QH v Parliament (Staff Regulations of officials and Conditions of Employment - Principles of objectivity and impartiality - Judgment) [2019] EUECJ T-748/16 (02 May 2019)

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(Civil service — Members of the temporary staff — Article 24 of the Staff Regulations of Officials — Request for assistance — Article 12a of the Staff Regulations — Psychological harassment — Decision rejecting the request for assistance — Principles of objectivity and impartiality — Right to sound administration — Right to be heard)

QH, member of the temporary staff of the European Parliament, represented initially by N. Lhoëst and S. Michiels, and subsequently by N. Lhoëst, lawyers,

European Parliament, represented by M. Ecker and Í. Ní Riagáin Düro, acting as Agents,

APPLICATION based on Article 270 TFEU and seeking, first, annulment of the Parliament’s decision of 26 January 2016, by which the authority empowered to conclude contracts of employment of that institution rejected the request for assistance submitted by the applicant on 11 December 2014, and the decision of 12 July 2016, by which the authority empowered to conclude contracts of employment rejected the applicant’s claim, and, second, compensation for the loss which he allegedly suffered as a result of illegalities committed by that authority in dealing with the request for assistance,

composed of I. Pelikánová, President, V. Valančius and U. Öberg (Rapporteur), Judges,

having regard to the written part of the procedure and further to the hearing on 20 September 2018,

1 The applicant, QH, is a temporary staff member in grade AST 6, in accordance with Article 2(c) of the Conditions of Employment of Other Servants of the European Union, working within the ‘Group of the Progressive Alliance of Socialists and Democrats in the European Parliament’ (‘the S&D Group’).

2 Initially, under a contract of 1 March 2007, the applicant was recruited as a temporary staff member in grade AST 3 by the authority empowered to conclude contracts of employment of the European Parliament (‘the AECE’), following the procedure organised by the ‘Alliance of Liberals and Democrats for Europe’ Group for the recruitment of an Italian-language press officer.

4 On 15 July 2009, the applicant was transferred from the Alliance of Liberals and Democrats for Europe Group to the S&D Group, in the ‘Press and Communications’ unit of that group.

5 After his transfer, the applicant filed a claim under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), to be classified in the administrators’ function group. His claim was rejected on 3 March 2010.

7 Believing himself to be the victim of psychological harassment since the lodging of his claim, the applicant submitted, on 11 December 2014, a request for assistance, on the basis of Article 24 and Article 90(1) of the Staff Regulations (‘the request for assistance’), those articles being applicable by analogy to members of the temporary staff pursuant to Article 11 and Article 46 of the Conditions of Employment of Other Servants of the European Union respectively. In support of that request, he submitted that, since 2009, when his claim was lodged, he had been subjected to continuous harassment, isolation, marginalisation, attempts to downgrade his responsibilities and attacks on his dignity.

8 The request for assistance was directed against the following persons: [confidential]. (1)

9 In his request for assistance, the applicant requested the President of the S&D Group, in his capacity as the AECE, to open an administrative inquiry and to protect him from the alleged harassment by temporarily reassigning him to a similar post in another unit.

10 On 16 December 2014, the President of the S&D Group, in his capacity as the AECE, asked the Secretary-General of the Parliament to open an administrative inquiry.

11 On 10 March 2015, the Secretary-General of the Parliament asked for an inquiry to be carried out to establish the facts giving rise to the request for assistance and to assess whether the accusations of psychological harassment were justified. On the same date he appointed an administrator in the Staff Management and Careers Unit of the Directorate-General for Personnel of the Parliament as investigator in charge of the administrative enquiry (‘the investigator’).

12 On 21 May 2015, the applicant was transferred to the post of Communications Policy Adviser with the Citizenship and Political Planning Department of the S&D Group and, on 1 October 2015, to the External Action Department of that group, within the ‘Global Progressive Forum’ project team.

13 On 10 November 2015, the investigator delivered his report on the findings of the administrative inquiry concerning the applicant. He found in particular that although two out of the four criteria permitting a situation to be classified as psychological harassment were met, the other two, however, were not. In that regard, he took the view that the acts referred to were intentional and repetitive, but that they did not have the effect of undermining the personality, dignity or physical or psychological integrity of the applicant and did not, objectively, constitute improper conduct.

14 By letter of 27 November 2015, the President of the S&D Group, in his capacity as the AECE, informed the applicant of his intention to reject the latter’s request for assistance and of the grounds for that rejection — which were, in essence, the same as those given by the investigator — as well as of his right to be heard.

15 On 11 December 2015, the applicant was heard by the Secretary-General of the S&D Group, in the presence of the Head of Unit for Staff Rights and Obligations of the Legal Service of the Parliament.

16 By decision of 26 January 2016, the President of the S&D Group, in his capacity as AECE, rejected the request for assistance, in essence for the same reasons as those set out by the investigator (‘the contested decision’).

17 On 26 April 2016, the applicant brought a claim following the rejection of his request for assistance which, by decision of 12 July 2016, was also dismissed by the President of the S&D Group, acting as the AECE (‘the decision rejecting the claim’).

19 By application lodged at the General Court Registry on 22 October 2016, the applicant brought the present action.

21 By letter of 30 March 2017, in accordance with Article 125a of the Rules of Procedure of the General Court, the Judge Rapporteur, who was instructed to do so by that Court, proposed to the parties that they should examine the possibilities of an amicable settlement of the dispute. No agreement was reached between the parties to explore these possibilities.

22 By order of 7 April 2017, the General Court (First Chamber) ordered the Parliament, on the basis of Articles 91(b), 92(3) and 103 of the Rules of Procedure, to produce the confidential internal report of the administrative inquiry concerning the request for assistance in its entirety and all its annexes, including the minutes of hearings and written testimonies of witnesses, written declarations and the statement in response to the request for assistance prepared by the lawyers of the S&D Group and of the alleged harassers, together with the non-confidential version of the internal report of the administrative inquiry which had already been communicated to the applicant, whilst stating that those documents would not be communicated to the applicant at that stage of the procedure.

23 On 28 April 2017, the Parliament produced the documents requested and asked for confidential treatment so far as the applicant was concerned of the confidential version of the internal administrative inquiry report and the defence prepared by the S&D Group and the alleged harassers’ lawyers.

24 By letter of the General Court Registry of 20 July 2017, the parties were informed of the Court’s finding that the documents produced by the Parliament in pursuance of the order of 7 April 2017 were relevant for the purpose of the ruling in the case — except for a list of the applicant’s colleagues that was removed from the file — and are non-confidential so far as the applicant is concerned. The documents deemed relevant were placed on the file and communicated to the applicant.

25 By letter of the General Court Registry of 21 July 2017, the parties were requested, by way of measures of organisation of procedure adopted by the Court under Articles 83(3) and 89(2)(b) and (c) and (3)(a) of the Rules of Procedure, to answer certain questions and to set out their position on points to which the second exchange of pleadings would relate.

26 Following a double exchange of pleadings, the written procedure was closed on 20 November 2017.

27 By letter from that Registry of 17 January 2018, the parties were informed of the Court’s decision to reject a request made by the applicant to reopen the written procedure in order to submit written observations on the Parliament’s rejoinder.

– order the Parliament to pay EUR 15 000 in compensation for the material harm suffered and EUR 100 000 in compensation for the non-material harm;

31 It must be borne in mind that, in accordance with settled case-law, a claim for annulment formally directed against a decision rejecting a claim has the effect of bringing before the Court the act against which the claim was submitted, where that claim, as such, lacks any independent content (judgment of 6 April 2006, Camós Grau v Commission, T‑309/03, EU:T:2006:110, paragraph 43 and the case-law cited).

32 In the present case, given that the decision rejecting the claim merely confirms the contested decision, it must be held that the claim for annulment of the decision rejecting the claim lacks any independent content and it is therefore not appropriate to rule specifically on it, even though, in the review of the legality of the contested decision, account should be taken of the statement of reasons contained in the decision rejecting the claim.

33 In support of his claim for annulment, the applicant puts forward five pleas in law, alleging, respectively:

– a conflict of interest and infringement of the rights of the defence, the adversarial principle, the principle of equality of arms, of Article 41(2) and of Article 42 of the Charter of Fundamental Rights of the European Union (‘the Charter’);

– a manifest error of assessment in the appointment of the investigator, a lack of independence and impartiality on the part of the investigator and breach by the investigator of his mandate;

– infringement of the obligation to state reasons for a decision closing an administrative inquiry;

– manifest error in the assessment of the grounds for psychological harassment.

34 Since the first and fourth pleas both allege, at least in part, an infringement of Article 41 of the Charter, the Court considers it appropriate to examine them together.

35 By its first and fourth pleas, the applicant puts forward, in essence, two complaints, alleging, first, the existence of a conflict of interest concerning the President of the S&D Group, acting in his capacity as the AECE, and, second, infringement of the rights of the defence and of the principles of inter partes proceedings and equality of arms and of the right to sound administration under Article 41(1) and (2) of the Charter.

36 First of all, according to the applicant, the fact that the President of the S&D Group was called upon, in his capacity as AECE, to rule on the request for assistance and that the S&D Group has instructed a law firm to assist it, organise the defence of the alleged harassers and prepare the reply to the request for assistance shows that the S&D Group had an interest in those harassment complaints being rejected.

37 Next, the applicant pleads infringement of Article 41(1) of the Charter and of the duty of care of the public authorities towards the staff of the Civil Service, in that following up the request for assistance and the administrative inquiry suffered excessive delays and a lack of transparency so far as he was concerned.

38 The applicant also points out that the alleged harassers were, from the start of the administrative procedure, assisted by a law firm instructed by the S&D Group, while the applicant was refused the presence of a lawyer at a meeting with the investigator. He adds that the S&D Group had, moreover, sent his request for assistance and the annexes to the alleged harassers or to their lawyers, while he was refused access to the entire inquiry report, the written declarations and the response of the law firm of the alleged harassers.

39 Furthermore, the applicant claims that it is apparent from the statements of the investigator that the latter had access to and took into consideration the written statements and the response submitted by the law firm of the S&D Group and the alleged harassers, such that those documents ought also to have been sent to him so that he could express his views in that regard. The applicant claims that the inquiry report is clearly biased, contains numerous factual errors and a false accusation of blackmail, draws unsubstantiated negative conclusions and distorts witnesses’ statements.

40 The applicant also notes that he has received only an anonymised version of the inquiry report, without annexes, and that the Parliament refused to grant him access to that report in its entirety with all its annexes, including the minutes of hearings and written testimonies of witnesses and the written statements and response submitted by the law firm of the alleged harassers. In that regard, the applicant submits that he has a legitimate interest in learning the content of the inquiry report and its annexes in order to understand the reasons for rejecting his request for assistance, particularly as he suspects an absence of consistency between the content of the witness statements and the content of that report.

41 Those elements, in essence, constitute an infringement of the rights of the defence, the adversarial principle, the principle of equality of arms and the right to sound administration pursuant to Article 41(1) and (2) of the Charter.

42 Finally, the applicant submits that, by communicating his request for assistance to the alleged harassers or their lawyers, and by disclosing information about that request for assistance at a meeting of the ‘Press and Communications’ Unit, the S&D Group infringed the principles of discretion and confidentiality as laid down in Article 41(2) of the Charter.

43 The Parliament contends that the first and fourth pleas should be rejected as unfounded. The Parliament disputes, first of all, the existence of a conflict of interest concerning the President of the S&D Group, in his capacity as AECE, and maintains that the investigator drew up his report without taking into account the written statements and the response submitted by the law firm of the S&D Group and the alleged harassers. In those circumstances, it was justified not to disclose those statements to the applicant.

44 Next, the Parliament refutes the allegations of unreasonable delays in the administrative procedure and a lack of transparency. It adds that it has not been proved that the alleged harassers received the request for assistance or its annexes. According to the Parliament, the principle of confidentiality does not prevent persons accused of harassment being informed of such an accusation and does not hinder the S&D Group in its duty to restore the reputation of colleagues who have been unfairly accused.

45 Finally, the Parliament refers to paragraphs 132 and 133 of the judgment of 11 July 2013, Tzirani v Commission (F‑46/11, EU:F:2013:115), to assert that there was no obligation to provide the applicant with the final inquiry report in its entirety. In the Parliament’s view, there was justification for providing the applicant with only a non-confidential version of that report, without its annexes.

46 For the purposes of this case, the Court will first examine the applicant’s complaints relating to infringement of Article 41(1) and (2) of the Charter.

47 It is appropriate first to recall that Article 41 of the Charter, entitled ‘Right to good administration’, provides, in paragraph 1, that every person has the right to have his or her affairs handled, inter alia, impartially and fairly by the institutions and bodies of the Union.

48 That requirement of impartiality encompasses, on the one hand, subjective impartiality, in so far as no member of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, on the other hand, objective impartiality, in so far as there must be sufficient guarantees to exclude any legitimate doubt as to bias on the part of the institution concerned (see judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 155 and the case-law cited). The present complaint concerns only objective impartiality.

49 Furthermore, the right to good administration includes, inter alia, the right, under Article 41(2)(a) of the Charter, of every person to be heard, before any individual measure which would affect him or her adversely is taken.

50 In that regard, it must also be borne in mind that the purpose of an administrative inquiry opened by the administration, in response to a request for assistance within the meaning of Article 24 of the Staff Regulations, is to shed light, by the findings of the inquiry, on the disputed facts, so that the administration may adopt a definitive position in that regard, so that it may either decide that no action is to be taken on the request for assistance or, where the facts alleged are proven and come within Article 12a of the Staff Regulations, possibly initiate disciplinary proceedings so that, if appropriate, disciplinary sanctions may be imposed on the alleged harasser (see judgment of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraph 57 and the case-law cited).

51 Where, in response to a request for assistance, the administration decides that the evidence provided in support of the request for assistance are unfounded and that accordingly the conduct relied on does not constitute psychological harassment within the meaning of Article 12a of the Staff Regulations, such a decision adversely affects the person who requested assistance (see, to that effect, judgment of 12 September 2007, Combescot v Commission, T‑249/04, EU:T:2007:261, paragraph 32), and adversely affects him within the meaning of Article 41(2)(a) of the Charter.

52 The right to be heard thus has a dual objective: on the one hand, it serves the investigation of the file and the establishment of the facts as precisely as possible and, on the other, it enables effective protection of the person concerned to be ensured. The right to be heard is intended in particular to ensure that any decision adversely affecting a person is adopted with full knowledge of the facts and the objective thereof is, inter alia, to enable the competent authority to correct an error or to allow the person concerned to produce such information relating to his personal circumstances as will tell in favour of the decision’s being adopted or not, or of its having a given content rather than another (see judgment of 13 December 2017, HQ v CPVO, T‑592/16, not published, EU:T:2017:897, paragraph 85 and the case-law cited).

53 Accordingly, an applicant for assistance must of necessity, in accordance with Article 41(2)(a) of the Charter, be properly heard before a decision to reject the request for assistance is adopted by the administration. That implies that the person concerned is heard in advance concerning the grounds on which the administration intends to rely in support of the rejection of that request (judgment of 29 June 2018, HF v Parliament, T‑218/17, under appeal, EU:T:2018:393, paragraph 74; see also, to that effect, judgment of 22 October 2013, Sabou, C‑276/12, EU:C:2013:678, paragraph 38).

54 Finally, it is for the EU institution, body or agency to adduce evidence that the person concerned was put in a position properly to give his point of view on the draft decision rejecting his request for assistance or his complaint of psychological harassment (see, by analogy, judgments of 6 December 2007, Marcuccio v Commission, C‑59/06 P, EU:C:2007:756, paragraph 47; of 3 June 2015, BP v FRA, T‑658/13 P, EU:T:2015:356, paragraph 54; and of 5 October 2016, ECDC v CJ, T‑395/15 P, not published, EU:T:2016:598, paragraph 57).

55 In the present case, it is not disputed that the alleged harassers were represented by the same law firm as that which assisted the S&D Group from the start of the administrative inquiry. As the Parliament states in its defence, the S&D Group engaged the services of the same law firm in order, on the one hand, to obtain detailed legal advice enabling the situation set out in the request for assistance to be properly addressed and, on the other, to ensure that it properly prepared the defence of the alleged harassers. However, on 25 March 2015, the investigator sent the applicant a letter in which he informed him that, ‘as [it was] the pre-litigation phase, the presence of a lawyer [was] not necessary, and [would] not therefore be allowed [at a meeting with him]’.

56 Next, the Court finds that the lawyers of the S&D Group received the request for assistance in its entirety and that it may thus be presumed that the content of that request was also made known to the alleged harassers. Indeed, it is clear from the reply of the lawyers for the alleged harassers, sent to the investigator by letter of 15 April 2015, that the alleged harassers must have been aware of the content of the request for assistance, since they respond point by point to its allegations.

57 However, the applicant could not obtain either the written statements or the response of the law firm of the alleged harassers to the request for assistance, so that he was unable to submit his observations with regard to the allegations of the alleged harassers.

58 Moreover, it is apparent from the emails sent to the applicant by the investigator, dated 20 and 22 April 2015, that the investigator received and analysed the response of the lawyers for the S&D Group and the alleged harassers to the request for assistance. Although the investigator has claimed not to have taken into account the statements set out in that response in drafting the final inquiry report, the Court finds that, as those statements had been sent to him, they seem to have had an influence on his findings and on the final inquiry report. First, it is apparent from the email of 20 April 2015 that the investigator received the response of the lawyers for the alleged harassers. In that email, the investigator stated that he had postponed the meeting scheduled with the applicant ‘in order to analyse [that] response’. Second, the inquiry report repeats certain allegations made by the alleged harassers set out in that response, such as the applicant’s aggressive, negative and individualist conduct, serious and unsubstantiated allegations of blackmail by the applicant and his demands for ‘tailor-made’ solutions, without the applicant having had the opportunity of submitting his comments in that regard.

59 Moreover, the Court finds that the statements made in the response of the lawyers for the S&D Group and the alleged harassers to the request for assistance, including allegations of blackmail, also formed the basis of the contested decision and the decision rejecting the complaint.

60 It follows from the foregoing that the applicant was unable properly to make known his viewpoint on the statements and observations which served as the basis for the inquiry report and the contested decision and was entitled to have justified misgivings concerning the objective impartiality of an EU institution in the handling of his complaint of psychological harassment.

61 Accordingly, his right to be heard before a decision rejecting his request for assistance, as laid down in Article 41(2)(a) of the Charter, and his right to have his affairs handled impartially and fairly by the EU institutions, as provided for in Article 41(1) of the Charter, have been infringed.

62 With regard to the consequence of the failure to comply with the right to good administration, it must be borne in mind that, in accordance with the case-law, even where there has been infringement of the right to be heard, it is also necessary, for the plea to be successful, that had it not been for that irregularity, the outcome would have been different (see, to that effect, order of 14 April 2016, Dalli v Commission, C‑394/15 P, not published, EU:C:2016:262, paragraph 41; judgments of 6 February 2007, Wunenburger v Commission, T‑246/04 and T‑71/05, EU:T:2007:34, paragraph 149; and of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 157).

63 In the present case, the applicant submits, in essence, that if he had been properly heard before the contested decision was adopted, he could have been informed of the specific complaints against him of the alleged harassers, which complaints were subsequently accepted by the investigator, and thus submit his observations to contest the facts and allegations contained in the inquiry report on which the AECE relied.

64 In that regard, it is apparent from paragraphs 58 and 59 above that the contested decision, the final report of the investigator and the statements of the alleged harassers have a certain consistency so that it may be considered that the allegations of the alleged harassers have significantly influenced the investigator, without the applicant having been heard concerning those allegations, meaning that a result other than that reached in the proceedings would have been possible.

65 It cannot be excluded that the assessment of the investigator and the AECE might have been different if the applicant had been properly heard before the contested decision was adopted.

66 Consequently, it is appropriate to uphold the complaints alleging infringement of Article 41(1) and (2)(a) of the Charter and to annul the contested decision, as confirmed by the decision rejecting the complaint, in its entirety, without it being necessary to examine the other complaints and pleas put forward by the applicant.

67 In support of his claim for compensation, the applicant submits that he has suffered non-material damage as a result of the errors and illegalities committed by the AECE in the handling of his request for assistance, which damage would not be entirely remedied by the annulment of the contested decision. He was, in particular, exposed to a state of uncertainty and distress. On those grounds, he claims an amount of EUR 25 000.

68 The applicant also claims an amount which he assesses provisionally at EUR 40 000 in respect of non-material damage resulting from the infringement by the S&D Group of the duty of care and the duty of assistance towards him and from the deterioration in his state of health from August 2012 onwards, due to the distressing situation in which he found himself, and the constant harassment to which he was subjected.

69 Next, the applicant claims to have suffered non-material damage as a result of maladministration attributable to the Parliament, due, on the one hand, to breach of the obligation of confidentiality and of the rules on the protection of personal data and, on the other, damage to his reputation and credibility. In that respect, the applicant claims the amounts of EUR 30 000 and EUR 5 000 respectively.

70 Furthermore, the applicant claims an amount of EUR 15 000 on account of material damage corresponding to the loss of the opportunity to further his career.

71 The Parliament contends that the claims for compensation should be rejected, noting that, in the present case, the contested decision was lawful and well-founded, that the applicant has not established that his health problems resulted from the existence of psychological harassment, that, furthermore, he did not suffer any psychological harassment and that no maladministration can be attributed to the S&D Group. The Parliament adds that the applicant has not established that it was impossible for him to progress in his career.

72 As a preliminary point, it must be borne in mind that the European Union can be held liable for damages only if a number of conditions are satisfied as regards the illegality of the allegedly wrongful act committed by the institutions, the actual harm suffered, and the existence of a causal link between the act and the damage alleged to have been suffered (see judgment of 1 April 2004, N v Commission, T‑198/02, EU:T:2004:101, paragraph 134 and the case-law cited).

73 With regard to non-material harm, it is settled case-law that the annulment of an illegal act, such as the contested decision, in itself constitutes appropriate and, in principle, sufficient compensation for any non-material harm which that act may have caused. However, that is not the case where the applicant shows that he has sustained non-material harm that can be separated from the illegality justifying the annulment and that cannot be compensated for in full by that annulment (see, to that effect, judgments of 6 June 2006, Girardot v Commission, T‑10/02, EU:T:2006:148, paragraph 131; of 19 May 2015, Brune v Commission, F‑59/14, EU:F:2015:50, paragraph 80; and of 16 July 2015, Murariu v EIOPA, F‑116/14, EU:F:2015:89, paragraph 150).

74 In the present case, as regards the non-material damage suffered by the applicant as a result of the unlawfulness of the contested decision and the maladministration attributable to the Parliament, it must be noted that the applicant merely stated that he has been in a state of uncertainty and distress and has suffered damage to his reputation and credibility. However, he has failed to adduce the necessary evidence to support those assertions and the claims for compensation made in that regard must be rejected.

75 As regards the material damage and the non-material damage allegedly caused by the psychological harassment and the alleged breach of the duty of care and assistance, including the effects on the applicant’s state of health, it is clear that those heads of damage are directly linked to the finding that the conduct alleged in the request for assistance constitute psychological harassment within the meaning of Article 12a of the Staff Regulations. The Court finds that the AECE, whose task it will be to re-examine the request for assistance, after carrying out a new administrative inquiry, will also have to take a position on whether or not that conduct is caught by Article 12a of the Staff Regulations. Those claims for damages are therefore premature and must be rejected.

76 Accordingly, assuming that the claims for compensation are admissible, in particular with regard to compliance with the procedure laid down in Article 90(1) of the Staff Regulations, they must be rejected in their entirety.

77 Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs.

78 It follows from the foregoing that each party fails on at least one head of claim. Each party must therefore be ordered to bear its own costs.

1. Annuls the decision of the European Parliament of 26 January 2016 rejecting QH’s request for assistance, as confirmed by the decision of 12 July 2016 rejecting the complaint;

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> QH v Parliament (Staff Regulations of officials and Conditions of Employment - Principles of objectivity and impartiality - Judgment) [2019] EUECJ T-748/16 (02 May 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/T74816.html Cite as: ECLI:EU:T:2019:274, EU:T:2019:274, [2019] EUECJ T-748/16

Court of Justice of the European Communities (including Court of First Instance Decisions)