JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(First Chamber)

6 October 2015

Case F‑132/14

CH

v

European Parliament

(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)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which CH seeks: 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 the applicant’s 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 the applicant 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 it 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 as compensation for the applicant’s material and non-material harm.

Held:      The decision of the European Parliament of 2 April 2014, as upheld by the decision of 4 August 2014 rejecting the complaint, is annulled 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). The decision of the European Parliament of 3 March 2014, as upheld by the decision of 4 August 2014 rejecting the complaint, is annulled in so far as, following the 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 of 22 December 2011, 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. The claims for annulment are rejected as to the remainder. The European Parliament is ordered to pay CH the amount of EUR 5,686, plus default interest, from 1 July 2014, the date on which CH’s employment ended, at the rate set by the European Central Bank for principal refinancing operations, plus two basis points. The European Parliament is ordered 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. The claims for damages are rejected as to the remainder. The European Parliament shall bear its own costs and is ordered to pay the costs incurred by CH.

Summary

1.      Actions brought by officials — Judgment annulling a measure — Effects — Obligation to implement — Annulment of a decision to dismiss an accredited parliamentary assistant — Calculation of the remuneration due — Deduction of holiday pay received from a private employer — Not permissible

(Art. 266 TFEU)

2.      Actions brought by officials — Judgment annulling a measure — Effects — Obligation to implement — Annulment of a decision to dismiss an accredited parliamentary assistant — Exemption from carrying out duties in the interests of the service — Obligation to restore the work tools associated with the post to the person concerned — None

(Art. 266 TFEU)

3.      Actions brought by officials — Judgment annulling a measure — Effects — Obligation to implement — Administration’s discretion — Authority empowered to conclude contracts of employment rejecting a request for assistance without an administrative inquiry — Information provided by the person making the request and information known to the administration not taken into account — Not permissible

(Staff Regulations, Arts 12a and 24)

4.      Actions brought by officials — Actions for damages — Annulment of the contested measure not ensuring adequate compensation for material damage — Compensation for the loss of an opportunity of being recruited — Criteria

(Art. 340 TFEU)

1.      Following the annulment of a dismissal decision by the EU judicature, pursuant to Article 266 TFEU, the defendant institution is required to take the necessary measures to comply with the judgment having reference to the date on which the dismissal decision annulled by that judgment was taken. In this regard, where the person concerned is bound by a contract of employment as an accredited parliamentary assistant (APA), the reinstatement of the legal situation in which the person concerned was before the adoption of the annulled dismissal decision meant that the EU judicature should pay him the difference between the amount of remuneration to which he would have been entitled if he had remained in service and had actually carried out the duties of an APA and, on the other hand, the remuneration or unemployment benefit he actually received from other sources. To take into account the holiday pay received from the private employer as remuneration or an allowance in lieu received during the double income period, that is, the period between the date of the unlawful dismissal and the date when the person concerned ceased to received remuneration from the private employer, 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 holiday pay is deemed to cover in terms of remuneration.

(see paras 61, 62, 65)

2.      By way of measures to comply with a judgment annulling a decision to dismiss an accredited parliamentary assistant (APA), 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 institution’s authority empowered to conclude contracts of employment was entitled to consider that it should not assign the person concerned, 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.

In that regard, even though officials and other staff of the institution concerned in active employment are normally, in order to carry out their duties, granted a permanent right of access to the premises of the institution and 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, since the person concerned was not required to carry out her duties as an APA for the remainder of her contract of employment, the institution concerned was not obliged to restore the pass and the sticker she claimed by way of a compliance measure stemming directly from the annulling judgment.

Furthermore, 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 in which the person concerned has been exempted from carrying out his duties in the interests of the service.

(see paras 68, 70, 71, 74)

3.      The duty to provide assistance includes, in particular where allegations of harassment have been made, 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. With regard to the measures to be taken, the administration enjoys a broad discretion — subject to review by the EU judicature — regarding the choice of measures and methods for implementing Article 24 of the Staff Regulations. 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.

That being so, in respect of alleged harassment, where the person against whom allegations have been made is a person elected to hold an office provided for in the Treaties, 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.

Thus, where the information supplied at the time of the request for assistance, which was rejected without an administrative inquiry having been initiated, and that disclosed subsequently at the time of the request for measures to comply with a judgment annulling a measure, constitute evidence capable of creating serious doubt as to whether the conditions laid down in Article 12a of the Staff Regulations are satisfied, the effect of the annulment of the decision rejecting the request for assistance is to refer again the request for assistance, which remained unresolved, to the authority empowered to conclude contracts of employment. Accordingly, the Parliament’s authority empowered to conclude contracts of employment is obliged, in connection with the measures to be taken to comply with the annulling judgment, to provide a proper response to that request for assistance, in particular by opening an administrative inquiry, especially since there is nothing to prevent the Parliament, on the basis of Article 9(2) of its Rules of Procedure, from inviting a Member of the European Parliament 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.

(see paras 86, 88-90, 93, 94)

See:

Judgment of 9 November 1989 in Katsoufros v Court of Justice, 55/88, EU:C:1989:409, paragraph 16

Judgments of 28 February 1996, Dimitriadis v Court of Auditors, T‑294/94, EU:T:1996:24, paragraph 39; 15 September 1998 in Haas and Others v Commission, T‑3/96, EU:T:1998:202, paragraph 54 ; 4 May 2005 in Schmit v Commission, T‑144/03, EU:T:2005:158, paragraphs 98 and 108; 25 October 2007 in Lo Giudice v Commission, T‑154/05, EU:T:2007:322, paragraph 137

Judgments of 27 November 2008 in Klug v EMEA, F‑35/07, EU:F:2008:150, paragraph 74; 16 September 2013 in Faita v EESC F‑92/11, EU:F:2013:130, paragraph 98; 26 March 2015 in CN v Parliament, F‑26/14, EU:F:2015:22, paragraph 56, and 26 March 2015 in CW v Parliament, F‑124/13, EU:F:2015:23, paragraphs 38, 39 and 143, the subject of an appeal before the General Court in Case T‑309/15 P

4.      In the context of a claim for compensation for material damage arising from the loss of an opportunity of being recruited, first, the opportunity lost must have been actual and, secondly, such loss must be definitive. 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.

In a case such as that of an accredited parliamentary assistant (APA), where it appears that 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. As regards a reduced opportunity of being recruited by a newly elected Member of the European Parliament as a result of the delay in making work tools available, it should be pointed out that, 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.

(see paras 109-112)

See:

Judgment of 21 February 2008 in Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraph 54

Judgments of 5 October 2004 in Eagle and Others v Commission, T‑144/02, EU:T:2004:290, paragraph 165, and 6 June 2006 in Girardot v Commission, T‑10/02, EU:T:2006:148, paragraph 96

Judgments of 5 July 2011 in V v Parliament, F‑46/09, EU:F:2011:101, paragraph 159; 17 October 2013 in BF v Court of Auditors, F‑69/11, EU:F:2013:151, paragraph 73, and 19 May 2015 in Brune v Commission, F‑59/14, EU:F:2015:50, paragraph 76