BG v Parliament (Civil service - Accredited parliamentary assistants - Judgment) [2021] EUECJ T-253/19 (14 July 2021)

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(Civil service – Accredited parliamentary assistants – Termination of the contract – Breakdown in the relationship of trust – Obligation to state reasons – Right to be heard – Psychological harassment – Request for assistance – Retaliation – Manifest errors of assessment – Liability)

European Parliament, represented by I. Lázaro Betancor and I. Terwinghe, acting as Agents,

APPLICATION under Article 270 TFEU for, first, annulment of the Parliament’s decision of 18 May 2018 to terminate the applicant’s contract as an accredited parliamentary assistant and, secondly, compensation for the non-material damage which she claims to have suffered,

composed of J. Svenningsen, President, C. Mac Eochaidh and T. Pynnä (Rapporteur), Judges,

having regard to the written part of the procedure and further to the hearing on 13 October 2020,

1 The applicant, BG, was recruited as an accredited parliamentary assistant (‘APA’) by the authority empowered to conclude contracts of employment (‘the AECE’) of the European Parliament, pursuant to Article 5a of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), to assist A, a Member of the Parliament, under two successive contracts.

2 From 17 May to 31 December 2013, the applicant was thus classified in function group I, grade 5.

3 From 1 January 2014 until the end of the 2009/2014 legislature, the applicant was classified in function group II, grade 10.

4 On expiry of A’s mandate, the applicant, with effect from 2 July 2014, was employed by the AECE of the Parliament as an APA to assist B, a newly elected Member of the Parliament (‘the Member’), under a contract which was to expire on 2 August 2015. The applicant was classified in function group I, grade 6.

5 On 23 July 2014, the Member requested that the applicant’s contract be amended so as to reclassify her to function group II, grade 19 (‘grade 19’).

6 With effect from 24 July 2014, under a new contract between the AECE and the applicant, she was employed in grade 19. The new contract was due to expire on 2 August 2015.

7 By an additional clause to the contract, signed by the AECE and the applicant, it was agreed with effect from 3 August 2015 that ‘the contract [with the applicant as an APA], which took effect on 24 [July] 2014’ would be extended until the end of the 2014/2019 legislature.

8 On 9 June 2017, the applicant, in essence, informed the Advisory Committee dealing with harassment complaints between APAs and Members of the European Parliament and its prevention at the workplace (‘the APA Special Advisory Committee’), established by a decision of the Bureau of the Parliament of 14 April 2014, of her intention to file, in her words, a ‘complaint of psychological harassment’ against the Member. The applicant’s email was composed of two sentences, did not provide any facts and had no annexes.

9 On 27 June 2017, the applicant lodged a request for assistance (‘the request for assistance’) with the AECE pursuant to Article 24 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), which applies to APAs by analogy by virtue of Article 127 of the CEOS. She asked the AECE for ‘support in all possible ways’, referring to various matters regarding the Member’s conduct towards her, linked, in particular, to national criminal proceedings brought against the Member in which the applicant had been called upon to give evidence. No annexes accompanied the request for assistance.

10 Using a form headed ‘Request for termination of an [APA’s] contract’, received on 30 June 2017, the Member sent to the Parliament’s ‘Recruitment’ unit for contract staff and APAs a request for early termination of the applicant’s contract as an APA (‘the first request for termination’). In support of that request, the Member claimed there had been a loss of trust owing, first, to behaviour liable to harm his image and, secondly, to behaviour not in keeping with the dignity of the post of an APA.

11 On 13 July 2017, the applicant lodged a complaint of psychological harassment against the Member with the APA Special Advisory Committee (‘the harassment complaint’). It is apparent, in essence, from that document, which is similar in content to the request for assistance, that the applicant complained of being subjected to psychological harassment and extortion by the Member. First of all, she claimed, he had forced her to pay over to him a large share of her salary as an APA. Next, he had overloaded her with work, which obliged her to work outside her working hours, including weekends and holidays. He had also asked her to perform tasks unrelated to her professional duties. Lastly, following revelations in the national press in February 2017 concerning the extortion in question, he had repeatedly exerted pressure on the applicant in connection with the testimony which she was to provide to the national public prosecutor and to the European Anti-Fraud Office (OLAF) in connection with their respective investigations into the Member’s conduct.

12 On 31 July 2017, the applicant told the APA Special Advisory Committee that she had been informed that the Member had been made aware of her ‘complaint’ of harassment.

13 On 7 November 2017, the Member made a second request for early termination of the applicant’s contract of employment to the same unit and using the same form as those referred to in paragraph 10 above (‘the second request for termination’). According to that document, termination of the contract was requested on the grounds of loss of trust owing to behaviour liable to harm the image of the Member, behaviour not in keeping with the dignity of the post, insufficient professionalism and care with work, and lack of discretion. In support of his allegations, the Member submitted a series of emails which had passed between his former adviser, C, and the applicant (‘the 2014 emails’). Those emails were exchanged between 21 July and 22 September 2014.

14 On 18 December 2017, the Member lodged, with a national court, a criminal complaint of false accusation, defamation and instigation of such acts, directed against ‘all persons culpable of acts of dissemination and reliance on false events before the [APA] Advisory Committee … which were partly based on the content of emails that have been allegedly exchanged between [the applicant] and [C]’ (‘the criminal complaint’). The alleged date of commission of the purported offences was 13 July 2017.

15 On 23 January 2018, the APA Special Advisory Committee adopted its findings on the applicant’s complaint of psychological harassment. It concluded, in view of its assessment of the Member’s conduct, that none of the acts alleged by the applicant had been established and that the criterion for the definition of psychological harassment, within the meaning of Article 12a of the Staff Regulations, namely the existence of improper conduct, had consequently not been met. Furthermore, since none of the alleged acts had been established, that committee also found that the applicant had not been the victim of excessive or reprehensible acts committed repeatedly and systematically by the Member.

16 By letter of 19 April 2018, the President of the Parliament, having taken note of the findings of the APA Special Advisory Committee, stated that the first criterion required to classify a situation as psychological harassment, namely intentional acts, had not been satisfied, and informed the applicant that he would transfer her file to the AECE so that it could take a decision on the request for assistance. As regards the applicant’s allegation that the Member had asked her to give part of her salary to him, he stated, inter alia, that it was not disputed that the applicant had withdrawn money from her account every month shortly after receiving her salary, but that it was not possible to draw any conclusions as to what happened to that money. In that regard, he observed that, even though that situation had lasted two and a half years, the applicant had not alerted the Parliament’s authorities, submitted a complaint or sought to put an end to it.

17 By decision of 23 April 2018, the acting Director-General of the Parliament’s Directorate-General (DG) for Personnel informed the applicant that, as a result of the opinion of the APA Special Advisory Committee and the decision of the President of the Parliament, he had rejected her request for assistance (‘the decision refusing assistance’) and removed the exemption on reporting to work which had been granted to her for the time necessary to deal with her request for assistance.

18 By email of 24 April 2018, the AECE informed the applicant that the Member had sent it a request for an early termination of her employment contract, sent her the second request for termination, and invited her to a preliminary interview (‘the invitation to a preliminary interview’), as laid down in the third subparagraph of Article 20(4) of the implementing measures for Title VII of the CEOS, adopted by a decision of the Bureau of the Parliament of 14 April 2014 and last amended by a decision of the Bureau of the Parliament of 2 October 2017 (‘the implementing measures for Title VII of the CEOS’) so that she could make comments on the grounds alleged by the Member in the request for termination of the contract.

19 On 7 May 2018, the applicant was received by the AECE in connection with the preliminary interview, in the presence of two observers (an administrator from DG Personnel and a representative from the APA Committee). During that interview, the applicant asked for and was given the possibility to submit her observations on matters which had been raised during the preliminary interview.

20 On 14 May 2018, the applicant sent the AECE her observations on matters which had been raised during the preliminary interview (‘the observations of 14 May 2018’). That document was accompanied by 38 annexes. At the same time, a second document entitled ‘The abusive working environment in the MEP’s office’, comprising 19 annexes, was also sent to the AECE.

21 By decision of 18 May 2018, the AECE terminated the applicant’s contract (‘the contested decision’). After referring to, amongst other things, the first and second requests for termination (together, ‘the requests for termination’), the preliminary interview, and an analysis of the respective positions of both parties, that decision stated: ‘As trust is the basis of the relationship between the Member and his [APA], [the AECE has] decided to terminate [the applicant’s] contract in conformity with Article 139(1)(d) of the CEOS, on the grounds that this trust is broken due to behaviour not in keeping with the dignity of the post.’ The Member’s second request for termination was annexed to that decision.

22 On 30 July 2018, pursuant to Article 90(2) of the Staff Regulations, applicable by analogy to APAs by virtue of the reference to Title VII of the Staff Regulations in Article 138 of the CEOS, the applicant lodged a complaint against the decision refusing assistance.

23 By letter of 16 August 2018 to the AECE, the applicant submitted a complaint under Article 90(2) of the Staff Regulations against the contested decision (‘the complaint’). In the complaint, she explained, inter alia, that the Member had wished to recruit his personal advisor, C, at grade 19, but that that was not possible because of the age of the person concerned. Accordingly, that was why, on 23 July 2014, the Member had asked the AECE to employ the applicant at that grade, barely three weeks after recruiting her at grade 6 of function group I. According to the applicant, this had allowed the Member to extort a monthly amount from her which corresponded in essence to the difference in salary between that grade 19 and the applicant’s previous grade. In support of that complaint, she raised, in the first place, breach of the duty to state reasons, as set out in Article 41(2)(c) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and in Article 25 of the Staff Regulations, and, in the second place, infringement of Articles 12a and 24 of the Staff Regulations, manifest errors of assessment, breach of the duty of care, and breach of the duty to cooperate with the national authorities and OLAF. As to breach of the duty to state reasons, she maintained, amongst other things, that the fact that she had not been provided with the Member’s first request for termination had made it impossible for her to understand the reasons grounding the contested decision, and that, in any event, the inadequate reasoning of the contested decision made it impossible for her to understand why her arguments had not been sufficient to rebut those of the Member.

24 On 28 November 2018, the Secretary-General of the Parliament annulled the decision refusing assistance on the ground that the applicant had not had the opportunity to make her views known before that decision was adopted.

25 On 24 December 2018, the applicant asked for a copy of the report of the APA Special Advisory Committee.

26 By decision of 4 January 2019, the Secretary-General of the Parliament rejected the complaint against the contested decision (‘the decision rejecting the complaint’). He noted, in particular, that the conduct not in keeping with the dignity of the post to which the contested decision referred was the role played by the applicant in the scheme involving her reclassification to grade 19 and the subsequent payments made by the applicant to C. In that regard, he stressed that she had not contested the ‘email exchanges’ between herself and C and that, on the contrary, she had confirmed that she had transferred a substantial part of her salary on a regular basis to C. In his view, the scheme involving her salary was inappropriate and damaging to the reputation of APAs, Members of Parliament, and the Parliament. The Secretary-General of the Parliament also took the view that no serious doubts could be raised as to the existence of an arrangement by which the applicant transferred part of her salary to C, and that there was no evidence that the Member had pressurised her into taking part in that scheme. In the absence of any evidence that the Member had had a part in the scheme, and in view of the applicant’s own admissions, the contested decision was not, according to the Secretary-General, flawed by any manifest error of assessment.

27 The Member’s first request for termination was also annexed to that decision. In that regard, the Secretary-General of the Parliament stated that that document had not been sent to the applicant simply because it gave two reasons for the loss of trust, whereas the second request for termination had added a third and fourth reason to the ones that already existed. Accordingly, the applicant, having received the second request for termination, had been made fully aware of all the reasons invoked by the Member.

28 On 19 November 2020, OLAF notified the applicant of the closure of its investigation into suspected misappropriation of EU funds by the Member (‘the OLAF letter of notification’). The applicant was thereby informed that OLAF had recommended that the Parliament initiate disciplinary proceedings against her as, in its view, the applicant’s actions, seen in her agreement to pay part of her salary to the Member and by the failure to report that conduct to the administration, constituted a breach of Articles 11, 12, 21a and 22a of the Staff Regulations.

29 By application lodged at the Court Registry on 15 April 2019, the applicant brought the present action.

30 By document lodged at the Court Registry on 2 May 2019, the applicant made a request for anonymity, which was granted to her pursuant to Article 66 of the Rules of Procedure of the General Court.

32 The applicant lodged the reply on 5 November 2019. The Parliament lodged the rejoinder on 9 January 2020.

33 On 30 July 2020, in connection with the measures of organisation of procedure laid down in Article 89(3) of the Rules of Procedure, the Court asked the parties to reply to a number of questions and to produce certain documents. The parties replied to those questions and produced the requested documents within the prescribed period.

34 The parties presented oral argument and replied to the questions put to them by the Court at the hearing on 13 October 2020.

35 By document lodged at the Court Registry on 4 December 2020, the applicant, pursuant to Article 113(2) of the Rules of Procedure, requested that the oral part of the procedure be reopened, arguing that the OLAF letter of notification referred to in paragraph 28 above was a decisive factor for the outcome of the proceedings.

36 By order of 16 December 2020, the General Court (Eighth Chamber) ordered that the oral procedure be reopened. On 17 December 2020, the OLAF letter of notification was placed on the file. Asked to submit observations on that document, the Parliament complied with that request within the prescribed period.

– order the Parliament to pay compensation in respect of the non-material harm that she has suffered through the fault of the Parliament, assessed at EUR 50 000;

39 At the outset, it should be borne in mind that, according to settled case-law, a claim for annulment formally directed against the decision rejecting a complaint has the effect of bringing before the Court the act against which the complaint was submitted, in the case where that claim, as such, lacks any independent content (see judgment of 7 November 2019, WN v Parliament, T‑431/18, not published, EU:T:2019:781, paragraph 21 and the case-law cited).

40 In the present case, given that the decision rejecting the complaint merely confirms the contested decision, while specifying certain grounds in support of it, it must be held that the claim for annulment of the decision rejecting the complaint lacks any independent content and that there is therefore no need to rule on that claim specifically, even if, when examining the legality of the contested decision, the statement of reasons for the decision rejecting the complaint should be taken into consideration, as it is deemed to cover the statement of reasons in the contested decision (see, to that effect, judgment of 7 November 2019, WN v Parliament, T‑431/18, not published, EU:T:2019:781, paragraph 22 and the case-law cited).

41 The applicant puts forward two pleas in law in support of her claim for annulment: first, breach of the duty to state reasons and of procedure; and secondly, infringement of Articles 12a and 24 of the Staff Regulations, infringement of the right to have one’s affairs handled impartially and fairly, infringement of the duty to act diligently, and manifest errors of assessment.

42 The first plea consists, in essence, of two complaints: the first, a breach of the duty to state reasons, and the second, an infringement of the right to be heard.

43 The applicant relies, in essence, on four arguments in support of this complaint. First, she argues that the Parliament breached its duty to state reasons by referring in the contested decision to the first request to terminate her contract, without, however, communicating that request to her. Secondly, she states that the reasons justifying the termination of her contract, set out in the first request for termination, should have remained identical throughout the entire administrative procedure and that such a change is contrary to the duty to state reasons. Thirdly, she adds that the two requests for termination were lapidary and did not explain to what extent trust between her and the Member had been irremediably shattered. Fourthly, she argues that the AECE did not take into account her arguments set out in her observations of 14 May 2018. By failing to explain the reasons why her arguments were not such as to invalidate the Member’s ‘request of [termination]’, the Parliament was in breach of its duty to state reasons.

44 In that regard, it should be borne in mind that the right to sound administration, in accordance with Article 41(2) of the Charter, includes the obligation of the administration to give reasons for its decisions. That obligation has the same scope as that arising from the second paragraph of Article 296 TFEU and that provided for in the second paragraph of Article 25 of the Staff Regulations, applicable by analogy to APAs pursuant to Article 127 of the CEOS. The statement of reasons required by those provisions must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review (see judgment of 7 November 2019, WN v Parliament, T‑431/18, not published, EU:T:2019:781, paragraphs 28 and 29 and the case-law cited).

45 The requirements to be satisfied by the statement of reasons must be determined according to the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question of whether the statement of reasons for a measure is to be deemed adequate must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 7 November 2019, WN v Parliament, T‑431/18, not published, EU:T:2019:781, paragraph 29 and the case-law cited).

46 As regards the legal rules governing the termination of the contract of APAs before the expiry date on the grounds of breakdown of trust, it should be recalled that, under Article 139(1) of the CEOS:

‘Apart from cessation on death, the employment of the accredited parliamentary assistant shall cease:

(d) taking into account the fact that trust is the basis of the working relationship between the Member and his accredited parliamentary assistant, at the end of the period of notice specified in the contract, which shall give the accredited parliamentary assistant or the European Parliament, acting at the request of the Member or Members of the European Parliament whom the accredited parliamentary assistant was taken on to assist, the right to terminate the contract before its expiry. …’

47 As has already been held, while it is true that the simple finding that there has been a breakdown in the relationship of trust may be enough to justify the adoption of a decision to dismiss an APA and that, where a dismissal decision is based only on such a finding, the requirement that the grounds for the decision must describe in detail the factual circumstances demonstrating or justifying the breakdown in the relationship of trust cannot be too far-reaching, the fact remains that a simple reference to the breakdown in the relationship of trust, without any details of the factual circumstances demonstrating or justifying that breakdown, is not enough to indicate to the APA whether the decision is well founded and to enable the EU Courts to exercise their review of legality (see judgment of 7 November 2019, WN v Parliament, T‑431/18, not published, EU:T:2019:781, paragraph 31 and the case-law cited).

48 In the present case, the contested decision states that the termination of the applicant’s contract as an APA was based on the breakdown in the relationship of trust between the applicant and the Member on account of conduct not in keeping with the dignity of the post. Such a statement of reasons, even though brief, is sufficiently explicit in a context which was particularly well known to those involved and in view of the discussions which had taken place during the preliminary meeting, which were supplemented by observations by the applicant which demonstrate an understanding of the features of her conduct that were the subject of complaint.

49 That statement of reasons was in addition supplemented by the decision rejecting the complaint (paragraphs 26 and 40 above). In that decision, in response to the arguments raised by the applicant in the complaint, alleging, inter alia, breach of the duty to state reasons, the AECE provided clarification as to the reason for the dismissal. The AECE thus set out the factual circumstances capable of demonstrating or justifying the breakdown in the relationship of trust by reason of the conduct on the applicant’s part which was not in keeping with the dignity of the post. The Member’s first request for termination was annexed to that decision.

50 In the light of the foregoing, it must be held that the statement of reasons provided in the contested decision, as supplemented by the decision rejecting the complaint, discloses in a clear and unequivocal fashion the reasons for the dismissal and the reasoning followed by the AECE, and that those two decisions were adopted in a context with which the applicant was familiar. She was therefore placed in a position to understand their scope as were the EU Courts to exercise their power to review the legality of those decisions.

51 None of the applicant’s arguments is capable of calling that conclusion into question.

52 In the first place, the applicant submits that the contested decision’s reference to the first request for termination, without any notification of that request, constitutes a breach of the duty to state reasons.

53 In that regard, as explained in paragraphs 76 and 77 below, although it is not disputed that the applicant became aware of that document only by means of the decision rejecting the complaint, the fact remains that the AECE did not rely in that decision on any new information, taken from that document, since, by becoming aware of the second request for termination, annexed to the invitation to the preliminary interview, the applicant was informed of all the reasons invoked by the Member for requesting the termination of her employment contract.

54 In the second place, the applicant wrongly argues, in seeking to demonstrate a breach by the AECE of its duty to state reasons, that the reasons put forward by the Member to justify the termination of her contract should not have evolved during the administrative procedure and that the tardy communication of the first request for termination prevented her from understanding the reasons for that evolution.

55 The fact that the contested decision grounds the breakdown in the relationship of trust on conduct not in keeping with the dignity of the post is not a new allegation of which the applicant was not aware. That decision was taken in a context of which the applicant had sufficient knowledge and she was placed in a position to understand the scope of the planned measure with regard to her and the reason for and the factual circumstances on the basis of which the adoption of such a measure was envisaged, as is apparent from paragraph 48 above. Moreover, the statement of reasons provided in the decision rejecting the complaint is the same as that set out in the contested decision.

56 In that regard, it must be borne in mind that, while it is for the Member concerned to submit a request for termination of an APA’s contract on the ground of a breakdown in the relationship of trust, the AECE alone is competent, in accordance with Article 20(5) of the implementing measures for Title VII of the CEOS, to decide on such termination and to determine the grounds for that decision (judgment of 7 November 2019, WN v Parliament, T‑431/18, not published, EU:T:2019:781, paragraph 36). The applicant thus conflates the ground and the reason given by the AECE to justify the termination of her employment contract with the reasons for the breakdown in the relationship of trust put forward by the Member in support of his two requests for termination. Only the first-mentioned of those factors form the basis of the act adversely affecting the applicant.

57 In any event, as has already been stated in paragraph 53 above, by becoming aware of the second request for termination, annexed to the invitation to the preliminary interview, the applicant was informed of all the reasons invoked by the Member to request the termination of her employment contract.

58 In the third place, whereas the applicant claims that the requests for termination were lapidary, it must be noted that those requests provided a total of four reasons liable to justify the breakdown in the relationship of trust and that they were all brought to the applicant’s attention by means of the letter of invitation to the preliminary interview and explained to the applicant during the preliminary interview (see, to that effect, judgment of 7 November 2019, WN v Parliament, T‑431/18, not published, EU:T:2019:781, paragraph 48).

59 Furthermore, while it is true, as the applicant suggests, in extension to that idea, that the contested decision does not specify the factual circumstances justifying the breakdown in the relationship of trust, the AECE may also, where appropriate, supplement that statement of reasons at the stage of responding to the complaint lodged by the person concerned (judgment of 22 March 2018, HJ v EMA, T‑579/16, not published, EU:T:2018:168, paragraph 62).

60 Lastly, in so far as the applicant takes issue with the statement of reasons for the decision rejecting the complaint, it must be borne in mind that the obligation to state reasons is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect. It follows that objections and arguments intended to establish that a measure is not well founded are irrelevant in the context of a ground of appeal alleging an inadequate statement of reasons or a lack of such a statement (see judgment of 6 February 2019, TN v ENISA, T‑461/17, not published, EU:T:2019:63, paragraph 40 and the case-law cited).

61 Accordingly, given that the applicant argues, as part of the first plea, that certain assessments are not well founded and that there is an absence of a clear link between those assessments and the breakdown in the relationship of trust, her arguments overlap with those relied on in support of the third limb of the second plea. Those arguments will thus be examined in connection with the analysis of that plea.

62 In the fourth place, the applicant argues that no account was taken of her observations of 14 May 2018, expressly referring, in that instance, to the Parliament’s duty to state reasons. By that argument, the applicant therefore seeks to argue, in essence, that the statement of reasons for the contested decision was insufficient.

63 In that context, suffice it to note that, as was stated in paragraphs 48 to 50 above, first, the statement of reasons for the contested decision, as supplemented by the decision rejecting the complaint, appears to be sufficient and, secondly, the AECE was under no obligation to respond to all of the arguments raised by the applicant.

64 A statement of reasons does not need to be exhaustive, but, on the contrary, must be considered sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision (see judgment of 13 December 2017, CJ v ECDC, T‑692/16, not published, EU:T:2017:894, paragraph 116 and the case-law cited). The administration is not therefore required to take a position on all of the arguments relied on before it (see judgment of 8 July 2020, EP v Commission, T‑605/19, not published, EU:T:2020:326, paragraph 31 and the case-law cited).

65 Moreover, the fact that the AECE terminated the applicant’s contract in no way demonstrates, on its own, that it failed to take into account the facts relied upon and the evidence adduced by the applicant. The fact that the applicant’s comments are taken into consideration does not mean that the AECE must necessarily endorse them (see, to that effect, judgment of 11 July 2019, BP v FRA, T‑888/16, not published, EU:T:2019:493, paragraph 163).

66 Consequently, the complaint alleging breach of the duty to state reasons must be rejected.

67 The applicant submits, in essence, that the Parliament infringed her rights of defence and, in particular, her right to be heard owing to the fact that it was not possible for her to express her views, first, on the first request for termination; secondly, on the analysis by the Member to which the contested decision refers; thirdly, on the written record of the preliminary interview and, fourthly, on the 2014 emails, adduced by the Member in support of his second request for termination.

68 The Parliament disputes the admissibility of this claim on the ground that it did not appear in the complaint, which is contrary to the rule of correspondence. In any event, that claim is, it submits, unfounded.

69 In that regard, the Parliament contends, the applicant had not alleged in her complaint that the AECE had infringed her right to be heard as laid down by Article 41(2)(a) of the Charter. In those circumstances, the submission of the second complaint of the first plea only at the litigation stage infringes the rule of correspondence, justifying its rejection as inadmissible (see, to that effect, judgment of 25 June 2020, XH v Commission, T‑511/18, EU:T:2020:291, paragraph 57 and the case-law cited). In any event, the Court observes that this complaint is anyway unfounded for the following reasons.

70 A decision to dismiss an APA for a breakdown in the relationship of trust may not thus be adopted without prior respect for his or her right to be heard (judgment of 7 November 2019, WN v Parliament, T‑431/18, not published, EU:T:2019:781, paragraph 41; see also, to that effect, judgment of 10 January 2019, RY v Commission, T‑160/17, EU:T:2019:1, paragraph 40), it being understood that, where a decision by the AECE is based on several grounds and the person concerned has not been heard on all of those grounds, an infringement of the right to be heard on some of the grounds cannot lead to the annulment of the decision at issue where that decision is based on a valid ground on which the person concerned was duly heard (see, to that effect, judgment of 19 July 2017, Parliament v Meyrl, T‑699/16 P, not published, EU:T:2017:524, paragraph 16).

71 As regards the legal rules governing the termination of the contract of APAs before the expiry date on the ground of breakdown in the relationship of trust, it should be reiterated that, under Article 20 of the implementing measures for Title VII of the CEOS:

‘1. [APAs’] contracts shall be terminated in accordance with Article 139(1) to (3) of the CEOS …

2. In particular, where an [APA] or the Member or grouping of Members he/she assists wishes to terminate a contract prior to its expiry, in accordance with Article 139(1)(d) … of the CEOS, the [APA] or the Member responsible shall forward a written request to this effect to the AECE, setting out the reason(s) for which early termination of the contract is being requested.

3. When it receives the request for termination, the AECE shall inform the [APA] or the Member responsible of the other party’s intention to end the contract. …

4. If the request for termination is made by the Member responsible, the AECE shall invite the [APA] to an interview on Parliament’s premises …

At the interview, the AECE shall inform the [APA] of the reasons given by the Member responsible in the request for termination and hear any comments the [APA] wishes to make; those comments shall be entered in a record …’

72 In the present case, the adoption of the contested decision was preceded by a preliminary interview. In the first place, the letter of invitation to the preliminary interview informed the applicant that the Member had made a request for early termination of her contract owing to a breakdown in the relationship of trust, and the second request for termination, which stated that the termination of the contract was being sought on account of a loss of trust due to conduct likely to harm the image of the Member, conduct not in keeping with the dignity of the post, a lack of professionalism and attention to work, and a lack of discretion, was annexed to that letter.

73 In that regard, contrary to what the applicant claims, the fact that she did not have, at that stage of the procedure, the first request for termination is ineffective. Apart from the fact that the AECE did not immediately accede to that first request of the Member, it appears that the two reasons referred to in that request were identical to two of the four reasons put forward in support of the second request for termination of the contract. Accordingly, pursuant to the case-law referred to in paragraph 70 above and notwithstanding the reference in the contested decision to the two requests for termination, suffice it to note that one alone of the reasons raised by the Member was enough to justify the breakdown in the relationship of trust and that, in the present case, the applicant had the opportunity to present her observations in respect of the reason given by the AECE in the contested decision.

74 In the second place, and more generally, during that interview, the applicant did indeed have the opportunity to submit her observations on the four reasons put forward by the Member in order to terminate her contract and in respect of which he had ticked the corresponding boxes in the second request for termination. It is also apparent from the documents in the file, in particular from the content of the observations of 14 May 2018 made by the applicant, that the reasons and factual circumstances on which the Member relied in order to establish the existence of conduct on the part of the applicant which was not in keeping with the dignity of her post were explained to her in the course of that interview and that the applicant also responded to the criticisms thus made known to her, not only during that interview, but also, subsequently, by submitting additional written observations.

75 In that connection, first, the applicant argues that she did not have any possibility to express her views on the first request for termination before the adoption of the contested decision. That, she submits, is all the more important in the present case since the reasons put forward by the Member as justification for terminating her contract of employment evolved over time.

76 In that regard, it is not disputed that the applicant became aware of the existence of the Member’s first request for termination by means of the contested decision and was apprised of its content by means of the decision rejecting the complaint.

77 However, even though the contested decision refers to that document, the fact remains that the applicant was given sufficient opportunity, under the conditions referred to in paragraph 72 above, to submit her observations on the proposed measure and on the reasons and factual circumstances on which the adoption of that measure was based. In particular, in that decision, the AECE did not rely on any new information, based on that document, on which the applicant was not heard, since, by becoming aware of the second request for termination, annexed to the invitation to the preliminary interview, the applicant was informed of all the reasons relied on by the Member to request the termination of her employment contract. While the AECE annexed the first request for termination to the decision rejecting the complaint, that was solely in order to respond to the argument developed by the applicant in her complaint, according to which the reference to that request in the contested decision constitutes an infringement of the duty to state reasons (see, to that effect, judgment of 7 November 2019, WN v Parliament, T‑431/18, not published, EU:T:2019:781, paragraph 51), and to dispel the doubts which the applicant might have had as to its content.

78 It follows that the applicant’s right to be heard was not infringed in that regard.

79 Secondly, the applicant also argues, in essence, that she had no opportunity to make her views known to the AECE on the analysis by the Member, to which the contested decision refers.

80 In response to a measure of organisation of procedure of 30 July 2020, the Parliament explained that, in this context, the Member’s analysis referred to the four reasons relied on by the Member in support of his request that the applicant be dismissed and that that analysis had been presented to the applicant by the AECE during the preliminary interview, as reflected in the record of that meeting.

81 It is apparent from that record that the Member’s analysis was provided to the applicant during that interview. Furthermore, the applicant was able to comment on that analysis, both during that interview and in her observations of 14 May 2018, under the conditions set out in paragraph 72 above.

82 It follows that the applicant’s right to be heard on the Member’s analysis before the contested decision was taken was not infringed.

83 Thirdly, the applicant argues, in essence, that she had no opportunity to submit observations on the record of the preliminary interview, which does not faithfully reflect the comments she made on that occasion and which omitted very important points also discussed during that meeting.

84 In particular, she claims, she had never confirmed that she had been involved in the scheme which allowed her to be reclassified to grade 19 and to share her salary with C. On the contrary, she also expressly stated as follows on several occasions:

‘Since August 2014, the MEP withheld a significant part of my salary, which was stipulated to me as a condition to keep my job. The total amount [equalled] around 122,000 Euro.’

85 It must be noted that, although the contested decision does not formally refer to the record of the meeting, it nevertheless refers expressly to the preliminary interview. In addition, the decision rejecting the complaint, inter alia, accepts as circumstances justifying the breakdown in the relationship of trust the role played by the applicant in the scheme which resulted in her reclassification to grade 19 and in the payments made to C. That decision also expressly refers to the applicant confirming that she transferred a substantial part of her salary to that person.

86 In that regard, it is common ground that the record of the preliminary interview was not communicated to the applicant in the course of the administrative procedure which preceded the adoption of the contested decision. She therefore did not have the possibility to satisfy herself that the transcription of her comments in that document was correct.

87 However, it should be noted that, according to settled case-law, an infringement of the rights of the defence, in particular of the right to be heard, results in the annulment of the decision taken at the end of the administrative procedure at issue only if, had it not been for such an irregularity, the outcome of the procedure might have been different (see judgment of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 105 and the case-law cited).

88 In that regard, the Court of Justice has explained that an applicant who claims that his or her rights of defence have been infringed cannot be required to show that the decision of the EU institution concerned would have been different in content, but simply that such a possibility cannot be totally ruled out (see judgment of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 106 and the case-law cited).

89 The assessment of that question must, moreover, be made in the light of the factual and legal circumstances of each case (see judgment of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 107 and the case-law cited).

90 Accordingly, the applicant, on whom that burden of proof rests (see, to that effect, judgment of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 112), cannot merely plead, in abstract fashion, an infringement of the right to be heard in support of her application for annulment of the contested decision. It is for her to show that it cannot be totally ruled out that the decision of the EU institution concerned would have been different if she had been able to put forward her arguments.

91 In that regard, it is apparent from the observations of 14 May 2018, made after the preliminary interview and before the adoption of the contested decision, that the applicant expressed her views both on the factual circumstances surrounding her reclassification to grade 19 and on the payments made from her salary.

92 As regards the payments made from her salary, she stated, inter alia, that ‘the [Member] withheld a significant part of [her] salary’ and that ‘[C] [had] asked [her] why [the Member] kept complaining about money and checked to see if [she] was still obliged to give him part of [her] salary’. In particular, she used word for word the sentence which she wished to have included in the record of the preliminary interview, namely that ‘since 2014, the MEP withheld a significant part of [her] salary, which [had been] stipulated to [her] as a condition to keep [her] job’ and that ‘the total amount [equalled] around 122,000 Euro’. Therefore, it is without doubt apparent from those various extracts that the applicant is defending her stance that she gave part of her salary to the Member and not to C.

93 As regards her reclassification to grade 19, she set out in methodical and detailed fashion, over almost one page, the factual circumstances which led to that situation, stating, inter alia, that ‘the [Member had] upgraded [her] contract and duties, but he [had] started withholding a significant part of [her] salary’ and again that ‘the Member [had] upgraded [her] contract from Grade 6 … to Grade 19’, leaving out any mention of any active participation on her part.

94 In those circumstances, notwithstanding the record’s alleged omission, the applicant was able to submit her observations in ample fashion and to inform the AECE of her version of the facts, including after the preliminary interview. Despite those comments, however, the AECE decided to terminate the applicant’s employment contract by means of the contested decision.

95 Moreover, that same information was, in essence, repeated by the applicant in her complaint and the AECE nevertheless maintained its initial decision.

96 Consequently, the applicant does not show that, if she had been aware of the content of the record of the preliminary interview, she could have provided information other than that already brought to the attention of the Parliament and which might have led the AECE to make a different assessment of the circumstances of the case to the extent of justifying not terminating her contract.

97 Fourthly, the applicant argues that the Parliament never asked her for any explanations about the 2014 emails, even though those documents were taken into consideration in the contested decision, something which constitutes an infringement of her right to be heard.

98 In that regard, it is apparent from the file that the applicant did not at any point during the administrative procedure formally receive the evidence adduced by the Member and used by the Parliament to terminate her contract of employment, that is to say, the 2014 emails, which were placed in the Court’s case file as Annex B.1 to the defence.

99 However, although those emails were not themselves communicated to the applicant, they were nevertheless discussed during the preliminary interview and, as the author or addressee of those emails, the applicant was necessarily aware of their existence and content when that correspondence was mentioned.

100 In that regard, it is apparent from an uncontested passage in the record of the preliminary interview that the reasons given by the Member to justify the breakdown in the relationship of trust were explained to the applicant during that interview and that, ‘in order to prove these allegations, the MEP presented an exchange of e-mails between [the applicant] and [C] of August and September 2014’, which correspond to the 2014 emails, as the Parliament confirmed in response to a measure of organisation of procedure. Furthermore, in her observations of 14 May 2018, the applicant stated as follows: ‘As I mentioned during our meeting, these were communications between myself and [C].’ Consequently, the applicant’s observations support the wording of the record of the meeting by confirming that, on that occasion, the 2014 emails were indeed discussed.

101 In addition, the applicant acknowledges that she communicated the 2014 emails as annexes to her observations of 14 May 2018, apart from pages 5 and 7 of Annex B.1. Consequently, the applicant was able effectively to communicate her point of view, before the contested decision was taken, on all the pages of that document, apart from pages 5 and 7.

102 However, the applicant does not show that, if she had been able to comment on pages 5 and 7 of Annex B.1, then it would not be ruled out that the Parliament’s assessment and the content of the contested decision may have been different.

103 In that regard, it is apparent from page 7 of Annex B.1 that the applicant transferred money to C. The applicant produced the remainder of that conversation to the Court, in order to prove that the transfer at issue was made from the account of D, another of the Member’s APAs. However, it is apparent from the full exchange of emails that the money, even if it came from D’s salary, was indeed transferred by the applicant (see paragraph 167 below). The whole of the correspondence, produced as Annex C.2 to the reply, does not therefore call into question the assertion in the decision rejecting the complaint that the money transferred by the applicant was intended for C. On the contrary, it supports the idea that the beneficiary of the scheme was C, as the Parliament states. Annexes C.3 and C.4 to the reply, submitted to supplement Annex C.2, also point in that direction.

104 As regards page 5 of Annex B.1, the applicant’s interpretation of the messages that were sent, in connection with the third limb of the second plea, also appears unconvincing. Those messages read as follows:

‘[C:] Can you tell me the amount entered as gross expenditure on salaries for you and [D] so that I can calculate the balance?

[The applicant:] … ours is EUR 9 466.82 I am also waiting for [D] to tell me her grade.’

105 In her written pleadings before the Court, the applicant explains that, although she had referred to the gross amount of her salary by using the word ‘ours’, that was because the Member had begun the extortion. However, the interpretation suggested by the applicant is only one possible interpretation of the passage quoted and does not rule out the possibility that, by using that possessive pronoun, the applicant intended to refer solely to her salary, rather than to the fact that she was sharing her salary with the Member.

106 It follows from all of the foregoing considerations that the complaint alleging infringement of the right to be heard, guaranteed by Article 41(2)(a) of the Charter, must be rejected. The first plea must, therefore, be rejected.

(b) The second plea: infringement of Articles 12a and 24 of the Staff Regulations, infringement of the right to have one’s affairs handled impartially and fairly, breach of the duty to act diligently, and manifest errors of assessment

107 The second plea is structurally divided into three limbs. The first limb alleges infringement of Articles 12a and 24 of the Staff Regulations, on the basis that the dismissal was an act of retaliation following the request for assistance. The second limb alleges infringement of the applicant’s right to have her affairs dealt with impartially and fairly and a breach of the duty to act diligently in connection with the decision rejecting the request for assistance. The third limb alleges infringement of Articles 12a and 24 of the Staff Regulations, on the basis that the contested decisions are vitiated by manifest errors of assessment.

(1) The first limb: infringement of Articles 12a and 24 of the Staff Regulations on the basis that the dismissal constitutes an act of retaliation following the request for assistance

108 The applicant submits that the contested decision constitutes an act of retaliation in response to her request for assistance. In adopting that decision, she argues, the Parliament infringed Article 12a(2) and Article 24 of the Staff Regulations.

109 In her view, a pattern of behaviour can be observed on the part of ‘the Defendant’, who systematically uses retaliation in order to punish and discredit the applicant. Accordingly, the Member made his first request for termination after the request for assistance had been lodged, after the applicant had given witness testimony to the national prosecutor, and after she stopped paying part of her salary to him (first event). As for the criminal complaint lodged by the Member, the applicant states that this was an attempt to punish her for her harassment complaint and her testimony to OLAF (second event). The Parliament therefore did not take account of the whole context into which those two events fall, to which, in the reply, the applicant adds a third event, namely the second request for termination.

110 The Parliament contends that the first limb of the second plea should be rejected as unfounded.

111 Under Article 12a(2) of the Staff Regulations, an official who has given evidence on psychological or sexual harassment is not to suffer any prejudicial effects on the part of the institution, provided that the official has acted honestly.

112 In that context, the applicant submits, in essence, that the contested decision taken by the AECE, on the basis that it ‘relies’ on the decision refusing assistance, constitutes an act of retaliation on the part of the Member.

113 First of all, it must be held that the applicant’s argument starts from the erroneous premiss that the AECE merely ‘endorsed’ the requests for termination and the reasons put forward by the Member to justify the breakdown in the relationship of trust. However, as is apparent from the analysis of the third complaint of the second plea, alleging manifest errors of assessment, the contested decision, as supplemented by the decision rejecting the complaint, relies on concrete facts which were analysed by the Parliament, as is apparent from paragraph 159 et seq. below.

114 In addition, in order to demonstrate the systematic nature of the retaliation, the applicant highlights, in essence, three acts carried out by the Member, namely the submission of the first request for termination, the lodging of the criminal complaint, and the submission of the second request for termination, in the context of the payments made from her salary and the pressure that was exerted on her in order to influence her various statements in testimony. It is necessary to examine the possible links between those different acts and the dismissal.

115 In that regard, in the first place, as regards the first request for termination, it must be borne in mind that that request was received by the AECE on 30 June 2017.

116 It is apparent from the chronology of events that that request cannot reasonably be attributed to a sudden reaction on the part of the Member, following the cessation of payments allegedly made to him from the applicant’s salary until February 2017. In fact, almost five months elapsed between the appearance of the articles in the national press which brought those payments to an end and the submission of that request. The same is true of the applicant’s testimony to the national prosecutor, made on 11 May 2017, since more than seven weeks separate those two events. As for the testimony before OLAF, given on 17 October 2017 and 6 April 2018, this was after the submission of the first request for termination and cannot therefore have motivated that request.

117 The harassment complaint, for its part, was lodged with the APA Special Advisory Committee on 13 July 2017. Consequently, even going along with the applicant’s reasoning, the alleged ‘retaliation’, namely the submission of the first request for termination on 30 June 2017, would predate the behaviour which it was allegedly intended to ‘punish’, namely the submission of the request for assistance in respect of psychological harassment.

118 It is true that on 31 July 2017 the applicant alerted that committee to the fact that her harassment complaint had been brought to the attention of the Member. It is apparent from the applicant’s email that that information was shared by ‘a colleague’, with no further details provided, and that the Member had been aware of that information ‘since early July already’. It is true that, on 9 June 2017, the applicant had informed the APA Special Advisory Committee of her intention to submit a complaint of psychological harassment to it against the Member. Although he could theoretically have known of her intention, before the complaint was formally lodged, the applicant does not adduce any evidence to establish that the Member did have actual knowledge of that information between 9 June 2017 (the date of the email sent to the APA Special Advisory Committee relating to her intention) and 30 June 2017 (the date on which the first request for termination was lodged). Furthermore, it is apparent from the Member’s criminal complaint that it was not until 19 September 2017 that, by means of information from the APA Special Advisory Committee, the Member, according to his own statements, became aware of the existence of the harassment complaint.

119 As regards the request for assistance, submitted to the AECE on 27 June 2017, it must be held that the applicant does not provide any evidence to establish that the Member had any knowledge of it between 27 June 2017 (the date on which the request for assistance was made) and 30 June 2017 (the date on which the first request for termination was submitted).

120 The applicant has therefore failed to establish a connection between the alleged context of harassment and the first request for termination.

121 In the second place, as regards the Member’s criminal complaint, it should be noted that it was lodged on 18 December 2017, on the grounds of false accusations, slanderous defamation and instigation of those acts, and that it is directed against ‘all persons culpable of acts of dissemination and reliance on false events before the [APA] Advisory Committee … which were partly based on the content of emails that have been allegedly exchanged between [the applicant] and [C]’.

122 It is true that, as the applicant states, the presumed date of the offence referred to in that document is 13 July 2017, and is therefore the same as that on which the harassment complaint was lodged.

123 It is also true that, in his criminal complaint, the Member refers to the complaint of psychological harassment lodged by the applicant with the APA Special Advisory Committee, which establishes a correlation between those two events, but not a correlation between the criminal complaint and the request for dismissal. Moreover, that complaint relates to defamation and it cannot be ruled out, as the Parliament argues, that the Member sought to defend his image and his rights in the form of a criminal complaint.

124 In the third place, the applicant does not make clear the reasons why the second request for termination, submitted on 7 November 2017, constitutes a form of retaliation on the part of the Member, or the links which that request has with the context of harassment of which her allegations form part, namely the cessation of payments made from her salary (February 2017) and her different statements to the national prosecutor (11 May 2017) and to OLAF (17 October 2017 and 6 April 2018).

125 It follows from the foregoing that the matters raised by the applicant do not provide evidence of acts or conduct which are retaliatory in nature.

126 Consequently, the complaint alleging infringement of Articles 12a and 24 of the Staff Regulations on the basis that the dismissal was a retaliatory measure following the request for assistance cannot succeed and the first limb of the second plea must be rejected.

(2) The second limb: infringement of the right to have one’s affairs handled impartially and fairly, and breach of the duty to act diligently, in connection with the decision rejecting the request for assistance

127 The applicant maintains, essentially, that the decision rejecting the complaint ‘relies’ on the decision refusing assistance, and that the latter decision was taken, in the first place, in infringement of her right to have her affairs dealt with impartially and fairly and, in the second place, in breach of the duty to act diligently. The decision rejecting the complaint cannot therefore refer to the applicant’s role in the scheme concerning her salary.

128 In the first place, the applicant argues that her request for assistance, on which, according to her, the decision rejecting the complaint relies, was handled ‘impartially’ and unfairly. First of all, the Member had immediately been informed of the harassment complaint made against him. Furthermore, the names of the applicant’s witnesses were disclosed to him. Lastly, the chair of the APA Special Advisory Committee stated that one of the applicant’s three witnesses had not appeared on the day set for his hearing.

129 In the second place, the applicant submits that the APA Special Advisory Committee breached its duty to act diligently with regard to the handling of her harassment complaint. First of all, the third witness who should have been heard had not even been contacted by the APA Special Advisory Committee to provide a written statement. Next, that committee failed to initiate basic measures of investigation in order to elucidate the case. By unreservedly endorsing the committee’s conclusion, the AECE also endorsed that infringement of the applicant’s rights. Lastly, there is no evidence at all of the committee having taken the slightest concrete and useful investigative measures.

130 In any event, according to the applicant, the Parliament was obliged to provide the APA Special Advisory Committee with the necessary means to investigate the case properly. Alternatively, if those means were provided to the committee, it was for that committee actually to make use of those means in order to establish the truth.

131 In the third place, the applicant argues in the reply that, while the dismissal procedure and the procedure relating to the request for assistance are separate, they are necessarily interrelated, since the plausibility of the reasons put forward by the Member was assessed not only in the light of the evidence collected during the procedure triggered by the request for termination, but also in the light of the evidence collected and the assessments made in the procedure relating to the request for assistance.

132 The Parliament contends that the second limb of the second plea should be rejected as unfounded.

133 By her line of argument, the applicant seeks, in essence, to obtain the annulment of the contested decision by alleging the presence of unlawful acts in the handling of her complaint of psychological harassment. In her view, the decision rejecting the complaint is closely linked to the subject matter of the request for assistance because of its reference to the findings of the APA Special Advisory Committee.

134 That claim is based on the idea that the outcome of the harassment procedure is associable with that of the assistance procedure, on which the contested decision ‘relies’. That claim must be rejected.

135 First, the applicant quotes in truncated form and misreads the decision rejecting the complaint when she claims that it ‘relies’ on the decision refusing assistance. Although the AECE refers on that occasion to the findings of the APA Special Advisory Committee, that is not to provide a basis for the contested decision, but in order to respond to the argument raised in the complaint that the request for termination is a form of retaliation following her harassment complaint.

136 Secondly, as the Parliament points out, the contested decision refers expressly to the requests for termination, the preliminary interview, the observations of 14 March 2018 and the analysis of the positions of the two parties. It does not at any point refer to the findings of the APA Special Advisory Committee as a basis for its assessments.

137 Thirdly, even though the harassment procedure and the dismissal procedure relate to the same events, those procedures are nevertheless distinct and independent. They differ both in their procedures and the competent authorities involved and by the facts to be established, the assessments to be carried out and the evidence submitted.

138 By way of illustration, it can accordingly be noted that, while the administration necessarily focused its attention on the Member’s actions in the context of the harassment procedure, it was the applicant’s conduct which, in the first place, was assessed in connection with the dismissal procedure. Indeed, it is the applicant’s participation in a possible scheme seeking to ensure her regrading with a view to the subsequent sharing of her salary that appears to be the determining factor in the dismissal in question, based on a breakdown in the relationship of trust.

139 The decision which the applicant seeks to have annulled and which has been brought before the Court in the present dispute relates to her dismissal. Accordingly, in the present action, the Court does not has jurisdiction either to annul or to rule on the legality of decisions taken in the context of the harassment procedure.

(3) The third limb: infringement of Articles 12a and 24 of the Staff Regulations, on the basis that the contested decisions are vitiated by manifest errors of assessment

141 The applicant argues, in essence, that the Parliament committed manifest errors of assessment in the harassment procedure, on which the contested decision ‘relies’, and in the dismissal procedure.

142 The Parliament contends that the third limb of the second plea should be rejected as being partially unfounded and partially inadmissible.

143 The Parliament argues, in essence, that the applicant’s claims seeking to establish a manifest error of assessment in the dismissal procedure are inadmissible because they did not form part of the complaint, which is contrary to the rule of correspondence.

144 In that regard, it should be reiterated, in connection with respect for the right to effective judicial protection, that, in a situation where the complainant learns of the reasons for the act adversely affecting him or her by way of the response to his or her complaint or in a situation where the reasons for that response modify or supplement substantially the reasons contained in that act, any plea put forward for the first time at the application stage which seeks to dispute the merits of the reasons set out in the response to the complaint must be deemed to be admissible since, in such situations, the person concerned has not been placed in a position to know, precisely and definitively, the reasons underlying the act adversely affecting that person (judgment of 21 May 2014, Mocová v Commission, T‑347/12 P, EU:T:2014:268, paragraph 44; see, also, judgment of 22 May 2014, BG v European Ombudsman, T‑406/12 P, EU:T:2014:273, paragraph 40 and the case-law cited).

145 That is the situation in the present case, as is apparent from paragraph 49 above, since it was only at the stage of the rejection of the complaint that the AECE set out the factual circumstances justifying the breakdown in the relationship of trust.

146 Consequently, the applicant’s claims seeking to establish a manifest error of assessment in the dismissal procedure are admissible.

147 It should be borne in mind that, while it is not for the AECE to substitute its own assessment for that of the Member of Parliament concerned as regards the reality of the breakdown in the relationship of trust, the AECE must nevertheless, first, check whether the absence or loss of a relationship of trust has indeed been invoked, must then ensure that the facts have been accurately stated (see judgment of 10 January 2019, RY v Commission, T‑160/17, EU:T:2019:1, paragraph 38 and the case-law cited) and, lastly, must ensure that the reason given is based on facts that plausibly justify that assessment (judgments of 7 March 2019, L v Parliament, T‑59/17, EU:T:2019:140, paragraph 29, and of 7 November 2019, WN v Parliament, T‑431/18, not published, EU:T:2019:781, paragraph 77).

148 Furthermore, if the Parliament, in deciding on the termination of an APA’s contract, refers, in particular, to concrete substantive facts underlying the decision of dismissal for loss of trust, the Court must check that that ground is based on facts which are substantively correct (see, to that effect, judgment of 11 September 2013, L v Parliament, T‑317/10 P, EU:T:2013:413, paragraph 70). The Court is also required to check if that ground is plausible. In doing so, the Court does not substitute its own appraisal for that of the competent authority, which considers that the loss of trust has been established, but must confine itself to checking whether the ground underlying the decision as stated by the institution is vitiated by a manifest error of assessment (see judgment of 7 November 2019, WN v Parliament, T‑431/18, not published, EU:T:2019:781, paragraph 78 and the case-law cited).

149 In that regard, an error may be said to be manifest only where it can be readily detected, in the light of the criteria to which the legislature intended the administration’s exercise of its discretion to be subject. Consequently, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of a decision taken as a result, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, the plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the disputed assessment may still be accepted as justified and consistent (see, to that effect, judgment of 22 March 2018, HJ v EMA, T‑579/16, not published, EU:T:2018:168, paragraph 95 and the case-law cited).

150 It is in the light of the foregoing considerations that the merits of the third complaint of the second plea raised by the applicant in support of her claim for annulment must be examined.

– The merits of the arguments alleging manifest errors of assessment in the handling of the harassment complaint

151 The applicant submits, in essence, that the Parliament committed manifest errors of assessment in the investigation carried out in connection with her request for assistance, which the Parliament reproduced in the contested decision and in the decision rejecting the complaint.

152 In the first place, as regards the monthly withdrawals from her salary, the applicant submits that the APA Special Advisory Committee could not claim that she withdrew 60% of her salary, in cash, in a single withdrawal every month, for the ‘mere pleasure of carrying’ cash with her. Furthermore, the assessment by the President of the Parliament that the applicant did not alert any authorities for two and a half years is wrong. Next, the fact that the national judicial authorities and OLAF initiated investigations should have been taken into consideration. Lastly, the fact that C asked the applicant to erase their conversations should also have led the administration to a different conclusion.

153 In the second place, as regards the pressure exerted by the Member and his entourage, the applicant argues that it is not plausible that the Member did not try to intimidate her, since she was one of the only people in a position to give evidence against him. In addition, it is also not plausible that she made up the various attempts by the Member to influence her. Furthermore, it is not plausible either that all the witnesses cited by the applicant lied. Therefore, by adopting the conclusions of the APA Special Advisory Committee, without any further consideration, the Parliament erred in fact and in law.

154 However, as is apparent from paragraph 139 above, the Court has no jurisdiction in the present action to annul or rule on the legality of the decisions taken in the context of the harassment procedure. Consequently, the applicant’s claims seeking to establish a manifest error of assessment in the handling of her harassment complaint are ineffective.

– The merits of the arguments alleging a manifest error of assessment in the decision rejecting the complaint

155 First, the applicant argues that the assertion in the decision rejecting the complaint that there is no doubt that she gave her money to C, to which she had even confessed during the preliminary interview, is blatantly at odds with what she has always stated. The applicant did not under any circumstances feel that she owed her position to C. In practical terms, it would have been difficult for C to withhold the applicant’s money after he had been dismissed by the Member, since the applicant was no longer in contact with him.

156 Secondly, in the reply, the applicant argues that the record of the preliminary meeting, produced by the Parliament as an annex to the defence, does not in reality reflect the statements made by her in that interview, which is evidenced by her observations of 14 May 2018.

157 Thirdly, the applicant argues in the reply (i) that the Parliament misinterpreted the 2014 emails and (ii) that the translation of some of those emails, produced by the Parliament, is inaccurate and misleading. Furthermore, the Parliament had produced only a part of that exchange, with the applicant providing the rest. Lastly, the applicant provides six further exchanges of emails or telephone messages.

158 According to the applicant, it is apparent from those various email exchanges that the Member withheld the applicant’s salary, which corresponds to the withdrawals of money made by her, as her bank account statements show. Furthermore, it is also apparent from those exchanges that the applicant never made sarcastic or defamatory comments about the Member. Accordingly, she was the victim of that system.

159 In the present case, it must be borne in mind that the contested decision is based on a single ground for dismissal, namely a breakdown in the relationship of trust due to conduct on the part of the applicant that was not in keeping with the dignity of the post. In the decision rejecting the complaint, the Parliament stated that the conduct not in keeping with the dignity of the post to which the contested decision referred was the role played by the applicant in the scheme comprising her reclassification to grade 19 and the payments subsequently made by the applicant to C. The Parliament’s assessment relies on the 2014 emails and the record of the preliminary interview.

160 In response to a question put by the Court at the hearing, the applicant stated that she was not ‘saying’ that the relationship of trust with the Member still existed at the time when the contested decision was adopted, but that the loss of the relationship of trust was attributable to the conduct of the Member. Furthermore, the applicant submits that it was the Member, and not C, who was the recipient of her payments, which is what she has always asserted, contrary to the statements attributed to her in the record of the preliminary interview and to what is stated in the decision rejecting the complaint.

161 It is in the light of those considerations that the different items of evidence submitted by the parties must be examined in turn in order to establish whether, taken in isolation and then overall, that evidence is such as to render implausible the ground for dismissal relied on by the Member and accepted by the AECE in the contested decision.

162 As far as the 2014 emails are concerned, first, it must be noted that, to C’s question, ‘Is it easy to change your pay grade to 19 in order to cover mine?’ posed on 21 July 2014 at 16.57, the applicant replied 10 minutes later, ‘I don’t think they’ll make any difficulties for us’. Although the use of the personal pronoun ‘us’ does not make it possible to identify with certainty the group of persons concerned, it indicates clearly the involvement of the person who is speaking, namely the applicant, in the scheme at issue. In that regard, it must be noted that the applicant has not adduced any evidence in support of her claim that she acted in accordance with instructions received from the Member.

163 Secondly, the email of 22 July 2014, in which C states that ‘I told [the Member] to put you into the highest grade in your contract to cover my salary too, and we hit a wall’, also highlights the applicant’s involvement in the scheme which led to her reclassification to grade 19.

164 Thirdly, the message of 14 August 2014, sent to C at 18.13, supports the idea of the existence of a scheme to bring about the applicant’s reclassification to grade 19 and to make payments to C from her new salary. Indeed, the applicant wrote as follows:

‘… [they have] sent me confirmation [from the Parliament] that all is in order regarding the modification of contract increasing my salary. They told me that I would receive retroactive payment on 15 October, when I will be able to pay you. We are paid on about the 15th of each month in Parliament. So in October, I will pay you for the last week of July (from when my revised salary became effective), August, September and October.’

165 Once again, the use of the personal pronoun ‘we’ indicates the involvement of the person who is speaking, that is to say, the applicant, in the actions being described, in particular the modification of her contract of employment. Furthermore, even though the applicant does not confirm in her message that she has already given money to C, she expresses her intention to proceed in such a way in respect of at least three of her salaries, from the time of their increase, following her reclassification.

166 Nor does the applicant adduce any evidence in support of her allegation that she acted in accordance with the Member’s instructions requiring her to give part of her salary to C. The applicant also does not explain how the use of the verb ‘to pay’, in the translation produced by the Parliament, instead of the verb ‘to give’, is capable of calling into question the findings made in paragraphs 163 and 165 above.

167 Fourthly, the applicant’s assessment of the emails dated 22 September 2014 must be accepted in part. It is clear from the full exchange of emails (Annex B.1 to the defence, as supplemented by Annex C.2 to the reply) that the money transferred by the applicant to C on that occasion came from the salary of another APA, namely D. However, contrary to what the applicant asserts, the contents of Annex C.2 to the reply do not make it apparent that the money was transferred from D’s account. In addition, it is not apparent from Annex C.3 to the reply that D’s bank card, referred to in that annex, was used to carry out that transfer. Although Annex C.4 to the reply refers to a power of attorney over D’s bank account to be drawn up for the benefit of the applicant, that annex contains only the form for the power of attorney and the applicant has not produced the dated and signed power of attorney itself. Those exchanges therefore support the idea that the applicant transferred money to C, even though, in the situation referred to, that money came from the salary of another APA.

168 In that context, it should be noted that, contrary to the intention that she expressed in the reply, the applicant has not produced before the Court her bank account statements which, as she asserts, would show that she did not make any bank transfer to C’s account, that 60% of her salary was withdrawn in the Parliament’s buildings and that those withdrawals continued, after C’s dismissal in December 2015, until February 2017.

169 As regards the evidence adduced by the applicant in order to establish the Member’s participation in the scheme, note should be taken, in particular, in Annex C.6 to the reply, partly reproduced in Annex A.5 to the application, of the message of C, who writes ‘salary 19 minus your salary’, then, later, ‘4237 for [the Member]’ to which the applicant responds ‘yes’. Similarly, in Annex C.8 to the reply, partly reproduced in Annexes A.5 and A.6 to the application, C writes, ‘And you give him each month 4279 Euro from your salary’, to which the applicant responds ‘4240 I believe but yes’. Those various exchanges therefore suggest that the Member is the beneficiary of the sums of money paid by the applicant.

170 However, it should be noted that those exchanges took place solely between C and the applicant and that at no time does the Member appear as a sender or recipient of those messages. Consequently, those exchanges are not capable of establishing, on their own, that the applicant acted on the instructions of the Member.

171 Furthermore, the emails referred to in paragraphs 162 to 164 above reduce the credibility of the applicant’s assertions, made in the administrative and judicial proceedings, that she always gave to the Member the money paid from her salary. They also reduce the credibility of her denials of the statements set down in the record of the preliminary interview according to which she confirmed that she had systematically given part of her salary to C.

172 It follows from the foregoing that, whereas the applicant’s participation in the scheme which led to her reclassification to grade 19 and in the subsequent payments made from her new salary has been established beyond any reasonable doubt on the basis of a body of consistent evidence, that is not the case with regard to the Member’s involvement, which has not been established to the requisite legal standard in the light of the evidence brought before the Court in the current proceedings.

173 It is apparent from the 2014 emails, taken as a whole, that the applicant, first, played a role in the scheme that led to her reclassification to grade 19 and, secondly, transferred money to C which came from another APA’s salary. She also expressed her intention to proceed in that way from her own salary. She does not at any time appear hesitant or show any opposition to the course taken by those events. On the contrary, she appears on each occasion to be diligent and cooperative, never challenging the questions put or the acts requested.

174 Moreover, the messages implicating the Member, exchanged between the applicant and C, cannot call into question the applicant’s participation in the scheme. The applicant does not dispute the fact that her reclassification to grade 19 was motivated by the giving up of part of her new salary. Nor does she deny that she made regular payments from that salary.

175 In that context, it is necessary to bear in mind the importance of the relationship of trust that must exist between a Member and his or her APA, the importance of which is also emphasised in the contested decision.

176 Furthermore, it must also be borne in mind that any failure on the part of her hierarchical superior to observe the rules in force, including any act which might adversely reflect on the dignity of the position of a Member, cannot justify the breaches of duty of which the applicant is accused, as she remains responsible for her own actions (see, to that effect, judgments of 11 July 1985, R. v Commission, 255/83 and 256/83, EU:C:1985:324, paragraph 44; of 19 March 1998, Tzoanos v Commission, T‑74/96, EU:T:1998:58, paragraph 330; and of 4 May 1999, Z v Parliament, T‑242/97, EU:T:1999:92, paragraph 115).

177 Consequently, even if the Member did participate in the scheme described by the applicant, that factor cannot justify the applicant’s breaches of her own professional duties, justifying at the same time the AECE (and not the Member) in terminating her contract on the ground of a breakdown in the relationship of trust, while also bringing proceedings, as appropriate, against the Member once the results of the various enquiries made became known.

178 That conclusion cannot be called into question by OLAF’s letter of notification of 19 November 2020 or its contents. In fact, that information cannot be taken into account for the purposes of assessing the legality of the contested decision, since the legality of the contested measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (see judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 148 and the case-law cited). It is clear that OLAF, which investigated the matter for almost four years, closed its investigation and communicated its recommendations after the adoption of the contested decision. In any event, OLAF’s investigation procedure is an independent administrative procedure which differs from that relating to the dismissal, for which the AECE is responsible. Accordingly, as has already been noted with regard to the harassment procedure in paragraphs 137 and 138 above, it must be stated that, even though the OLAF investigation and the dismissal procedure relate to the same events, those are nevertheless distinct and independent procedures. They differ both in their procedures and competent authorities and by the facts to be established, the assessments to be carried out and the evidence submitted.

179 The applicant’s assertions are not, therefore, such as to render implausible the ground for dismissal relied on by the Member and adopted by the Parliament in the contested decision.

180 It follows that the Parliament did not commit a manifest error of assessment in forming the view that those facts were capable of causing the loss of trust alleged by the Member and accepted by the AECE in the contested decision.

181 It follows that the second plea in law must be rejected, as must, consequently, the claim for annulment in its entirety.

182 The applicant submits that the Parliament has incurred liability on account of the unlawfulness of the contested decision and the decision rejecting the complaint.

183 She argues that, in relation to her request for assistance, she had been exposed to, inter alia, very strong pressure in terms of responsibility, workload and stress. The Parliament did not take her arguments in the request for assistance and in her observations of 14 May 2018 into consideration. She has also been subject to constant attacks by the Member in the national media. Lastly, she was put under tremendous pressure by the Member in relation to her evidence to the Greek prosecutor and OLAF, while the Member’s ‘request for dismissal’ was a way of pressuring and punishing her.

184 In relation to the termination of her contract, she argues, the Parliament did not take her arguments into account, did not give reasons for the contested decision, and, by taking that decision, it aggravated the non-material harm arising from the situation of harassment to which the applicant was subjected due to the lack of assistance from the Parliament.

185 In the light of those factors, the applicant seeks compensation for non-material harm resulting from the damage inflicted on her health, dignity and professional reputation, estimated ex aequo et bono at EUR 50 000.

186 The Parliament contends that the claim for compensation should be rejected as unfounded.

187 In that regard, suffice it to recall that claims for compensation of material or non-material damage must be rejected where, as in the present case, they are closely linked with the claims seeking annulment, which themselves have been rejected as inadmissible or unfounded (see judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 165 and the case-law cited).

188 Therefore, the claim for compensation, in so far as it seeks to obtain compensation for non-material damage arising from the unlawfulness of the contested decision and the decision rejecting the complaint, must be rejected.

189 Furthermore, in so far as that claim seeks to obtain compensation for non-material damage in connection with a separate fault on the part of the administration, it must be held that there is nothing in the file to support a finding that the contested decision, as supplemented by the decision rejecting the complaint, caused non-material damage to the applicant that is linked to a separate fault on the part of the administration, by exacerbating, in particular, non-material harm caused by the alleged harassment to which the applicant claims to have been subjected. In any event, such a claim, to the extent to which it is based on a cause unrelated to the contested decision, which is the only decision complained of, would be inadmissible (see, to that effect, judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraphs 206 to 208).

190 It follows that the claim for compensation in connection with a separate alleged professional fault on the part of the AECE must also be rejected.

192 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, she must be ordered to bear her own costs and to pay those incurred by the Parliament, in accordance with the form of order sought by the latter.

(b) The second plea: infringement of Articles 12a and 24 of the Staff Regulations, infringement of the right to have one’s affairs handled impartially and fairly, breach of the duty to act diligently, and manifest errors of assessment

(1) The first limb: infringement of Articles 12a and 24 of the Staff Regulations on the basis that the dismissal constitutes an act of retaliation after the request for assistance

(3) The third limb: infringement of Articles 12a and 24 of the Staff Regulations, on the basis that the contested decisions are vitiated by manifest errors of assessment

– The merits of the arguments alleging manifest errors of assessment in the handling of the harassment complaint

– The merits of the arguments alleging a manifest error of assessment in the decision 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) >> BG v Parliament (Civil service - Accredited parliamentary assistants - Judgment) [2021] EUECJ T-253/19 (14 July 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/T25319.html Cite as: EU:T:2021:459, [2021] EUECJ T-253/19, ECLI:EU:T:2021:459

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