern for the applicant and in a spirit of conciliation towards her that it had responded favourably to her requests for access to the work tools.
Findings of the Tribunal
– The possibility of deducting, from the amount of remuneration owing in respect of the double income period, the sum received by the applicant as holiday pay
60 As a preliminary point, it should be noted that the annulment of a measure by the courts has the effect of retroactively eliminating that measure from the legal system, and that where the measure annulled has already been carried out, the abolition of its effects means that the applicant must be restored to the legal position he was in before that measure was adopted (judgment of 26 May 2011 in Kalmár v Europol, F‑83/09, EU:F:2011:66, paragraph 88).
61 It follows that, under Article 266 TFEU, the Parliament was required to take the measures involved in complying with the judgment in CH, having reference to the date on which the dismissal decision annulled by that judgment had been taken. From the outset, it should be noted that the applicant does not necessarily challenge, in principle, the Parliament’s decision of 3 March 2014 to reinstate her under a contract of employment as an APA until the end of the parliamentary term in progress at the date of that decision, that is to say until 1 July 2014, whilst not requiring her to actually carry out her duties as an APA. The Tribunal takes the view, in any event, that that measure to comply with the judgment in CH does not seem inappropriate in view, first, of the context in which the work of an APA takes place, in the present case in the context of a direct relationship with the Member of the European Parliament concerned, who alone has the power to select her staff, and, secondly, of the fact that the applicant had taken up a new position with a private employer, so that the period during which she was paid a salary by that private employer and when she was receiving unemployment benefit thus appears to be a double income period. The applicant disputes, however, the way in which the Parliament calculated the amount of remuneration that was due to her in respect of that period.
62 In that regard, the Parliament was entitled to take the view that the reinstatement of the legal situation in which the applicant was before the adoption of the dismissal decision annulled by the judgment in CH meant that it should pay her in respect of the period between 20 June 2012, the date on which the dismissal decision took effect, and 1 July 2014, the date her contract of employment ended, the difference between, on the one hand, the amount of remuneration to which the applicant would have been entitled if she had remained in service and had actually carried out the duties of an APA and, on the other hand, the remuneration or unemployment benefit she actually received from other sources (judgment of 26 May 2011 in Kalmár v Europol, F‑83/09, EU:F:2011:66, paragraph 90), without preventing the organisation that had provided that unemployment benefit from recovering the amount of that benefit from the European Parliament.
63 As regards remuneration or unemployment benefit that could be deducted during the double income period, it is clear from case law that it may include ‘the amount of the remuneration, fees, unemployment benefit or any other allowance in lieu’ or ‘remuneration of the same nature’ received by the applicant during the double income period ‘in place of the remuneration’ that she would have received in normal circumstances if, in the absence of the annulled dismissal decision, she had remained in service at the Parliament (see, to that effect, judgment of 13 April 2011 in Scheefer v Parliament, F‑105/09, EU:F:2011:41, paragraph 71).
64 On that point, it should be noted that, under Belgian law and as is clear from the documents submitted by the parties, holiday pay comprises the remuneration that is normally paid during leave and a supplement equal, for each month worked or treated as such in the preceding year, to one twelfth of 92% of the gross remuneration for the month in which the leave starts. Furthermore, in the event of dismissal under the rules for employees working under private law, an employer who dismisses an employee is obliged, as in the present case, to pay holiday pay in advance at the end of the contract of employment.
65 In that regard, in the circumstances of the present case, the holiday pay which the applicant received from the private employer must not be regarded as an allowance to replace the remuneration which she actually received, during the double income period, in lieu of the remuneration she would have received from the Parliament for her services as an APA. That holiday pay is designed to cover the days of annual leave which the applicant will be obliged to take at a later date under a new contract of employment under Belgian law, but which will not, at the time they are taken, be remunerated by the new private employer. On the contrary, it is clear from the certificate provided by the Belgian insurance organisation Partena that, when the days’ leave covered by that pay are taken, as required, the sum allocated as holiday pay must be deducted from salary by the new employer. To take the amount of that pay into account as remuneration or an allowance in lieu received during the double income period would be tantamount to taking into account income which, although it has already been paid in advance, in reality, must in principle be deducted subsequently from the salary received and thus proves to be remuneration for periods of holiday which will be taken outside the double income period and which that pay is deemed to cover in terms of remuneration.
66 Accordingly, as the applicant rightly contends, the Parliament was not entitled, when adopting the necessary measures to comply with the judgment in CH in connection with annulment by that judgment of the dismissal decision and following the applicant’s request of 26 March 2014, in this case in the decision of 2 April 2014, to deduct from the amount of remuneration which the applicant should have received from the Parliament for her services as an APA during the double income period the sum of EUR 5 686 corresponding to the holiday pay paid by the private employer.
– Restoration of the work tools
67 As regards the work tools which the applicant complains the Parliament delayed in making available to her, in breach of Article 266 TFEU, the Tribunal notes that, in view of the personal nature of the employment relationship between Members of the European Parliament and their APAs, the Parliament was entitled to take the view, in the decision of 3 March 2014, that it was not appropriate for the applicant to be effectively reinstated in her former post, a decision which the applicant did not actually challenge in principle. Similarly, the Parliament was entitled to decide that it was not in a position to assign the applicant to another post as an APA, on the ground that it is Members of the European Parliament themselves who, under Articles 5a and 128(2) of the Conditions of Employment, select their APAs and then ask the Parliament’s administration to carry out the recruitment of the APAs whom they have selected, since the employment of those persons presupposes the existence of a relationship of trust.
68 Furthermore, in a situation where, at this stage, it is neither asserted nor proven that the applicant was in fact a victim of psychological harassment within the meaning of Article 12a of the Staff Regulations by the Member of the European Parliament whom she assisted, and in so far as APAs are not intended to occupy a permanent post, in view of their special status, which is characterised and justified by the existence of a relationship of trust with the Member of the European Parliament they are required to assist, the AECE was entitled to consider that it should not, by way of a measure of compliance with the judgment in CH, assign the applicant, on a temporary or a permanent basis, to a post in one of its departments that could be occupied by a member of the temporary staff within the meaning of Article 2 of the Conditions of Employment or by a member of the contract staff within the meaning of Article 3a of the Conditions of Employment.
69 As a consequence, the second complaint must be construed as meaning that the applicant, without necessarily claiming the right, under the measures to comply with the judgment in CH, to effective reinstatement as an APA to a Member of the European Parliament, complains that that institution failed to comply with Article 266 TFEU in not making work tools available to her immediately following the judgment in CH and, in any event, by delaying in making them available, which had consequences as regards her capacity to take steps in order to be recruited by another Member of the European Parliament newly elected for the duration of the forthcoming parliamentary term.
70 In that regard, it is common ground between the parties that officials and other staff of the Parliament in active employment are normally, in order to carry out their duties, granted a permanent right of access to the premises of the Parliament and that they are issued with a special access permit in the form of a pass and, where appropriate, a sticker for access to the institution’s car parks, enabling them to exercise that right.
71 However, since the applicant was not required to carry out her duties as an APA for the remainder of her contract of employment, the Parliament was not obliged to restore the pass and the sticker she claimed by way of a compliance measure stemming directly from the judgment in CH.
72 Furthermore, the fact remains that, when the applicant, by her letter of 26 March 2014, more than three months after the judgment in CH, finally stated that she again wished to have a pass and a car park sticker for the Parliament, the Parliament granted her request a few days later, by the decision of 2 April 2014, and made the pass and the sticker available to her from 23 April 2014. The applicant’s complaints in that regard must therefore be rejected.
73 As regards the request for an email address and access to the Parliament’s intranet, a request which the applicant made for the first time in her complaint of 16 April 2014, it is correct that, in view of the particular circumstances of this case, the Parliament took a certain amount of time to design computer access from outside for an APA who was not actually carrying out the duties of an APA and was not actually attached to a serving Member of the European Parliament.
74 In that regard, first, the applicant’s request for access to the Parliament’s infrastructure and computer facilities appears to be part of an understandable process enabling her to contact newly-elected Members before they took office and take advantage of her status as a serving APA, which a Parliament email address would have confirmed, giving her a degree of visibility. Similarly, the applicant wished to have access to certain information available within the Parliament. However, although the institution may, where appropriate, allow its officials and other staff to use, out of working hours, its infrastructure, including its computers, for purposes not relating to work, that option for the institution cannot be made into an entitlement under the Staff Regulations for officials and other staff, especially in a situation like that in the present case, in which the person concerned has been exempted from carrying out her duties in the interests of the service and where the Parliament’s internal rules clearly state that ‘email … is strictly to be used only directly in connection with the duties performed by the [staff member]’.
75 Secondly and in any event, it should be noted that, generally, where a number of administrative measures are required in order to comply with a judgment annulling a measure, such compliance cannot be immediate. Thus the institutions must have a reasonable time to comply with a judgment annulling a measure (judgments of 12 January 1984 in Turner v Commission, 266/82, EU:C:1984:3, paragraph 5; of 10 July 1997 in Apostolidis and Others v Commission, T‑81/96, EU:T:1997:111, paragraph 37; and of 20 June 2012 in Menidiatis v Commission, F‑79/11, EU:F:2012:89, paragraph 40). The Tribunal considers that, by making available to the applicant on 18 June 2014 an email address and access to the Parliament’s intranet, the Parliament acted within a reasonable time, given the fact that the request to that effect had been made on 16 April 2014 and technical alterations were needed in order to do this, since access to the Parliament’s intranet and provision of an electronic mailbox for an APA require prior authorisation of the Member of the European Parliament whom the APA assists.
76 In the light of all the foregoing, the view must be taken that, as regards the measures involved in complying with the judgment in CH in connection with annulment of the dismissal decision, the Parliament failed to comply with Article 266 TFEU, in its response to the additional requests of 26 March 2014, only with regard to the deduction, from the remuneration due in respect of the double income period, of the amount the applicant received by way of holiday pay under Belgian law.
77 Accordingly, it is necessary to annul the decision of 2 April 2014, as upheld by the decision rejecting the complaint, in so far as the Parliament refused to pay the applicant an additional sum of EUR 5 686. Furthermore, in view of that annulment it is now necessary to grant the applicant’s claim for damages in respect of that sum and her claim that default interest should be added to that sum at the rate set by the European Central Bank (ECB) for principal refinancing operations, plus two basis points, with effect from 1 July 2014, the date on which her contract ended.
The compliance measures adopted by the Parliament in connection with the annulment by the judgment in CH of the decision rejecting the request for assistance
Arguments of the parties
78 The applicant claims that, as regards the decision rejecting her request for assistance annulled by the Tribunal, the Parliament, in the decision of 3 March 2014 and by way of a measure to comply with the judgment in CH, merely examined the possibility of offering her assistance within the meaning of Article 24 of the Staff Regulations only if she decided to bring proceedings against Ms P. before a national court. According to the applicant, that does not constitute an appropriate measure for complying with the judgment in CH within the meaning of Article 266 TFEU. The AECE should have resumed examination of her request for assistance and, in view of the prima facie evidence she had provided at the time that request was made, it should have opened an administrative inquiry, as required by case law, in order to establish the reality of the allegations of harassment set out in her request for assistance.
79 In that regard, the applicant maintains in particular that the Tribunal did not intend to make the duty for the AECE to provide her with assistance conditional on her bringing proceedings before a national court, since provision of assistance for an APA in proceedings before a national court is only one of the forms which the duty to provide assistance under Article 24 of the Staff Regulations takes.
80 Lastly, the applicant observes that the AECE did not entrust the powers it holds under Article 24 of the Staff Regulations to the Special APA Advisory Committee, and that it is incomprehensible that the AECE would not decide to open an administrative inquiry immediately after the judgment in CH or to refer the matter itself to the Special APA Advisory Committee immediately after it was set up if it wanted that committee to take charge of the administrative inquiry, which the AECE would under normal circumstances be required to undertake. The applicant thus claims that the Parliament failed to comply with Article 24 of the Staff Regulations, with the duty to have due regard to the welfare of officials and with Article 31 of the Charter of Fundamental Rights of the European Union.
81 The Parliament for its part contends that the complaints raised should be rejected. In that regard, it observes that, as early as February 2014, that is before the setting up of the Special APA Advisory Committee, it had offered to assist the applicant if she decided to bring proceedings against Ms P. before a national court. In addition, it had informed the Special APA Advisory Committee, at the first meeting of that new committee, held on 26 November 2014, of the existence of the applicant’s complaint of harassment. However, that committee, to which the AECE had entrusted the task of conducting an administrative inquiry into allegations of harassment made by APAs against Members of the European Parliament in order to give effect to Article 24 of the Staff Regulations when a complaint concerning a Member of the European Parliament is made by someone in that category of staff, examined that complaint, interviewing the applicant and Ms P. The Parliament states in that regard that Members of the European Parliament are not subject to the AECE and that the Parliament, in its capacity as an AECE, is therefore not in a position to compel them to cooperate in an administrative inquiry, especially as the AECE has no power to impose penalties on them where harassment is proven.
Findings of the Tribunal
82 As a preliminary point, it should be noted that, in order to comply with the obligation laid down in Article 266 TFEU, it is for the institution which adopted the act annulled by the EU judicature to determine the measures required to implement the judgment annulling the act in the exercise of the discretion which it has for that purpose, complying with both the operative part and the grounds of the judgment which it is required to implement and with the provisions of EU law applicable. In that regard, where compliance with a judgment annulling a measure presents particular difficulties, the institution concerned may satisfy the obligation arising from Article 266 TFEU by taking such decision as will provide due compensation for damage which the persons concerned have suffered as a result of that judgment. In that context, the appointing authority or, as in the present case the AECE, may for example establish a dialogue with the applicant in order to attempt to reach agreement offering her fair compensation for the unlawfulness of which she had been the victim (see judgments of 9 August 1994 in Parliament v Meskens, C‑412/92 P, EU:C:1994:308, paragraphs 28 and 30; of 8 October 1992 in Meskens v Parliament, T‑84/91, EU:T:1992:103, paragraph 80; and of 17 March 1994 in Hoyer v Commission, T‑43/91, EU:T:1994:29, paragraph 64).
83 However, even where compliance with a judgment annulling a measure presents particular difficulties and dialogue with the person concerned does not enable agreement to be reached, the discretion of the institution concerned is, de facto, limited by the need to comply with the operative part and the grounds of the judgment which it is required to implement and also with the provisions of EU law applicable. Thus, the institution must, in particular, ensure that the measures adopted are not vitiated by the same irregularities as those identified in the judgment annulling the measure (judgment of 13 December 2012 in Honnefelder v Commission, F‑42/11, EU:F:2012:196, paragraph 46 and the case law cited).
84 In the present case, as regards the applicant’s complaint concerning the AECE’s refusal to open an administrative inquiry into the allegations of harassment of which she claimed to be victim, it should be noted that, in the decision of 3 March 2014, the AECE did not inform the applicant that an administrative inquiry had been opened into the allegations of psychological harassment. Thus, in view of the request to open an administrative inquiry contained in the request for compliance measures of 15 January 2014, repeating the request for the opening of such an inquiry originally made in the request for assistance and in the complaint of 16 April 2014, it must be held that, by the decision rejecting the complaint, the AECE, by necessary implication, refused to open such an administrative inquiry, merely stating that a Special APA Advisory Committee had been created, which was not set up until 26 November 2014 and did not interview the applicant until January 2015, that is to say, after the decision rejecting the complaint had been taken and after the present action had been lodged.
85 It is therefore necessary to examine whether compliance with the judgment in CH, in so far as it annulled the decision of 15 March 2012 rejecting the request for assistance, required the Parliament to open an administrative inquiry, as the applicant contends.
86 Regarding the legality of a decision refusing, without an administrative inquiry having been opened, to grant a request for assistance brought on the basis of Article 24 of the Staff Regulations, the EU Courts must assess the merits of that decision in the light of the evidence which had been brought to the administration’s attention, in particular by the person concerned in her request for assistance, at the time when the decision was made (judgments of 16 September 2013 in Faita v EESC, F‑92/11, EU:F:2013:130, paragraph 98, and of 26 March 2015 in CW v Parliament, F‑124/13, EU:F:2015:23, paragraph 143, which is the subject of an appeal pending before the General Court, Case T‑309/15 P).
87 In that regard, it should be noted that, by virtue of the duty to provide assistance, the administration, when faced with an incident which is incompatible with the good order and tranquillity of the service, must intervene with all the necessary vigour and respond with the rapidity and solicitude required by the circumstances of the case so as to ascertain the facts and, having done so, to take the appropriate action in full knowledge of the matter. To that end, it is sufficient that the official or other staff member who is seeking the protection of his institution provide prima facie evidence that the attacks of which he claims to have been the victim actually took place. When such evidence is provided, the institution concerned is then under an obligation to take the necessary measures, in particular to conduct an administrative inquiry, with the cooperation of the complainant, to determine the facts which gave rise to the complaint (judgments of 26 January 1989 in Koutchoumoff v Commission, 224/87, EU:C:1989:38, paragraphs 15 and 16; of 21 April 1993 in Tallarico v Parliament, T‑5/92, EU:T:1993:37, paragraph 31; of 5 December 2000 in Campogrande v Commission, T‑136/98, EU:T:2000:281, paragraph 42; of 8 July 2004 in Schochaert v Council, T‑136/03, EU:T:2004:229, paragraph 49; of 25 October 2007 in Lo Giudice v Commission, T‑154/05, EU:T:2007:322, paragraph 136; and of 26 March 2015 in CW v Parliament, F‑124/13, EU:F:2015:23, paragraph 37).
88 In cases of allegations of harassment, the duty to provide assistance includes, in particular, the duty of the administration to examine seriously, expeditiously and in total confidentiality, the complaint of harassment and to inform the complainant of the action to be taken in respect of that complaint (judgments of 27 November 2008 in Klug v EMEA, F‑35/07, EU:F:2008:150, paragraph 74, and of 26 March 2015 in CW v Parliament, F‑124/13, EU:F:2015:23, paragraph 38).
89 With regard to the measures to be taken in a situation which, as in the present case, is covered by Article 24 of the Staff Regulations, the administration enjoys a broad discretion — subject to review by the EU judicature — regarding the choice of measures and methods for implementing that provision. Review by the EU judicature is thus limited to assessing whether the institution concerned remained within reasonable bounds and whether it used its discretion in a manifestly incorrect way (see judgments of 15 September 1998 in Haas and Others v Commission, T‑3/96, EU:T:1998:202, paragraph 54; of 4 May 2005 in Schmit v Commission, EU:T:2005:158, paragraph 98; of 25 October 2007 in Lo Giudice v Commission, EU:T:2007:322, paragraph 137; and of 26 March 2015 in CW v Parliament, F‑124/13, EU:F:2015:23, paragraph 39).
90 That being so, it is clear from the case law of the EU Courts regarding harassment, case law which applies mutatis mutandis in the present case, a fortiori where the person against whom allegations have been made is a person elected to hold an office provided for in the Treaties, that, as a general rule, the institution cannot take disciplinary or other action against a person mentioned in a complaint of harassment (whether or not he or she is a superior of the purported victim) unless the preliminary measures ordered clearly establish that the person accused by the official or staff member has engaged in conduct detrimental to the proper functioning of the service or to the dignity and reputation of the purported victim (judgments of 9 November 1989 in Katsoufros v Court of Justice, 55/88, EU:C:1989:409, paragraph 16; of 28 February 1996 in Dimitriadis v Court of Auditors, T‑294/94, EU:T:1996:24, paragraph 39; and of 4 May 2005 in Schmit v Commission, EU:T:2005:158, paragraph 108).
91 In the light of Articles 11 and 12 of the Internal APA Rules on Harassment, which, unlike Articles 13 and 14 of the Internal Rules on Harassment, no longer entrust to the Secretary-General of the European Parliament, but to the Quaestors, or even to the President of the Parliament, the powers held by the AECE as regards disciplinary measures in this area, it is to be understood from the legal arrangements put in place at the Parliament that, now, when a request for assistance involving an allegation against a Member of the European Parliament is submitted under Article 24 of the Staff Regulations by an APA to the AECE, in the person of the Secretary-General of the European Parliament, the latter is competent to adopt any measure directly concerning the APA, although any measure requiring the participation of the Member of the European Parliament concerned or involving the application or possible application of disciplinary measures against that Member is, depending on the circumstances, a matter for the APA Special Advisory Committee, the Quaestors or the President of the Parliament.
92 In the present case, it is clear from the documents before the Tribunal that the applicant had substantiated her request for assistance with prima facie evidence. Besides the assertions she made unilaterally, explaining that Ms P. left no evidence in writing of what took place between them, the applicant gave the names of two of Ms P.’s staff who, she alleges, had witnessed all the conduct that she described and could thus corroborate her statements at a hearing. Moreover, even though the opinions of medical experts are, in themselves, not such as to establish the existence, in law, of harassment or of fault on the part of the institution in the light of its duty to provide assistance (see judgments of 6 February 2015 in BQ v Court of Auditors, T‑7/14 P, EU:T:2015:79, paragraph 49, and of 17 September 2014 in CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 127), the applicant had provided medical certificates which, for the purpose of determining whether the AECE has a duty to provide assistance, may be regarded as prima facie evidence of a perception, albeit subjective, of psychological harassment. To this was added the fact that one of the applicant’s colleagues had also contacted the General Advisory Committee set up under the Internal Rules on Harassment and had brought an action before the Tribunal on 24 March 2014 making allegations of psychological harassment against the same Member of the European Parliament.
93 Thus, the information supplied at the time of the request for assistance and that disclosed subsequently at the time of the request for measures to comply with the judgment in CH of 15 January 2014 and of the complaint of 16 April 2014, namely the applicant’s pleadings in which she requested the AECE to open and conduct an administrative inquiry, constituted evidence capable of creating serious doubt as to whether, in the present case, the conditions laid down in Article 12a of the Staff Regulations were satisfied (see judgment of 26 March 2015 in CN v Parliament, F‑26/14, EU:F:2015:22, paragraph 56).
94 In those circumstances, by the effect of the annulment of the decision rejecting the request for assistance by the judgment in CH, the request for assistance, which remained unresolved, was again referred to the AECE. Accordingly, the AECE was obliged, in connection with the measures to be taken to comply with the judgment in CH, to provide a proper and prompt response to that request for assistance, in particular by opening an administrative inquiry, especially since, as the Tribunal held in paragraph 58 of the judgment in CH, there was nothing to prevent the Parliament, on the basis of Article 9(2) of its Rules of Procedure, from inviting Ms P. to collaborate in an administrative inquiry, in order to determine whether the conduct allegedly in breach of Article 12a of the Staff Regulations, of which the applicant claimed to have been victim, did take place.
95 Furthermore, the objective of an administrative inquiry is, as has been previously stated, to ascertain the facts and, having done so, to take the appropriate action, in full knowledge of the matter both in relation to the case that is the subject of the inquiry and, more generally, in order to comply with the principle of sound administration, to prevent such a situation from recurring. Furthermore, the results of an administrative inquiry may either confirm the allegations of psychological harassment, confirmation which may be useful for the victim in seeking compensation for possible harm suffered by means of proceedings against the alleged harasser before a national court, or invalidate the allegations of the purported victim, invalidation which then makes it possible to repair the harm that such an, ultimately unfounded, accusation may have caused to the person against whom the allegations of harassment have been made in such an inquiry.
96 It follows from the above that, by not opening an administrative inquiry, as asked for by the applicant in the request for assistance and in her request for measures to comply with the judgment in CH of 15 January 2014 and in her complaint of 16 April 2014, the Parliament, in view of the annulment by the judgment in CH of the decision rejecting the request for assistance, failed to comply with Article 266 TFEU.
97 In that regard, it is not significant that the Special APA Advisory Committee was only set up in April 2014 or that the applicant did not agree to that committee, which, as its name states, is merely advisory, being approached.
98 First, the applicant was, in any event, entitled to submit a request for assistance under Article 24 of the Staff Regulations to the AECE, without being subject to an obligation to refer the matter to the General Advisory Committee and/or the Special APA Advisory Committee beforehand or, if she had referred the matter to those committees, to an obligation to wait for a response from that committee or committees, even though in some cases, inter alia with a view to mediation, that might be desirable (see, to that effect, judgment of 26 March 2015 in CW v Parliament, F‑124/13, EU:F:2015:23, paragraph 140).
99 Secondly, the obligation to open and conduct an administrative inquiry promptly is incumbent on the AECE, which is the authority empowered to deal with a request for assistance submitted under Article 24 of the Staff Regulations, without prejudice, however, to the possibility for the AECE to delegate the necessary investigation or prevention tasks to another administrative entity or to another body within the institution, under a legal provision lawfully adopted by the latter laying down the terms and conditions for such delegation, in compliance with the relevant higher-ranking provisions of EU law. Thus, the institution may, for that purpose, supplying the appropriate logistical and human resources, decide to entrust the conducting of an administrative inquiry to the hierarchy of the institution — such as a Director-General, an ad hoc committee of inquiry, or an advisory committee on harassment — or even to a person or body outside that institution (judgment of 26 March 2015 in CW v Parliament, F‑124/13, EU:F:2015:23, paragraph 142).
100 Accordingly, even though, after the present action had been lodged, the AECE decided to refer the matter directly to the Special APA Advisory Committee, a step which seems to demonstrate the AECE’s intention to entrust to that committee the conduct of the administrative inquiry which fell to the AECE by virtue of the duty of assistance under Article 24 of the Staff Regulations, the fact remains that, even if that reference to the Special APA Advisory Committee is regarded as being equivalent to a decision by the AECE to open an administrative inquiry, it took place after the decision rejecting the complaint was taken and the date on which the present action was lodged.
101 In view of the above, the decision of 3 March 2014, as upheld by the decision rejecting the complaint, must be annulled in so far as the Parliament failed to comply with Article 266 TFEU in not ordering, in accordance with its duty to provide assistance under Article 24 of the Staff Regulations and its duty to have due regard to the welfare of officials, the opening of an administrative inquiry into the allegations of psychological harassment following the annulment of the decision rejecting the request for assistance by the judgment in CH.
102 In those circumstances, it is not therefore necessary to rule on the applicant’s plea concerning whether the AECE had a duty to assist her in seeking protection through means of national remedies. In any event, suffice it to say in that regard that the grounds contained in paragraph 57 of the judgment in CH cannot be construed as meaning that the duty to provide assistance referred to in Article 24 of the Staff Regulations should be confined, by way of measures to comply with the judgment in CH, to proposing to the applicant, in the event that she decided to bring proceedings before a national court against the alleged harasser, that it would assist her in those proceedings.
3. The claim for damages
The material harm resulting from the loss of opportunity to be recruited by a Member of the European Parliament for the 2014/2019 parliamentary term
Arguments of the parties
103 The applicant takes the view that the Parliament should be ordered to pay her the sum of EUR 144 000 by way of compensation for the material harm resulting from the loss of opportunity to obtain a new APA contract for the 2014/2019 parliamentary term. According to the applicant, not having the work tools available to her at the appropriate time, she was unable to make valuable contact with newly-elected Members of the European Parliament or find out about any vacant posts notified within the Parliament. Accordingly, she lost the opportunity to be recruited for a period of five years. Since she was still seeking a post at the date on which she lodged her reply, she maintains that the advantage lost can be evaluated at approximately EUR 240 000 on the basis of the salary she received previously as an APA. There would have been a genuine chance of her being recruited by a newly-elected Member of the European Parliament for the 2014/2019 parliamentary term if she had remained working on the premises of the Parliament throughout the preceding term, particularly as a result of the experience she would have acquired. As shown by the fact that she had been engaged by Ms P. following the departure of the Member of the European Parliament whom the latter succeeded, the applicant considers that, on average, in 60% of cases APAs remain in service by obtaining a new post with a new MEP after the election results are declared. Applying that percentage for calculating the chance of being recruited, namely 60%, to the sum of EUR 240 000, which represents the aggregate amount of salary of an APA over the course of a full parliamentary term, she reaches the conclusion that the Parliament should be ordered to pay her the sum of EUR 144 000 in damages for the material harm suffered.
104 The Parliament considers that, as regards the three conditions laid down in case law for the European Union to incur liability, the condition concerning unlawful conduct is absent in the present case since the Parliament did not prevent the applicant from making contact with Members of the Parliament newly elected for the 2014/2019 parliamentary term. Furthermore, the fact of the alleged damage is not sufficiently substantiated for the purposes of case law, which requires that damage must be actual and certain and, where it is a case of loss of opportunity, that the opportunity allegedly lost was actual and, also, that the loss was definitive. The applicant, who has not moreover shown that she has taken any steps in that direction, still retains the possibility of being recruited by one of the Members of the European Parliament during the current five-year parliamentary term, which does not end until 2019. In any event, there is no provision of the Staff Regulations or law that confers on APAs a right to be engaged to assist another Member of the European Parliament on the expiry of their contracts, the future of an APA being, by reason of his or her employment being based on a relationship of trust, by nature hypothetical and not actual or certain.
105 As for contacts with newly-elected Members of the European Parliament, contrary to what the applicant implies, these are made essentially, not on the premises of the Parliament but in the Member States of origin of the newly-elected Members of the European Parliament and before they even take up office.
106 Lastly, there is no causal link between the alleged unlawful conduct and the alleged material harm, since there is no way that the alleged misconduct on the part of the Parliament could be the determining factor as regards the applicant’s alleged loss of opportunity, that is to say, her failure to be recruited by a Member of the European Parliament for the 2014/2019 parliamentary term, since APAs are freely selected by those elected to the Parliament and not by the institution itself.
Findings of the Tribunal
107 As a preliminary point, it should be noted that non-contractual liability on the part of the European Union is subject to three conditions: unlawfulness of the conduct alleged against the institution, actual damage and the existence of a causal link between the conduct of the institution and the damage complained of. Those three conditions are cumulative, so the absence of any one of them is sufficient for the claim for damages to be dismissed (see judgments of 21 February 2008 in Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraph 52; of 5 July 2011 in V v Parliament, F‑46/09, EU:F:2011:101, paragraph 157; and of 19 May 2015 in Brune v Commission, F‑59/14, EU:F:2015:50, paragraph 71).
108 As regards the unlawful conduct relied on in support of the claim for compensation for the material harm resulting from the loss of an opportunity to be recruited, it must be stated that that conduct consists essentially in the Parliament’s allegedly unlawful refusal to make work tools available to the applicant, the refusal contained in the decisions of 3 March and 2 April 2014. However, as has already been established, that complaint appears to be unfounded.
109 In any event, according to case law, the damage for which compensation is sought, in this case material damage, must be actual and certain (see, to that effect, judgments of 21 February 2008 in Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraph 54, and of 19 May 2015 in Brune v Commission, F‑59/14, EU:F:2015:50, paragraph 76). In particular, where the damage consists, as in the present case, in a loss of opportunity, first, the opportunity lost must have been actual (judgments of 5 October 2004 in Eagle and Others v Commission, T‑144/02, EU:T:2004:290, paragraph 165, and of 6 June 2006 in Girardot v Commission, T‑10/02, EU:T:2006:148, paragraph 96) and, secondly, such loss must be definitive.
110 The degree of certainty of the causal link is attained where the unlawful act committed by an EU institution has definitely deprived a person, not necessarily of recruitment, which the person concerned could never prove would have taken place, but of a genuine chance of being recruited as an official or servant, resulting in material damage for the person concerned in the form of loss of income (judgments of 5 July 2011 in V v Parliament, F‑46/09, EU:F:2011:101, paragraph 159, and of 17 October 2013 in BF v Court of Auditors, F‑69/11, EU:F:2013:151, paragraph 73).
111 In the present case, the Tribunal takes the view that, even though in practice it may be observed that, following every election to the Parliament, a certain proportion of APAs, assessed by the applicant at 60% of those who were previously employed, are actually engaged by newly-elected Members of the European Parliament, whether those Members have or have not held a Parliamentary mandate during the preceding parliamentary term, the applicant cannot reasonably claim that if she had actually remained in service throughout the entire 2009/2014 parliamentary term she would have had a 60% chance of convincing a newly-elected Member of the European Parliament to employ her. Since his recruitment and the possible continuation of his employment relationship or the renewal of his contract of employment are, by definition, dependent on the existence of a relationship of trust with the Member of the European Parliament he assists, an APA currently working for a Member of the European Parliament cannot either be assured of being recruited to assist another Member of the European Parliament or be certain that, once recruited, the same newly re-elected Member of the European Parliament will continue to employ him.
112 Furthermore, as regards a reduced opportunity of being recruited by a Member of the European Parliament newly elected for the 2014/2019 parliamentary term as a result of the delay in making work tools available: first, those tools were restored to the applicant when she requested them, at least within a period of time that was not unreasonable. Secondly, as the Parliament rightly states, the mere fact of being physically present on the premises of the Parliament and/or having an email address of that institution or access to the latter’s intranet cannot reasonably be considered to be a decisive factor in order to be selected by a newly-elected Member of the European Parliament as a future staff member. In any event, although those aspects may facilitate making contact, they do not constitute or in any way provide a guarantee of employment or access to employment. They cannot therefore be regarded, speculatively, as factors which constitute an actual and certain opportunity of being recruited.
113 Furthermore, newly-elected Members of the European Parliament, before officially taking office at the European Parliament, may also make contacts and arrange interviews to recruit their staff in their Member State of origin. Lastly, in view of the significance which the applicant attaches to that aspect in order to obtain a post as an APA, it may reasonably be presumed that, having worked for several years as an APA, she had retained an adequate network of contacts among Members of the European Parliament and APAs to be informed of vacant posts and could therefore easily establish contact with newly-elected Members, without necessarily needing to have a Parliament email address or access to its premises. It is moreover clear from the information she provided in her reply that she maintained relations with APAs working in the national delegation of a parliamentary group, and with that delegation, and all those persons could have passed on information to her from the Parliament.
114 It is clear from the above that, even if the applicant could have effectively remained in service and had had the work tools available to her immediately following the judgment in CH, her alleged opportunity to be recruited by a Member of the European Parliament newly elected for the 2014/2019 parliamentary term would have been based not on the availability of the work tools or her physical presence on the premises of the Parliament, but rather on the merits of her application and her professional profile, a profile which would not have been substantially improved by actually working as an APA for an additional period of a few months in 2014. Moreover, the applicant does not state that she made any specific approaches to newly-elected Members of the European Parliament or that any of them refused to employ her on the grounds that she was not physically present on the premises of the Parliament or that up until 16 June 2014 she did not have an email address of that institution or that she did not have sufficient professional experience as an APA.
115 Furthermore, as the Parliament points out, the 2014/2019 parliamentary term is still in progress. Thus, the alleged loss of opportunity appears in no way to be definitive since, on the contrary, the applicant might in the future have occasion to be recruited again as an APA.
116 Viewed from this angle, as regards both the condition that the loss of opportunity to be recruited must be actual and the condition that there must be a causal link, the claim for damages relating to an alleged loss of opportunity to be recruited must be rejected.
117 It is clear from the above considerations that the claim for damages in respect of compensation for material harm resulting from the loss of opportunity to be recruited by a Member of the European Parliament for the 2014/2019 parliamentary term must be rejected as unfounded.
The psychological harm resulting from the failure to open an administrative inquiry
Arguments of the parties
118 The applicant relies, in support of her claim for compensation for psychological harm, which she estimates at EUR 60 000, on the fact that she has still not obtained the opening of an administrative inquiry to establish the reality of the allegations of psychological harassment made in her request for assistance. Annulment of the decisions contested in the present case would not compensate for such harm, which appears separable from the unlawfulness which is the basis for the annulment of those decisions. She considers that the psychological harm she suffered is based in part on the fact that without the opening of an administrative inquiry it was her personal dignity, in respect of which she was allegedly harassed, which was adversely affected. As the Tribunal stated in the judgment of 8 February 2011 in Skareby v Commission (F‑95/09, EU:F:2011:9, paragraph 26), a finding that psychological harassment has occurred, which is clearly a consequence of the opening and conduct of an administrative inquiry until its completion, is, in itself, likely to have a beneficial effect in the therapeutic process of recovery of an individual who has been harassed. The applicant was clearly deprived of that possible beneficial effect since, at least at the date on which the action was lodged, no report had been drawn up following an administrative inquiry. To this must be added, first, the fact that the Parliament manifestly failed to ensure that the new decisions taken in order to comply with the judgment in CH did not contain the irregularities that had justified annulment by that judgment of the previous decisions and, secondly, the applicant was obliged to embark for a second time on a pre-litigation procedure and then a litigation procedure in order to have her rights recognised.
119 The Parliament contends that the abovementioned claim for damages should be rejected, explaining that it undertook to set up a body, the Special APA Advisory Committee, to conduct administrative inquiries into complaints of harassment where the alleged perpetrator is a Member of the European Parliament. As regards the length of time it took to arrange the administrative inquiry, the Parliament states that, rather than ‘undertaking a semblance of an inquiry without the appropriate framework, which, in the end, would not have provided adequate safeguards’, it preferred to ‘acquire[, by adopting on 14 April 2014 the Internal APA Rules on Harassment,] a binding legal instrument that would give practical effect to Article 24 of the Staff Regulations’ in the context of the individual contractual relationships entered into with APAs. The Parliament considers also that the applicant ‘cannot claim to have suffered separable psychological harm that could be assessed in terms of a sum of money because it did not examine her request for assistance’.
Findings of the Tribunal
120 While the annulment of an unlawful measure, such as the decisions of 3 March and 2 April 2014 upheld by the decision rejecting the complaint, may constitute, in itself, adequate and, in principle, sufficient compensation for all non-material damage which that measure may have caused, that would not apply where an applicant shows that he has suffered non-material damage which is separable from the unlawfulness which is the basis for the annulment and which is incapable of being entirely repaired by that annulment (see, to that effect, judgments of 6 June 2006 in Girardot v Commission, T‑10/02, EU:T:2006:148, paragraph 131; of 19 November 2009 in Michail v Commission, T‑49/08 P, EU:T:2009:456, paragraph 88; and of 19 May 2015 in Brune v Commission, F‑59/14, EU:F:2015:50, paragraph 80).
121 The fact remains that in the present case the applicant clearly suffered psychological harm because, first, the Parliament, at the date on which the present case entered the deliberation stage, had still not properly processed the request for assistance she made under Article 24 of the Staff Regulations; secondly, at the date on which the present action was lodged no administrative inquiry had been initiated within the meaning of case law; and, thirdly, even though after the latter date the AECE finally entrusted to the Special APA Advisory Committee the task of conducting such an inquiry in its place, at the date on which the present case entered the deliberation stage the applicant had not yet been informed of the results of that inquiry nor of any measures suggested to the Quaestors or to the President of the European Parliament.
122 Since a request for assistance was duly made to the AECE in the present case on 22 December 2011, at a time when both the applicant and the Member of the European Parliament concerned were carrying out their respective duties within the institution, the AECE was still obliged to conduct an administrative inquiry, irrespective of whether the alleged harassment had ceased.
123 First, the possible acknowledgment of the existence of psychological harassment by the AECE, following an administrative inquiry that may have been conducted with the assistance of an advisory committee such as the Special APA Advisory Committee, is in itself likely to have a beneficial effect in the therapeutic process of recovery of an APA who has been harassed (see judgment of 8 February 2011 in Skareby v Commission, F‑95/09, EU:F:2011:9, paragraph 26) and may also be used by the victim for the purposes of a national court action, in respect of which the AECE’s duty to provide assistance under Article 24 of the Staff Regulations will apply and will not expire at the end of the APA’s period of employment.
124 Secondly, especially in a situation such as that in the present case where, at this stage, only allegations of harassment are at issue, the conduct of an administrative inquiry until its completion may, on the other hand, make it possible to disprove the allegations made by the purported victim, thus making it possible to repair the damage which such an accusation, if it were to prove unfounded, may have caused to the person named as the alleged harasser by an inquiry procedure.
125 Furthermore, as the applicant states, the feeling of injustice and the anxiety caused by the fact that an individual is required to undergo pre-litigation and litigation proceedings in order to secure recognition of his rights may constitute psychological harm that can stem from the mere fact that the administration acted unlawfully, bearing in mind that such harm is reparable where it is not compensated by the satisfaction resulting from the annulment of an act (see, to that effect, judgment of 7 February 1990 in Culin v Commission, C‑343/87, EU:C:1990:49, paragraphs 27 and 28). The same applies, inter alia, where, in connection with measures to comply with a judgment annulling an act, the administration repeats irregularities of the same nature as those which justified that annulment.
126 In the present case, in view of the failure to open an administrative inquiry promptly and conduct it to its conclusion, as asked for in the request for assistance and subsequently repeated, and of the fact that the applicant had to make further approaches to the administration of the Parliament and then bring further proceedings in order to obtain full recognition of her rights under Article 24 of the Staff Regulations, the Tribunal decides that a fair assessment of the psychological harm suffered by the applicant is to set compensation, ex aequo et bono, in respect of that claim for damages at EUR 25 000.
127 Furthermore, the Tribunal holds that it is necessary to grant the applicant’s request that interest should be added to that sum at the rate set by the ECB for principal refinancing operations, plus two basis points. In the absence of an indication of the date from which such default interest should apply, the Tribunal decides, in the context of its unlimited jurisdiction (see, to that effect, judgment of 8 July 1998 in Aquilino v Council, T‑130/96, EU:T:1998:159, paragraph 39), that such interest shall start to apply with effect from the date of adoption of the decision rejecting the complaint, namely 4 August 2014, since, until that date, the AECE still had, in principle, the option of opening an administrative inquiry as a measure to comply with the judgment in CH in order to fulfil the request to that effect made by the applicant on 15 January 2014.
128 As regards, lastly, the applicant’s argument based on infringement of the rights of the defence and the principle of sound administration in so far as she was not permitted to be accompanied by her lawyers during her interview with the Special APA Advisory Committee on 15 January 2015, the Tribunal merely finds that the allegations relate, in any event, to a time after the matter was referred to the Tribunal and cannot therefore be taken into account in order to determine the harm suffered.
129 In the light of all the above considerations, it is necessary for the Tribunal:
– to annul the decision of 2 April 2014, as upheld by the decision rejecting the complaint, in so far as the Parliament, in breach of Article 266 TFEU, refused to pay the applicant an additional amount of EUR 5 686 in compliance with the judgment in CH, and to order the Parliament to pay that amount to the applicant, plus default interest, from 1 July 2014, the date on which the applicant’s APA contract ended, at the rate set by the ECB for principal refinancing operations, plus two basis points;
– to annul the decision of 3 March 2014, as upheld by the decision rejecting the complaint, in so far as, following annulment of the decision rejecting the request for assistance by the judgment in CH, the Parliament failed to comply with Article 266 TFEU in not ordering, in accordance with its duty to provide assistance under Article 24 of the Staff Regulations and its duty to have due regard to the welfare of officials, the opening of an administrative inquiry into the allegations of psychological harassment;
– the claims for annulment must be rejected as to the remainder;
– order the Parliament to pay the applicant the sum of EUR 25 000 in compensation for the psychological harm suffered, plus default interest, from 4 August 2014, at the rate set by the ECB for principal refinancing operations, plus two basis points;
– the claims for damages must be rejected as to the remainder.
Costs
130 Pursuant to Article 101 of the Rules of Procedure, subject to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is to bear his own costs and is to be ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. Under Article 102(1) of those Rules, if equity so requires, the Tribunal may decide that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or even that he is not to be ordered to pay any costs.
131 It follows from the reasons given in the present judgment that the Parliament is, essentially, the unsuccessful party. In addition, in her pleadings, the applicant has expressly asked for the Parliament to be ordered to pay the costs. As the circumstances of the present case do not justify the application of Article 102(1) of the Rules of Procedure, the Parliament must be ordered to bear its own costs and to pay the costs incurred by CH.
On those grounds,
THE CIVIL SERVICE TRIBUNAL
(First Chamber)
hereby:
1. Annuls the decision of the European Parliament of 2 April 2014, as upheld by the decision of 4 August 2014 rejecting the complaint, in so far as the European Parliament, in breach of Article 266 TFEU, refused to pay CH an additional amount of EUR 5 686 in compliance with the judgment of 12 December 2013 in CH v Parliament (F‑129/12, EU:F:2013:203);
2. Annuls the decision of the European Parliament of 3 March 2014, as upheld by the decision of 4 August 2014 rejecting the complaint, in so far as, following annulment by the judgment of 12 December 2013 in CH v Parliament (F‑129/12, EU:F:2013:203) of the decision of the European Parliament of 15 March 2012 rejecting CH’s request for assistance, the European Parliament did not decide to open an administrative inquiry into the allegations of psychological harassment and thus failed to comply with Article 266 TFEU;
3. Rejects the claims for annulment as to the remainder;
4. Orders the European Parliament to pay CH the amount of EUR 5 686, plus default interest, from 1 July 2014, the date on which the applicant’s employment ended, at the rate set by the European Central Bank for principal refinancing operations, plus two basis points;
5. Orders the European Parliament to pay CH the sum of EUR 25 000 in compensation for the psychological harm suffered, plus default interest, from 4 August 2014, at the rate set by the European Central Bank for principal refinancing operations, plus two basis points;
6. Rejects the claims for damages as to the remainder;
7. Declares that the European Parliament shall bear its own costs and orders it to pay the costs incurred by CH.
Barents | Perillo | Svenningsen |
Delivered in open court in Luxembourg on 6 October 2015.