Case T‑309/21

TC

v

European Parliament

Judgment of the General Court (Fourth Chamber, Extended Composition), 7 June 2023

(Law governing the institutions – Rules governing expenses and allowances for Members of Parliament – Parliamentary assistance allowance – Recovery of sums unduly paid – Reasonable time – Burden of proof – Right to be heard – Protection of personal data – Article 9 of Regulation (EU) 2018/1725 – Article 26 of the Staff Regulations)

1. Actions for annulment – Natural or legal persons – Interest in bringing proceedings – Need for a vested and present interest – Decision of partial withdrawal or of replacement of the contested act in the course of the proceedings – No need in part to adjudicate

   (Art. 263 TFEU)

   (see paragraphs 38, 39)

2. European Parliament – Members – Expenses and allowances – Parliamentary assistance allowance – Check relating to the use of parliamentary assistance expenses – Burden of proof

   (Decision of the Bureau of the European Parliament concerning implementing measures for the Statute for Members of the European Parliament, Arts 33(1), second sentence, and 68)

   (see paragraphs 49-53, 89)

3. EU budget – Financial regulation – Recovery of debts due to the European Union from third parties – Time limit for communicating a debit note – Time limit for sending the debit note to the debtor precisely stated in the regulation – Reasonable time principle – Applicability – Absence

   (European Parliament and Council Regulation 2018/1046, Art. 98(2), second subparagraph)

   (see paragraphs 61, 62)

4. European Parliament – Members – Expenses and allowances – Recovery of sums unduly paid – Right to be heard before the adoption of any decision liable to affect the Member adversely – Request for disclosure of data necessary in order to make observations – Included

   (Charter of Fundamental Rights of the European Union, Art. 41(2))

   (see paragraphs 89, 90)

5. European Parliament – Members – Expenses and allowances – Recovery of sums unduly paid – Right to be heard before the adoption of any decision liable to affect the Member adversely – Request by the institution for observations concerning information unavailable to the Member – Guarantee of the practical effect and effectiveness of the right to be heard – Scope – Right of disclosure of information to the Member – Included – Condition – The striking of a balance between the right to the protection of personal data and the right to be heard

   (Charter of Fundamental Rights of the European Union, Art. 41(2); European Parliament and Council Regulation 2018/1725, Art. 9)

   (see paragraphs 112-117)

Résumé

By a judgment of 7 March 2019, L v Parliament, ( 1 ) the General Court had annulled the decision of the European Parliament terminating L’s contract as the accredited parliamentary assistant (‘the APA’) – accredited for the purposes of assisting TC, the applicant, a Member of the European Parliament – due to the breakdown in the relationship of trust on the ground that the APA had failed to comply with the rules relating to authorisations to engage in external activities. The Court had found that it was apparent from the material in the file that not only was the applicant aware of the APA’s external activities, but that, moreover, they were on his direct initiative.

Following that judgment, the Secretariat-General of the Parliament informed the applicant of the commencement of a procedure for the recovery of sums unduly paid, ( 2 ) in respect of the parliamentary assistance provided to the applicant by the APA. At the same time the applicant was invited to submit, within two months, observations and evidence to rebut the Parliament’s preliminary findings on the external activities which the APA had carried out and to prove that the APA had actually performed the duties of an accredited parliamentary assistant. In response, the applicant sent observations and additional evidence to the Parliament, while requesting a number of documents and information relating to the APA’s personal file at the Parliament, the copies of the correspondence exchanged by the APA with the Parliament’s representatives concerning his work and the complete file in the case which gave rise to the judgment of 7 March 2019. The Parliament partially granted the applicant’s request for the documents and the information.

By decision of 16 March 2021 (‘the contested decision’), the Secretary-General of the Parliament considered that a sum of money had been unduly borne by that institution in connection with the use of the APA and that it should be recovered from the applicant. ( 3 ) Consequently, the Director-General for Finance of the Parliament issued, on 31 March 2021, a debit note ordering the recovery of that sum.

Hearing an action for annulment of the contested decision, which it upholds, the General Court rules in the present case on a debtor’s right to plead infringement of the reasonable time principle when the institution sends it a debit note within the five-year period laid down by the Financial Regulation, reaffirms the importance of observing the principle of the right to be heard in proceedings for recovery of parliamentary assistance expenses commenced by the Parliament against its Members and, lastly, decides on the novel question of the right to rely, as a guarantee of the right to be heard, on grounds of public interest in order to obtain the transmission of personal data.

Findings of the Court

In the first place, the Court rejects the plea alleging infringement of the reasonable time principle on the ground that the Parliament based the contested decision on data from the case L v Parliament, in respect of which the application had been lodged in April 2017.

In that regard, the Court notes that Article 41(1) of the Charter of Fundamental Rights of the European Union lays down the reasonable time principle, which forms an integral part of the right to good administration, and that there is an obligation to act within a reasonable time in all cases where, in the absence of any statutory rule, the principles of legal certainty or the protection of legitimate expectations preclude the EU institutions and natural or legal persons from acting without any time limits. On the other hand, where the administration acts within the period specifically prescribed by a provision, it cannot be validly claimed that the requirements arising from the right for a person to have his or her affairs dealt with within a reasonable time are disregarded.

Contrary to the previous rules, ( 4 ) those applicable in the present case ( 5 ) now provide for the authorising officer to send the debit note immediately after establishing the amount receivable and at the latest within a period of five years from the time when the EU institution is in a position to claim its debt.

There is therefore no need, in the present case, to have recourse to the reasonable time principle in order to assess the period within which the debit note was sent. In addition, the Court notes that, first, the debit note was sent to the applicant immediately after the establishment of the amount receivable, in the contested decision, and that, second, the moment at which the Parliament was able to claim its debt coincides with the lodging of the application in the case L v Parliament or with the delivery of the judgment in that case, with the result that the five-year period laid down by the Financial Regulation in force was complied with by the Parliament.

In the second place, the Court upholds the plea alleging infringement of the right to be heard. As a preliminary point, it notes that the right of every person to be heard, before any individual measure which would affect him or her adversely is taken, is guaranteed, in particular, by the IMS, ( 6 ) under which the Member concerned is to be heard prior to the adoption of any decision on the matter. That right guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely.

In the present case, the Court finds that several requests by the applicant to the Parliament for documents and information were refused, except the documents concerning the end of the APA’s contract.

It should be borne in mind that, where there is doubt as to the propriety of the use of parliamentary assistance expenses paid to an APA, it is for the Member of Parliament to establish that that APA worked for him or her, in connection with his or her parliamentary mandate, throughout the period during which those expenses were paid. Furthermore, when requested to provide such proof, the Member of Parliament must disclose to the Parliament, within the prescribed time limit, the information in his or her possession. If other information appears to be relevant, he or she may request disclosure thereof from the institutions, bodies, offices and agencies of the European Union which have that information, on the basis of the right to be heard, provided that they concern the data necessary to enable him or her to make his or her observations effectively on the proposed recovery measure. The Parliament which receives such a request cannot refuse to provide the data requested without infringing the right to be heard, unless it relies, in support of that refusal, on grounds which may be regarded as justified having regard, first, to the circumstances of the case and, second, to the applicable rules.

The Court therefore examines whether the grounds relied on by the Parliament for not disclosing the data requested by the applicant are justified.

First, the Court rejects the grounds relied on by the Parliament for refusing the applicant’s request concerning the disclosure of ‘all emails from 2015, 2016 and 2019’ and the correspondence exchanged by the applicant with the relevant services of the Parliament concerning the APA’s work. It points out that each institution organises its work in compliance with the rules applicable to it and which it can lay down, and considers that, in the present case, the Parliament was entitled to limit the retention period for Members’ emails by allowing them to be safeguarded in private folders. However, the Court determines whether, in the present case, that policy was implemented in such a way as to ensure observance of the right to be heard.

The Court notes that, from the beginning of 2016, the Parliament became aware of a situation of conflict between the applicant and the APA as regards whether or not the latter was carrying out his activities for the applicant in compliance with the rules governing parliamentary assistance. Consequently, from that time, it was necessary for the Parliament to ensure the retention of emails which could establish the exact nature of the activities of the APA during the dismissal procedure and, if that procedure gave rise to other judicial or administrative proceedings, such as a recovery procedure, for as long as those other proceedings remained open.

Furthermore, the possibility of personal archiving cannot have the effect of relieving the Parliament of the obligation to ensure the retention of all emails relevant to establishing that, in accordance with the rules which the institution has laid down for itself, an APA has effectively and exclusively carried out his or her activities for the Member to whom he or she was assigned, in direct connection with the latter’s mandate. It adds that that possibility cannot relieve the Parliament of the obligation to disclose the emails thus retained, where, in accordance with the right to be heard, which is fundamental in the legal order of the European Union, a request to that effect is made by the Member concerned who, as in the present case, is the subject of a recovery procedure for improper use of parliamentary assistance expenses.

Second, the Court rejects the grounds relied on by the Parliament for refusing the request concerning the APA’s ‘personal file’ (all the documents relating to his recruitment and work), including information on the number of times protection of Parliament had been requested in respect of that APA, and the data relating to his presence which could be extracted from his Parliamentary access card.

As regards the ground that the transmission of those data was contrary to the regulation on the protection of personal data with regard to the processing of personal data by the institutions, bodies, offices and agencies of the European Union and on the free movement of such data, ( 7 ) admittedly, the Court notes that, since they had to be used for his defence in the recovery procedure, the data requested by the applicant could not be regarded as being ‘necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the recipient’. ( 8 ) For the same reason, it cannot be considered that the transmission of those data to the applicant served a ‘specific purpose in the public interest’. ( 9 )

However, the Court notes that the request for observations sent by the Parliament to the applicant in order to enable him to exercise his right to be heard is based, in the present case, on information held by that institution without being known, as the case may be, to the applicant, or on information of which the applicant was aware when he was the APA’s hierarchical superior, but which is no longer available to him.

Therefore, with regard to the importance accorded to the right to be heard, the fact that such information may be found in the APA’s ‘personal file’ cannot, as such, preclude the information from being disclosed to the applicant in order to enable him to make his observations effectively in the exercise of that right.

The right to the protection of personal data is not absolute, but should be considered in relation to its function in society and weighed on that basis against other fundamental rights, in an approach which gives each of the rights involved its proper place in the EU legal order, in the light of the facts of the case, in accordance with the principle of proportionality. The need to strike such a balance between the right to the protection of personal data and the other fundamental rights recognised in that legal order is emphasised by the EU legislature in the regulation on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, ( 10 ) of which the regulation on the protection of personal data by the EU institutions, bodies, offices and agencies is the equivalent.

The Court concludes that it cannot be accepted that the Parliament may invite the applicant to state his views effectively on the information contained, as the case may be, in the APA’s file, without, as in the present case, giving him access to that information, after weighing up, on the one hand, that APA’s interest in the data concerning him not being transmitted to third parties and, on the other hand, the applicant’s interest in presenting his observations effectively in the context of the recovery procedure commenced against him.

As regards the ground that the transmission of those data was contrary to the provisions of the Staff Regulations of Officials of the European Union on personal files of officials and other servants, ( 11 ) applicable to parliamentary assistants, the Court finds that the confidentiality of the documents in question cannot be relied on against the applicant, who is, moreover, the author of some of the documents concerned as the APA’s hierarchical superior, to the extent necessary for the applicant to exercise his right to be heard.

Lastly, third, the Court rejects the grounds relied on by the Parliament for refusing the applicant’s request concerning the file relating to the case which gave rise to the judgment of 7 March 2019. As regards the granting of anonymity to the APA by the Court in the proceedings which gave rise to that judgment, the Court notes that anonymity is intended to omit the name of a party to the dispute or that of other persons mentioned in connection with the proceedings concerned, or of other information in the documents relating to the case to which the public has access. By contrast, the anonymity granted by the Court does not concern the confidentiality of the material placed on the file of those proceedings outside those proceedings, in the context of the relations between the parties and third parties. Consequently, the Court’s decision on anonymity did not preclude the Parliament from disclosing to the applicant the documents exchanged in the judgment of 7 March 2019, which were likely to be relevant for the purposes of the applicant’s exercise of his right to be heard.

( 1 ) Judgment of 7 March 2019, L v Parliament (T‑59/17, EU:T:2019:140).

( 2 ) Pursuant to Article 68 of the Decision of the Bureau of 19 May and 9 July 2008 concerning implementing measures for the Statute for Members of the European Parliament (OJ 2009 C 159, p. 1; ‘the IMS’).

( 3 ) Pursuant to Article 68(1) of the IMS.

( 4 ) Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1), and Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 (OJ 2012 L 362, p. 1).

( 5 ) Second subparagraph of Article 98(2) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1).

( 6 ) Article 68(2) of the IMS.

( 7 ) Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ 2018 L 295, p. 39).

( 8 ) Within the meaning of Article 9(1)(a) of Regulation 2018/1725.

( 9 ) Within the meaning of Article 9(1)(b) of Regulation 2018/1725.

( 10 ) Recital 4 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1).

( 11 ) Article 26 of Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community, as amended.