Case T‑401/21

KN

v

European Parliament

 Judgment of the General Court (Eighth Chamber, Extended Composition), 30 November 2022

(Law governing the institutions – Member of the EESC – Discharge procedure in respect of the implementation of the budget of the EESC for the financial year 2019 – Parliament resolution designating the applicant as the perpetrator of psychological harassment – Action for annulment – Act not open to challenge – Inadmissibility – Action for damages – Protection of personal data – Presumption of innocence – Obligation of confidentiality – Principle of good administration – Proportionality – Sufficiently serious breach of a rule of law intended to confer rights on individuals)

1.      Actions for annulment – Actionable measures – Concept – Measures producing binding legal effects – Resolution of the European Parliament designating a member of the European Economic and Social Committee (EESC) as the perpetrator of psychological harassment – Resolution with observations forming an integral part of the decision on discharge in respect of the implementation of the budget of the EESC – Not included – Possibility of challenging that resolution by means of an action to establish non-contractual liability of the European Union – Admissibility criteria

(Arts 263, 268 and 340, second para., TFEU)

(see paragraphs 22-25, 29-31)

2.      Non-contractual liability – Conditions – Unlawfulness – Damage – Causal link – One of those conditions not met – Action dismissed in its entirety

(Art. 340, second para., TFEU)

(see paragraphs 33, 34, 96)

3.      European Parliament – Powers – Scrutiny of the use of public funds – Margin of discretion – Scope

(Art. 14 TEU; Art. 319 TFEU)

(see paragraph 40)

4.      Non-contractual liability – Conditions – Unlawfulness – Sufficiently serious breach of EU law – Processing of personal data that is necessary for the performance of a task carried out in the public interest – Not included

(Arts 15 and 340, second para., TFEU; European Parliament and Council Regulation 2018/1725, Art. 5(1)(a))

(see paragraphs 45-53)

5.      EU law – Principles – Fundamental rights – Presumption of innocence – Scope – Resolution of the European Parliament designating a member of the European Economic and Social Committee (EESC) as the perpetrator of psychological harassment – Reproduction of the findings of the European Anti-Fraud Office (OLAF) report – No infringement of the principle of the presumption of innocence – Respect for the confidentiality of the OLAF report

(Charter of Fundamental Rights of the European Union, Art. 48(1); European Parliament and Council Regulation No 883/2013, Art. 17(4))

(see paragraphs 61-64, 67, 68, 74, 75, 84, 85)

6.      EU law – General principles of law – Right to good administration

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

(see paragraph 89)

Résumé

The applicant, KN, is a member of the European Economic and Social Committee (EESC) and held the post of President of the Employers’ Group between April 2013 and October 2020.

After having been informed of allegations concerning the applicant’s behaviour towards other members of the EESC and members of its staff, the European Anti-Fraud Office (OLAF) opened an investigation. On 16 January 2020, OLAF recommended to the EESC that it take all necessary measures to prevent any further cases of harassment on the part of the applicant in the workplace. Following those recommendations, on 9 June 2020, the EESC Bureau asked the applicant to resign from his duties as President of the Employers’ Group and to withdraw his candidacy for presidency of the EESC. It also discharged him from all activities involving the management of staff.

On 20 October 2020, the European Parliament refused to grant the EESC discharge in respect of the implementation of its budget for the financial year 2018, expressing its concerns about what had been done to follow up on OLAF’s recommendations.

Subsequently, by decision of 28 April 2021, the Parliament granted the EESC discharge in respect of the implementation of its budget for the financial year 2019. (1) The following day, the Parliament adopted a resolution in which it recalled that the refusal to grant discharge in respect of the implementation of the budget of the EESC for 2018 was founded inter alia on the insufficient measures taken by the EESC following acts of psychological harassment found on the part of the applicant. (2)

The applicant has therefore brought before the Court an action, first, for annulment of the two acts of the Parliament cited above and, secondly, for compensation for the damage he claims to have suffered.

The Court, sitting in extended composition, dismisses the applicant’s action in its entirety. In its judgment, first, it provides clarification as to whether acts adopted by the Parliament in the context of the annual discharge procedure in respect of the implementation of the budget of EU institutions, bodies, offices and agencies are open to challenge. Secondly, it rules on new questions regarding the processing of personal data and respect for the presumption of innocence by the Parliament when it adopted the resolution with observations forming an integral part of the decision on discharge.

Findings of the Court

In the first place, the Court finds that the claims for annulment are inadmissible. In that regard, it recalls that only the operative part of an act is capable of producing legal effects and the assessments made in the recitals of an act are not capable of forming the subject of an action for annulment. Those assessments can be subject to review by the EU judicature only to the extent that, as grounds for an act adversely affecting a person’s interests, they constitute the necessary basis for the operative part of that act. The observations in the contested resolution, which form an integral part of the decision and make it possible to identify the applicant as the perpetrator of psychological harassment, do not constitute the necessary basis for the operative part of that decision relating to discharge in respect of the implementation of the budget of the EESC for the financial year 2019. The claims for annulment are therefore inadmissible for lack of an act open to challenge by the applicant. However, the applicant is not denied access to justice since an action for non-contractual liability (3) is available if the conduct of the Parliament in question is of such a nature as to entail liability on the part of the European Union.

In the second place, the Court finds that, in the present case, the applicant has not demonstrated the existence of unlawful conduct on the part of the Parliament and, consequently, rejects the claim for damages.

In that context, ruling on the infringement alleged by the applicant of his right to the protection of personal data, the Court states that the Parliament has a wide margin of discretion in its observations on the way in which the institutions and bodies of the European Union have implemented the section of the budget relating to them. In the present case, the Parliament considered that the measures taken by the EESC to implement the observations in the resolution relating to the financial year 2018 were insufficient. Thus, the processing of the applicant’s personal data appeared to be necessary for the performance of the task of monitoring the implementation of the budget of the EESC for the financial year 2019. The processing of those data by the Parliament was also necessary on account of the fact that the psychological harassment attributed to the applicant was the cause of serious problems within the EESC which resulted in expenditure which could have been avoided. Moreover, in the context of the discharge procedure, the publication of the contested acts, in accordance with the principle of transparency, is intended to strengthen public scrutiny of the implementation of the budget and contribute to the appropriate use of public funds by the administration of the European Union. Consequently, the Parliament did not exceed the limits of its discretion in considering that it was necessary to process the applicant’s personal data in order to carry out its task of monitoring the implementation of the budget by the EESC.

Ruling on the alleged infringement of the principle of the presumption of innocence, the Court recalls, first of all, the case-law of the European Court of Human Rights, according to which, as long as the person accused of an offence has not been finally convicted by a court, a parliamentary assembly is bound to respect that principle and, therefore, to exercise discretion and restraint when it expresses its views, in a resolution, concerning the acts for which that person is the subject of criminal proceedings. (4)

As regards, more specifically, statements made by a public authority after an OLAF investigation has closed, the Court also points out that respect for the principle of the presumption of innocence does not preclude, in the interests of informing the public of actions implemented in the context of possible failures or fraud, an EU institution from reporting, using balanced and measured wording and in an essentially factual manner, the main findings of the OLAF report concerning a member of an institution. (5) Thus, the mere fact that, in the contested resolution, the Parliament is said to have made it possible to identify the applicant as the perpetrator of psychological harassment, which corresponds to the main conclusion of the OLAF report, does not in itself constitute a breach of that principle. The particular circumstances of the present case make it possible to understand that the statement, in the French version of the contested resolution, that the applicant was ‘judged’ (jugé) to be responsible for harassment seeks merely to recall OLAF’s findings as to the existence of psychological harassment on the part of the applicant. That conclusion is also supported by other language versions of the contested resolution in which the wording used by the Parliament makes no reference to a judgment in the judicial sense.

1      Decision (EU, Euratom) 2021/1552 of the European Parliament of 28 April 2021 on discharge in respect of the implementation of the general budget of the European Union for the financial year 2019, Section VI – European Economic and Social Committee (OJ 2021 L 340, p. 140).

2      Resolution (EU) 2021/1553 of the European Parliament of 29 April 2021 with observations forming an integral part of the decision on discharge in respect of the implementation of the general budget of the European Union for the financial year 2019, Section VI – European Economic and Social Committee (OJ 2021 L 340, p. 141).

3      Under Article 268 and the second paragraph of Article 340 TFEU.

4      See inter alia, in that regard, ECtHR, 18 February 2016, Rywin v. Poland, CE:ECHR:2016:0218JUD000609106, paragraphs 207 and 208.

5      See, to that effect, judgment of 6 June 2019, Dalli v Commission (T‑399/17, not published, EU:T:2019:384, paragraphs 175 to 178).