JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

12 December 2013

CH

v

European Parliament

‛Civil service — Accredited parliamentary assistants — Early termination of the contract — Request for assistance — Psychological harassment’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which CH seeks annulment of the decision of the European Parliament of 19 January 2012 to terminate her contract of employment as an accredited parliamentary assistant, annulment of the decision of 15 March 2012 rejecting her request for assistance and, so far as necessary, annulment of the decisions rejecting the complaints against those decisions, and an order that the Parliament pay her the sum of EUR 120 000 in damages.

Held:

The decision of the European Parliament of 19 January 2012 terminating CH’s contract of employment as an accredited parliamentary assistant is annulled. The decision of the European Parliament of 15 March 2012 rejecting CH’s request for assistance of 22 December 2011 is annulled. The European Parliament is ordered to pay CH the sum of EUR 50 000. The European Parliament is to bear its own costs and is ordered to pay the costs incurred by CH.

Summary

1. Officials — Accredited parliamentary assistants — Dismissal on grounds concerning the relationship of mutual trust — Observance of the rights of the defence — Obligation to hear the person concerned

   (Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Conditions of Employment of Other Servants, Arts 5a and 139(1)(d))

2. Officials — Accredited parliamentary assistants — Dismissal on grounds concerning the relationship of mutual trust — Obligation to state reasons — Discretion of the authority empowered to conclude contracts of employment — Scope

   (Charter of Fundamental Rights of the European Union, Art. 31(1); Conditions of Employment of Other Servants, Arts 5a and 139(1)(d))

3. Officials — Psychological harassment — Source of the harassment — Presumed perpetrator of the harassment — Member of the European Parliament — Included

   (Staff Regulations, Art. 12a(1) and (2))

4. Officials — Obligation of administration to provide assistance — Enforcement in a case of psychological harassment — Submission of a request for assistance — Dismissal following submission of the request for assistance — Request not devoid of purpose following termination of the contract of the person making the request

   (Charter of Fundamental Rights of the European Union, Art. 31(1); Staff Regulations, Arts 12a and 24))

5. Officials — Obligation of administration to provide assistance — Enforcement in a case of psychological harassment — Identification of the perpetrator of the harassment — Scope of the obligation to provide assistance

   (Staff Regulations, Arts 12a and 24; Rules of Procedure of the European Parliament, Rule. 9(2))

6. Actions brought by officials — Actions for damages — Annulment of the contested measure not adequate compensation for non-material harm — Monetary award

   (Art. 340(2) TFEU)

1.  With regard to a decision to dismiss an accredited parliamentary assistant on the ground of loss of trust, adopted without the authority empowered to conclude contracts of employment hearing the assistant concerned, it should be noted that, under Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, every person has the right to be heard before any individual measure which would affect him or her adversely is taken. A dismissal decision constitutes an individual measure which affects the assistant adversely and the latter therefore has the right to be heard.

   (see paras 33-34)

2.  As for the question whether, where the competent authority empowered to conclude contracts of employment receives from a Member a request to end an accredited parliamentary assistant’s contract before its expiry date due to a breakdown of the relationship of trust, it can only take note of that breakdown and comply with the request for dismissal, since it has no discretion as regards taking action on that request, it must be noted that, according to Article 20(2) of the Implementing Measures for Title VII of the Conditions of Employment of Other Servants, adopted by a decision of the Bureau of the European Parliament, a Member seeking termination of the contract of such an accredited parliamentary assistant is required to set out the reason(s) therefor and, according to the second subparagraph, that authority is to terminate the contract after examining the request. Hence, it is clear from that provision that the authority empowered to conclude contracts of employment is required at least to examine the legality of the request for termination. If that were not so, the obligation on the Member to set out the reason(s) and the obligation on that authority to examine the request would have no purpose.

   Therefore, without its being necessary to rule on the extent of the examination of the request by that authority under Article 20(2) of the Implementing Measures, the wording of that article requires that authority to check whether or not any plea that may have been put forward in that regard, by its nature, infringes fundamental rights and the provisions governing employment relationships between the European Union and its staff, interpreted in the light of those rights.

   (see paras 39-41)

   See:

   17 October 2006, T‑406/04 Bonnet v Court of Justice, para. 52

3.  The rights under Article 12a of the Staff Regulations are applicable where the perpetrator of the harassment is a Member of the European Parliament. Although it is true that Article 12a(1) of the Staff Regulations applies only to officials, it is also true that Article 12a(2) refers to an official who has been the victim of psychological harassment, without any precise detail as to the source of that harassment. It follows that Article 12a(1) does not, as such, preclude the Parliament from taking action, where the presumed perpetrator of the harassment is a Member of that institution.

   (see para. 51)

4.  A request for assistance does not become devoid of purpose following termination of the contract of the person making the request. If, before the date on which the contract was terminated, the person making the request had actually been the victim of harassment, that would be an established fact and termination of the contract would not in that case have eradicated the harassment. The duty of the European Union to provide assistance does not cease to exist, inter alia, at the point when the official concerned ceases to perform his duties, such an interpretation being manifestly incompatible with the purpose and scope of that duty. In the light of Article 31(1) of the Charter of Fundamental Rights of the European Union, which provides that every worker has the right to working conditions which respect his or her health, safety and dignity, it should be noted that the rationale underlying the duty to provide assistance is not only the interests of the service but also, as is clear from the wording of that article, the interests of the person concerned.

   (see paras 52-53)

5.  Article 24 of the Staff Regulations is applicable where the alleged harasser is a Member of the European Parliament. According to the wording of that article, its purpose is to protect officials against the acts of third parties. Members, since they are not members of the Parliament’s staff, are third parties in relation to officials who are victims of their conduct. Nor can the applicability of Article 24 of the Staff Regulations be excluded because the Parliament has no means of coercing its Members. As regards protection of an official against the acts of third parties, because the institutions, in principle, do not have any means of coercing third parties, the Staff Regulations lay down a duty to provide assistance, enabling the administration to assist an official in his search for protection by the means provided for under the law of the Member State where the offence concerned took place.

   It should be noted, moreover, that, according to Rule 9(2) of the Rules of Procedure of the Parliament applicable at the material time, Members’ conduct must be characterised by mutual respect, be based on the values and principles laid down in the basic texts on which the European Union is founded and respect the dignity of Parliament. Consequently, there is nothing to prevent the Parliament, on the basis of that provision, from inviting a Member to collaborate in an administrative inquiry, in order to determine whether the alleged harassment on his part did take place.

   In addition, an interpretation of Articles 12a and 24 of the Staff Regulations in relation to the rules governing the contracts of accredited parliamentary assistants, whereby the authority empowered to conclude contracts of employment can neither initiate an administrative inquiry in order to examine a case of psychological harassment where the alleged perpetrator is a Member, nor assist such an assistant in order to protect him against the actions of such a Member, would deprive those articles of effectiveness and preclude any form of review, however limited, of the request for assistance. Such an interpretation manifestly conflicts with Article 31(1) of the Charter of Fundamental Rights of the European Union, which expressly provides that every worker has the right to working conditions which respect his or her health, safety and dignity.

   (see paras 55, 57-59)

6.  According to settled case-law, the annulment of an unlawful act of the administration may constitute, in itself, appropriate and, in principle, sufficient compensation for any non-material harm which that measure may have caused, unless the applicant shows that he has sustained non-material harm that can be separated from the illegality on which the annulment is based that cannot be compensated in full by that annulment.

   It is common ground that the feeling of injustice and the anxiety caused by the fact that a person has to conduct a pre-litigation procedure and then a litigation procedure in order to have his rights recognised constitutes harm which may be inferred from the fact alone that the administration committed unlawful acts. Such harm may be compensated where it is not possible to provide compensation through the satisfaction resulting from the annulment of contested decisions.

   (see paras 64-65)

   See:

   9 July 1987, 44/85, 77/85, 294/85 and 295/85 Hochbaum and Rawes v Commission, para. 22; 7 February 1990, C‑343/87 Culin v Commission, paras 27 and 28

   9 November 2004, T‑116/03 Montalto v Council, para. 127; 6 June 2006, T‑10/02 Girardot v Commission, para. 131

   8 May 2008, F‑6/07 Suvikas v Council, para. 151