Case T‑17/19

Giulia Moi

v

European Parliament

Judgment of the General Court (Fourth Chamber, Extended Composition), 3 February 2021

(Institutional law – European Parliament – Psychological harassment – Decisions of the President of the Parliament finding that two accredited parliamentary assistants suffered harassment and imposing on a Member of Parliament the penalty of forfeiture of entitlement to the daily subsistence allowance for a period of 12 days – Rules 11 and 166 of the Rules of Procedure of the Parliament – Internal appeal – Decision of the Bureau of the Parliament confirming the penalty – Rule 167 of the Rules of Procedure of the Parliament – Action for annulment – Time limit for bringing an action – Admissibility – Rights of the defence – Non-contractual liability)

1. European Parliament – Members – Disciplinary measures – Penalties – Decision of the President of the Parliament – Complaint – Optional – Application to the EU judicature – Whether permissible – Starting point of the period for bringing an action for annulment – Inseparability of the harassment decision and the penalty decision

   (Art. 263 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Rules of Procedure of the European Parliament, Art. 167)

   (see paragraphs 43-47, 49-52, 77)

2. Actions brought by officials – Prior administrative complaint – Correspondence between the complaint and the action – Not applicable to a dispute between a Member and the European Parliament in the context of an action for annulment

   (Arts 263 and 270 TFEU; Staff Regulations, Arts 90 and 91)

   (see paragraphs 84-90)

3. EU law – Principles – Rights of the defence – Application to any procedure opened against any person likely to end in a measure adversely affecting him or her – Principle to be assured even in the absence of legislation governing the procedure in question – Scope – Procedure intended to determine whether harassment by a Member of the European Parliament has occurred – Mandatory disclosure to the person accused of harassment of all the documents in the file concerning him or her – Breach of the principle of respect for the rights of the defence – Consequences

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

   (see paragraphs 91-105, 107-110, 112, 114-120, 122-125, 127, 132-134)

4. Non-contractual liability – Conditions – Real and certain damage caused by an illegal measure – Annulment of the illegal measure in dispute – Whether appropriate reparation for non-material damage

   (Art. 340, second para., TFEU)

   (see paragraphs 143, 144)

Résumé

The applicant was a Member of the European Parliament from 2014 to 2019. In November 2017, after submitting a request for assistance, ( 1 ) claiming problems with their working environment, two of her accredited parliamentary assistants lodged a harassment complaint with the Parliament’s advisory committee responsible for those matters. ( 2 )

By two separate letters of 2 October 2018, the President of the Parliament, after considering the opinion of the advisory committee and the applicant’s comments, adopted, first, the decision finding that the two complainants had suffered harassment and, second, the decision imposing on the applicant, as a penalty for her conduct towards the two complainants, the forfeiture of entitlement to the daily subsistence allowance for a period of 12 days.

On 16 October 2018, the applicant lodged an internal appeal ( 3 ) with the Bureau of the Parliament against the penalty decision of the President. By decision of 12 November 2018, delivered on 14 November 2018 in plenary sitting and notified that same day, the Bureau of the Parliament confirmed the penalty decision of the President. On 11 January 2019, the applicant brought an action for annulment against the decisions of the President concerning both the harassment and the penalty, against the decision of the Bureau of the Parliament, as well as an action for damages.

By its judgment, the General Court, sitting in extended composition, annuls those three decisions and dismisses the applicant’s action as to the remainder, in particular her action for damages. The Court thus clarifies the case-law in relation to, first, the relationship between the right to be heard and the rights of the defence and, second, the evidence which must be established in order to obtain an annulment following the finding of a breach of the rights of the defence. Furthermore, the Court provides clarifications on the limits of the application of the rule ‘of correspondence’ ( 4 ) between the complaint and the application.

Findings of the Court

Examining, in the first place, the admissibility of the application for annulment, in so far as it concerns the penalty decision of the President, the Court considers that the adoption of the decision of the Bureau of the Parliament does not prevent the applicant from bringing an action against the penalty decision of the President even though that decision was the subject of an internal appeal under Rule 167 of the Rules of Procedure. ( 5 ) Furthermore, the Court considers that the applicant could seek annulment of the penalty decision of the President no later than the date of expiry of the period for bringing proceedings calculated from the date of notification of the decision of the Bureau of the Parliament. In the present case, the Court considers that the application cannot be regarded as out of time and is, therefore, admissible.

Examining, in the second place, the admissibility of the application for annulment, in so far as it concerns the harassment decision of the President, the Court considers that the right to an effective remedy and the principle of the sound administration of justice, taken together, require here that the question of the lawfulness of decisions constituting one and the same dispute be brought before the EU Court at the same time, namely, in the present case, the decision finding that harassment had occurred and the decision, which is dependent on it, ruling on the penalty which such conduct should attract. Thus, since the harassment decision of the President was inextricably linked to the penalty decision, the time limit for bringing an action for annulment against both the former and the latter decision did not start to run until the date of notification of the decision of the Bureau of the Parliament adopted following the internal appeal. Similarly, the Court considers that that application cannot be regarded as being out of time and is, therefore, also admissible.

In relation to the admissibility of the first plea in law alleging breach of the principle of respect for the rights of the defence, the Court, first, takes care to recall that the applicant’s action is based on Article 263 TFEU, not on Article 270 TFEU, which concerns any dispute between the European Union and its servants. The rule of correspondence was developed in the context of proceedings brought on the basis of the latter provision and in connection with the mandatory prior complaint procedure established by the Staff Regulations. To date, neither the Court of Justice nor the General Court has extended that rule to cover actions brought on the basis of Article 263 TFEU which were preceded by an administrative stage. Accordingly, the Court considers that the rule of correspondence is not applicable to a dispute such as that brought before it by the applicant and, consequently, the first plea in law cannot be declared inadmissible on the ground that the breach of the principle of respect for the rights of the defence was not alleged before the Bureau of the Parliament in the internal appeal.

As to the merits of the first plea in law, the Court takes care to recall that the rights of the defence include the right to be heard and the right to have access to the file and are among the fundamental rights forming an integral part of the European Union legal order and enshrined in the Charter of Fundamental Rights of the European Union. Thus, the Court emphasises that the general principle of respect for the rights of the defence applies in the present case as the procedure initiated against the applicant is liable to culminate, and indeed culminated, in the imposition of a penalty on a Member of Parliament for harassment. In a procedure intended to determine whether harassment has occurred, that principle means that, with due regard to any requirements of confidentiality, the person against whom allegations have been made must, prior to the adoption of the decision adversely affecting him or her, receive all documents in the file, both inculpatory and exculpatory, concerning that harassment and be able to state his or her views on them. In the present case, the Court notes that, during the procedure which resulted in the finding of harassment and the imposition of the penalty, while the applicant was informed of the content of the complaints of the two accredited parliamentary assistants, she had no access to either the statements made by them before the advisory committee or the documents in the file, particularly the full content of the emails and text messages, even though those different items of information were taken into consideration in order to conclude that harassment had occurred and to impose a penalty on the applicant. Consequently, the Court considers that the general principle of respect for the rights of the defence of the applicant was breached in the present case.

Focusing on the consequences of the breach of that principle, the Court recalls that a breach of the rights of the defence results in the annulment of the decision taken at the end of a procedure only if, had it not been for such an irregularity, the outcome of the procedure might have been different. ( 6 ) That requirement is satisfied where, having not had access to the documents which should have been disclosed in accordance with respect for the rights of the defence, the applicant was not able effectively to submit his or her observations and was thus deprived of even a slight chance of being better able to defend him or herself. In such a case, failure to disclose documents in the file which the authorities have relied on inevitably affects, in the light of the protection to be afforded to the rights of the defence, the lawfulness of the measures adopted at the end of a procedure liable to affect the applicant adversely. In the present case, the Court considers that, since the applicant did not have access to the full content of the file, she was deprived of the chance of being better able to defend herself and that that irregularity inevitably affected the content of the decisions taken on the existence of harassment and on the penalty.

Consequently, the Court considers that the three decisions in question must be annulled for breach of the general principle of respect for the rights of the defence.

( 1 ) Under Article 24 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).

( 2 ) The committee dealing with harassment complaints between accredited parliamentary assistants and Members of Parliament and its prevention at the workplace was established by Article 1(1) of the internal rules of the European Parliament of 14 April 2014, as amended on 6 July 2015.

( 3 ) Under Rule 167 of the Rules of Procedure of the Parliament.

( 4 ) That rule requires, failing which it will be deemed to be inadmissible, that a plea or head of claim submitted before the EU Courts must already have been raised in the pre-litigation procedure or must be closely linked to criticism made in the same context.

( 5 ) Judgments of 21 February 2018, LL v Parliament (C‑326/16 P, EU:C:2018:83, paragraphs 34 to 37), and of 19 September 2018, Selimovic v Parliament (T‑61/17, not published, EU:T:2018:565, paragraph 45).

( 6 ) Judgments of 4 April 2019, OZ v EIB, C‑558/17 P, EU:C:2019:289, paragraphs 76 to 78), and of 25 June 2020, HF v Parliament (C‑570/18 P, EU:C:2020:490, paragraph 73).