Contents
Judgment of the General Court (First Chamber)13 July 2018note(Civil service — Accredited parliamentary assistants — Article 24 of the Staff Regulations — Request for assistance — Article 12a of the Staff Regulations — Psychological harassment — Advisory Committee dealing with harassment complaints between Accredited Parliamentary Assistants and Members of the European Parliament and its prevention at the workplace — Decision rejecting the request for assistance — Error of assessment — Scope of the duty to provide assistance — Duration of the administrative procedure — Reasonable period — Refusal to disclose reports drawn up by the Advisory Committee)In Case T‑275/17,Michela Curto, former accredited parliamentary assistant at the European Parliament, residing in Genoa (Italy), represented by L. Levi and C. Bernard-Glanz, lawyers,vEuropean Parliament, represented by O. Caisou-Rousseau, E. Taneva and M. Rantala, acting as Agents,THE GENERAL COURT (First Chamber),composed of I. Pelikánová, President, P. Nihoul and J. Svenningsen (Rapporteur), Judges,Registrar: P. Cullen, Administrator,having regard to the written part of the procedure and further to the hearing on 3 May 2018,gives the following
Judgment
Background to the dispute
1The applicant, Ms Michela Curto, was recruited by the Authority empowered to conclude contracts of employment of the European Parliament (‘the AECE’) as an accredited parliamentary assistant (‘APA’) to assist Ms M., a Member of that institution, for the period from 16 July 2013 to the end of the parliamentary term, namely, May 2014.
2On 7 November 2013, Ms M. requested that the AECE terminate the applicant’s contract on the ground that the applicant had decided, without seeking permission, not to come to work for an entire week and had therefore not complied with the terms of her contract of employment. The Member of Parliament stated in her request that, when she raised this with the applicant, the latter insulted her and then disappeared.
3From 7 to 24 November 2013, the applicant was on sick leave.
4On 11 November 2013, the applicant received a letter from the head of the Recruitment and Transfers Unit of the Directorate for Human Resources Development of the Directorate-General for Personnel of the Parliament, informing her that Ms M. had requested that the AECE terminate her contract of employment as an APA on the ground that there had been a breakdown in the relationship of trust. The decision to terminate the applicant’s contract placed her on leave for the duration of the notice period.
5On 25 November 2013, the leave office of the Directorate for Management of Support and Social Services of the Directorate-General for Personnel received a medical certificate from the applicant intended to extend her medical leave from 25 November to 15 December 2013 and a request from the applicant to spend her medical leave in Italy between 28 November and 15 December 2013. In that regard, one of the medical officers of the institution attempted, unsuccessfully, to reach the applicant by telephone and by her private and professional email accounts to ask her to get in touch with the leave office.
6On 27 November 2013, the applicant informed the leave office that she was already in Italy.
7By decision of 5 December 2013, the AECE decided to terminate the applicant’s contract with effect from 24 December 2013, taking account of the fact that the applicant had been on sick leave from 15 to 24 November 2013 (‘the decision confirming the dismissal’).
8By decision of 9 December 2013, the Director of the Directorate for Management of Support and Social Services of the Directorate-General for Personnel, as the AECE, considered that the applicant had failed to have due regard to the second paragraph of Article 60 of the Staff Regulations of the Officials of the European Union (‘the Staff Regulations’), applicable to APAs under Article 131(5) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), pursuant to which ‘if an official wishes to spend sick leave elsewhere than at the place where he is employed he shall obtain prior permission from the appointing authority’. The applicant did not seek prior permission in that regard and left the place where she was employed without such permission. On those grounds, the Director decided that the medical certificate submitted by the applicant on 25 November 2013 must be rejected as invalid and that, accordingly, under the first paragraph of Article 60 of the Staff Regulations, the applicant’s period of absence from 25 November to the end of her contract must be regarded as unauthorised, was therefore to be deducted from her annual leave and, if appropriate, remuneration for that period was to be forfeited.
9On 16 December 2013, the leave office of the Directorate for Management of Support and Social Services received another medical certificate from the applicant issued on 14 December 2013, stating that it had been necessary for her to take sick leave for the period from 14 to 24 December 2013. By decision of 13 January 2014, the director of that Directorate, acting as the AECE, decided to reject that medical certificate as invalid on the same grounds as those set out in her previous decision of 9 December 2013.
10On 14 December 2013, the applicant’s doctor issued a medical certificate placing her on sick leave until 13 January 2014.
11On 3 February 2014, the applicant lodged a complaint, pursuant to Article 90(2) of the Staff Regulations, against the decisions of 9 December 2013 and 13 January 2014.
12On 10 February 2014, the applicant’s doctor issued a medical certificate placing her on sick leave until 12 March 2014.
13On 5 March 2014, the applicant lodged a complaint, pursuant to Article 90(2) of the Staff Regulations, registered on 6 March 2014, against the decision confirming the dismissal.
14On 14 April 2014, through her lawyers, the applicant submitted a request for assistance to the AECE under Article 90(1) and Article 24 of the Staff Regulations (‘the request for assistance’), on the ground that she had been subjected to ‘psychological harassment’, within the meaning of Article 12a of the Staff Regulations, applicable by analogy to APAs under Article 127 of the CEOS, by Ms M. during her period of employment as an APA. Two of the applicant’s colleagues, through those same lawyers, submitted similar requests for assistance at the same time, which were dealt with together by the AECE.
15In her request for assistance, the applicant asked the AECE to open an administrative inquiry to establish the facts, to reassign her in order to prevent her from being further exposed to Ms M. in the event that the decision confirming the dismissal should be withdrawn or annulled, and to adopt any other appropriate measure, such as sanctions against Ms M., a letter from the AECE recognising that she had been subjected to psychological harassment, financial support to enable her to defend her rights, coverage of her medical expenses and concrete action to prevent such a situation recurring.
16In support of her request for assistance, the applicant submitted written statements from three APAs who had previously assisted Ms M., including the two APAs who had submitted requests for assistance at the same time as the applicant. Those APAs tended to confirm that the applicant had been subjected to inappropriate conduct by Ms M., consisting of disdain, humiliating language, threats, scornful language, insults and screams. The applicant also described a certain number of events that took place while she was employed as an APA. Moreover, she explained that, as a result of the treatment she was allegedly subjected to by Ms M., she had a panic attack on 6 November 2013 and went to the Parliament Medical Service, where a medical officer recommended that she take a period of rest. She explained that, the next day, her personal doctor placed her on sick leave due to ‘decompensation of anxiety following harassment problems at work’, which justified ‘sick leave until 15 December 2013’.
17On 22 May 2014, the Director-General of the Directorate-General for Personnel (‘the Director-General for Personnel’), as the AECE stated, ‘forwarded’ the applicant’s ‘file’ to the Advisory Committee dealing with harassment complaints between Accredited Parliamentary Assistants and Members of the European Parliament and its prevention at the workplace (‘the “APA” Special Advisory Committee’), which had recently been established by decision of the Bureau of the Parliament of 14 April 2014 adopting the Internal Rules for the Advisory Committee dealing with harassment complaints between Accredited Parliamentary Assistants and Members of the European Parliament and its prevention at the workplace (‘the “APA” Internal Rules concerning harassment’). That committee is composed of five members appointed by the President of the Parliament. The president and two members of that committee are Quaestors, while one member is appointed by the Accredited Parliamentary Assistants Committee and Parliament’s administration is represented by the Chair of the Advisory Committee on Harassment and its Prevention at the Workplace, as established by decision of the Parliament of 21 February 2006.
18By decision of 17 June 2014, the Secretary-General of the Parliament (‘the Secretary-General’), in his capacity as the AECE, rejected the complaint of 3 February 2014 as unfounded.
19On 24 June 2014, the applicant, Ms M. and the two other former APAs who had complained of being subjected to psychological harassment by Ms M. were heard by the ‘APA’ Special Advisory Committee.
20On 15 July 2014, the College of Quaestors of the Parliament deliberated, in a closed session, on the confidential report adopted on 24 June 2014 by the ‘APA’ Special Advisory Committee under Article 10 of the ‘APA’ Internal Rules concerning harassment (‘the report of 24 June 2014’), which provides that ‘the Committee shall forward a confidential report to the College of Quaestors containing’ ‘a description of the allegations’, ‘the contents of the proceedings’, ‘the conclusions reached’ and ‘proposals on the action to be taken, where appropriate asking them for instructions to conduct a detailed investigation’. In that context, the College of Quaestors discussed the draft findings proposed by that Committee and decided, unanimously, that there was no need to consider further measures in relation to the case in question.
21By decision of 16 July 2014, the Secretary-General, in his capacity as the AECE, rejected the complaint of 6 March 2014 as, with regard to the decision confirming the dismissal, out of time and, therefore, inadmissible, given that the applicant had acknowledged, in her request for assistance, having received that decision on 11 November 2013. However, as regards the date on which the dismissal took effect, the Secretary-General upheld the complaint in part by deciding that it should have taken effect on 27 December 2013, not on 24 December 2013.
22On 4 November 2014, the ‘APA’ Special Advisory Committee informed the applicant of the College of Quaestors’ findings.
23By application received at the Registry of the Civil Service Tribunal of the European Union on 27 October 2014 and registered as Case F‑125/14, the applicant sought, inter alia, annulment of the decision confirming the dismissal.
24By decision of 12 November 2014, the Director-General for Personnel, in his capacity as the AECE, rejected the request for assistance as unfounded (‘the first decision refusing assistance’).
25Having received a complaint lodged by the applicant, on 12 February 2015, under Article 90(2) of the Staff Regulations, the Secretary-General decided, on 2 June 2015, to withdraw the first decision refusing assistance and to refer the applicant’s case back to the ‘APA’ Special Advisory Committee, and informed the applicant that a new decision would be adopted concerning the request for assistance.
26By order of 25 November 2015, Curto v Parliament (F‑125/14, EU:F:2015:142), the Civil Service Tribunal dismissed the applicant’s action against the decision confirming the dismissal as manifestly inadmissible.
27On 22 December 2015, pursuant to Article 10 of the ‘APA’ Internal Rules concerning harassment, as amended by the decision of the Bureau of the Parliament of 6 July 2015, which provides that the ‘APA’ Special Advisory Committee must forward its confidential report to the President of the Parliament and no longer to the College of Quaestors, the President of the Parliament, after examining the new findings of the ‘APA’ Special Advisory Committee, informed the applicant that the behaviour she described in the request for assistance did not, in his view, constitute inappropriate conduct on the part of a Member of Parliament towards an APA and that he would forward the file to the AECE in order for it to adopt a decision on the request for assistance (‘the President’s reasoned decision’).
28According to the President of the Parliament, who is empowered, under Article 12 of the ‘APA’ Internal Rules concerning harassment, as amended by the decision of the Bureau of the Parliament of 6 July 2015, to take, ‘in the light of the opinion delivered by the [“APA” Special Advisory Committee]’, ‘a reasoned decision as to whether or not it has been prove[d] that harassment has occurred’, and, if appropriate, to ‘impose a penalty on the Member concerned in accordance with Rules 11 and 166 of Parliament’s Rules of Procedure [8th parliamentary term (2009-2014)]’, the use of harsh language and raised voices is not uncommon in stressful situations associated with the activity of Members. Nor is it uncommon, due to the nature of their close and intense working relationship, for Members to contact their APAs by telephone during weekends and holidays. Thus, as regards the telephone calls witnessed by some of the applicant’s friends, during which Ms M. used vulgar and even insulting language with the applicant, the President of the Parliament considered that, even though those instances constituted ‘singular cases’, it was justified for urgent work-related matters and by the fact that Ms M. was not satisfied by the applicant’s performance at work.
29Moreover, the President of the Parliament considered that the acts described in the request for assistance must be assessed in the light of the applicant’s close, familiar relationship with Ms M., whom she has known for a number of years as the mother of one of her friends. Therefore, the colourful language sometimes used by Ms M. in communicating with the applicant could, according to the President, reflect the closeness of their relationship. What is more, he noted that, in October 2013, there appeared to be tension between Ms M., the applicant and two other APAs who, apparently, wanted their contracts to be terminated. In that context, conversations were recorded without Ms M.’s knowledge, which, according to the President of the Parliament, was likely to inflame any working atmosphere anywhere.
30Thus, in his reasoned decision, the President of the Parliament concluded that the behaviour of Ms M. at issue in the present case could not be regarded as excessive in the specific work context of the working relationship between a Member of Parliament and an APA and that, therefore, an objective observer, of normal sensitivity and familiar with the specific work context, would not have concluded that such behaviour might undermine the applicant’s personality, dignity or physical or psychological integrity within the meaning of Article 12a of the Staff Regulations.
31Finally, in his reasoned decision, the President of the Parliament observed that the applicant did not allege psychological harassment in her complaint of 5 March 2014 against the decision confirming the dismissal, that is, before she submitted a request for assistance on 14 April 2014.
32After sending an initial letter to an address at which the applicant no longer lived, the Director-General for Personnel, by letter of 25 February 2016 addressed to the applicant’s lawyers, gave the applicant the opportunity to submit her observations by 1 April 2016 on the President’s reasoned decision, before he adopted, as the AECE, his final decision on the request for assistance.
33In her observations lodged on 30 March 2016, the applicant challenged the preliminary analysis set out in the President’s reasoned decision.
34By decision of 30 June 2016, the Director-General for Personnel, as the AECE, rejected the request for assistance, in essence endorsing the President of the Parliament’s analysis set out in his reasoned decision (‘the second decision refusing assistance’).
35On 27 September 2016, the applicant lodged a complaint, under Article 90(2) of the Staff Regulations, against the second decision refusing assistance.
36By decision of 31 January 2017, the Secretary-General, acting as the AECE, rejected the complaint of 27 September 2016 (‘the decision rejecting the complaint’), stating that the events at issue had occurred against a background of great tension between Ms M. and the applicant. Thus, according to the Secretary-General, although the use of harsh language is in itself deplorable, it is, at the same time, sometimes difficult to refrain from using such language in a stressful political environment. Moreover, the telephone calls received by the applicant when she was at a wedding and one weekend, as referred to in the request for assistance, were justified by urgent work-related matters, the Secretary-General observing that APAs are sometimes led to work outside normal working hours and at weekends. Furthermore, the Secretary-General considered that the fact that Ms M., a Member of Parliament at the time, was not satisfied with the applicant’s performance at work only exacerbated an already tense situation, especially during periods when the workload was considerable.
Procedure and forms of order sought
37By application received at the Court Registry on 10 May 2017, the applicant brought the present action.
38By letter of 25 May 2017, the applicant informed the Court that she did not want the case to be anonymised in her regard. She therefore made a request to the Court to waive the anonymity which it had initially granted to her of its own motion, the Court allowing that request.
39By decision of 12 July 2017, the Court (First Chamber) instructed the Judge Rapporteur to explore the possibility of resolving the dispute by amicable settlement, pursuant to Article 50a of the Statute of the Court of Justice of the European Union and Article 125a(3) of the Rules of Procedure of the General Court. Following the applicant’s refusal to explore that possibility, the Court noted that the procedure had not been successful.
40By letter from the Court Registry of 20 July 2017, the Parliament was requested, inter alia, as a measure of organisation of procedure, to produce the report of 24 June 2014 which had been submitted to the College of Quaestors and to answer certain questions, inter alia, as to whether the AECE remains bound by the duty to provide assistance under Article 24 of the Staff Regulations where, on the date a request for assistance is submitted, the member of staff concerned has left the institution several months previously and is therefore no longer employed by the institution. The applicant, for her part, was requested to explain in greater detail the personal relationship she had with Ms. M. in the years prior to her appointment.
41The parties complied with those measures of organisation of procedure within the prescribed period. However, in its reply of 10 August 2017, the Parliament requested that the report of 24 June 2014, which it refused to disclose, be treated as confidential for the purposes of Article 103 of the Rules of Procedure and that, therefore, the applicant should not be granted access to the report.
42By letter from the Registry of 25 August 2017, the Parliament was requested, inter alia, as a measure of organisation of procedure, to explain to the Court whether the new findings of the ‘APA’ Special Advisory Committee, which were communicated to the President of the Parliament and on which he had relied in his reasoned decision, had been adopted in the form of a report, such as the report of 24 June 2014, which had been submitted to the College of Quaestors and, if so, to produce that report.
43By letter of 8 September 2017, the Parliament confirmed, inter alia, that the ‘APA’ Special Advisory Committee had indeed adopted a second report, on 29 October 2015 (‘the report of 29 October 2015’), but indicated to the Court that, at that stage of the proceedings, it was unable to produce that report either because it had to remain confidential vis-à-vis the applicant.
44By order of 2 October 2017, the Court ordered the Parliament, pursuant to Article 92(3) of the Rules of Procedure, to produce, within a period to be fixed by the Court Registry, the reports of 24 June 2014 and 29 October 2015, which it had refused to produce in response to the measures of organisation of procedure adopted by the Court, specifying that those documents would not be disclosed to the applicant at that stage of the proceedings.
45On 12 October 2017, the Parliament produced the reports of 24 June 2014 and 29 October 2015.
46On 13 October 2017, by a document separate from her reply, the applicant requested that the Court safeguard her right to an effective judicial remedy by granting her access to the reports of 24 June 2014 and 29 October 2015. She also asked the Court to request, if necessary, the Parliament to produce any reports or minutes of the witness hearings drawn up by the ‘APA’ Special Advisory Committee during the administrative inquiry, as well as the findings adopted by the Quaestors in relation to her case on 15 July 2014.
47Following a double exchange of pleadings, the written part of the procedure was closed on 4 December 2017.
48On 18 December 2017, the Court came to the view that the reports of 24 June 2014 and 29 October 2015 are relevant to the ruling in the case and are not confidential vis-à-vis the applicant, inter alia because the two witness statements taken by the ‘APA’ Special Advisory Committee during the administrative inquiry were not confidential as regards the applicant, as the two witnesses concerned had themselves lodged a request for assistance similar to hers and had agreed to provide her with their written evidence for the purposes of the present case. The Court therefore decided that the reports should be disclosed to the applicant pursuant to Article 103(3) of the Rules of Procedure and gave her until 12 January 2018 to submit her observations in that regard.
49On 8 January 2018, the applicant and the Parliament replied to questions asked by the Court by way of measures of organisation of procedure and provided the documents that the Court had requested them to produce.
50On 12 January 2018, the applicant submitted her observations on the reports of 24 June 2014 and 29 October 2015.
51On 9 February 2018, the Parliament submitted its observations on the applicant’s replies of 8 January 2018 and observations of 12 January 2018; on 10 February 2018, the applicant submitted her observations on the Parliament’s replies of 8 January 2018.
52By letter of 23 March 2018, the Parliament requested that, pursuant to Article 109 of the Rules of Procedure, the hearing be held in camera. By decision of 17 April 2018, the Court rejected that request.
53On 3 May 2018, the parties presented oral argument and replied to the Court’s oral questions.
54The applicant claims that the Court should:– annul the second decision refusing assistance and, so far as necessary, the decision rejecting the complaint;– order the Parliament to pay her the amount of EUR 10000, or any other amount which the Court deems appropriate, as compensation for the non-material harm suffered as a result of the AECE’s disregard of the duty to provide assistance laid down in Article 24 of the Staff Regulations, by reason, inter alia, of the excessive duration of the procedure, plus statutory interest, until payment in full has been made;– order the Parliament to pay the costs.
55The Parliament contends that the Court should:– dismiss the action as unfounded;– order the applicant to pay the costs.
Law
Whether the applicant was entitled to submit a request for assistance after the expiry of her contract of employment
56As a preliminary matter, the Court must state its views on the argument made by the Parliament that, at the time she submitted her request for assistance, the applicant was no longer employed by the AECE and Ms M.’s mandate had expired, which means, according to the Parliament, that it could no longer adopt measures of assistance, for the purposes of Article 24 of the Staff Regulations, relating to the applicant’s working conditions or impose sanctions on Ms M. under Rules 166 and 167 of the Rules of Procedure of the Parliament currently applicable.
57In that regard, it should be noted at the outset that, as the Court of Justice has observed, the purpose of the duty to provide assistance under Article 24 of the Staff Regulations is to protect officials and other members of staff in active employment both at the present time and in the future in order to enable them to carry out their duties to the best of their ability in the general interest of the service. The Court of Justice therefore concluded that the duty to provide assistance was not laid down for the benefit of active officials and other members of staff alone, but could also be relied on by former officials or other members of staff, in the case under consideration by retired EU civil servants (see, to that effect, judgment of 12 June 1986, Sommerlatte v Commission, 229/84, EU:C:1986:241, paragraph 19).
58Moreover, in circumstances in which a request for assistance had been duly submitted to the AECE at a time when both the APA and the Member of Parliament concerned were carrying out their respective duties within the institution, it has previously been held that the AECE was still under a duty to conduct an administrative inquiry in respect of psychological harassment alleged, irrespective of whether, in the meantime, the harassment alleged had ceased as a result of the departure of one or the other of the persons concerned (see, to that effect, judgment of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 122) and, therefore, even if, following such a departure, it might no longer be possible for the AECE to adopt the measures referred to in that case by the Parliament.
59In support of that approach, account has been taken of the fact that: (i) the objective of an administrative inquiry is to ascertain the facts and, having done so, to take the appropriate action, in full knowledge of the matter, both in the light of the case that is the subject of the inquiry and, more generally, to comply with the principle of sound administration, in order to prevent such a situation recurring; (ii) the possible acknowledgement, by the AECE, following an administrative inquiry that may have been conducted with the assistance of an advisory committee such as the ‘APA’ Special Advisory Committee, that there has been psychological harassment is in itself likely to have a beneficial effect in the therapeutic recovery process of an APA who has been harassed and may also be used by the victim for the purposes of proceedings before a national court, in respect of which the AECE’s duty to provide assistance under Article 24 of the Staff Regulations will apply and will not lapse at the end of the APA’s period of employment; and (iii) where an administrative inquiry is continued until its completion, it may, on the other hand, be possible to disprove the allegations made by the purported victim, thus making it possible to repair the damage which such an accusation, if it were to prove unfounded, may have caused to the person named as the alleged harasser by an inquiry procedure (judgment of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraphs 95, 123 and 124).
60Thus, in the present case, the fact that, at the time the request for assistance was submitted, it was no longer possible for the AECE to adopt measures of assistance, for the purposes of Article 24 of the Staff Regulations, relating to the applicant’s working conditions and/or impose sanctions on Ms M. under Articles 166 and 167 of the Rules of Procedure of the Parliament is irrelevant as to the issue whether the AECE was under a duty to deal with the request for assistance, notwithstanding the departure of the applicant and Ms M. from the institution and, if appropriate, to continue with the administrative inquiry until its completion.
61That being said, once the contract of a former temporary member of staff has expired, that member of staff cannot submit a request for assistance under Article 24 of the Staff Regulations at any time. In that regard, in so far as neither Article 24 nor Article 90(1) of the Staff Regulations specifies a period within which a request for assistance must be submitted, it is appropriate to apply the requirement that such a request must be submitted within a reasonable period following the period during which the acts alleged in the request took place, which cannot, as a rule, exceed five years (see, to that effect, judgment of 8 February 2011, Skareby v Commission, F‑95/09, EU:F:2011:9, paragraphs 51 and 53).
62In the present case, the request for assistance was submitted a few months after the material facts and, what is more, immediately following the period during which the complaints lodged by the applicant against the decision confirming the dismissal and the AECE’s decisions concerning the validity of the medical certificates she had produced were dealt with. Thus, in the present case, the request for assistance was not submitted out of time, which means that the AECE was indeed under a duty to act on it, and did so when it adopted the second decision refusing assistance.
First head of claim, inasmuch as it seeks annulment of the decision rejecting the complaint
63According 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, where that claim, as such, lacks any independent content (see, to that effect, judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 6 April 2006, Camós Grau v Commission, T‑309/03, EU:T:2006:110, paragraph 43).
64In the present case, as the decision rejecting the complaint merely confirms the AECE’s refusal to consider, in the second decision refusing assistance, that Ms M.’s behaviour towards the applicant is covered by the definition of ‘psychological harassment’ within the meaning of Article 12a of the Staff Regulations, justifying the rejection of the request for assistance under Article 24 of the Staff Regulations, the Court finds that the head of claim seeking annulment of the decision rejecting the complaint lacks any independent content and there is therefore no need to rule on that head of claim specifically, even though, when examining the legality of the second decision refusing assistance, the statement of reasons for the decision rejecting the complaint should be taken into account, as it is deemed to cover the statement of reasons in the second decision refusing assistance also (see, to that effect, judgment of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraphs 58 and 59 and the case-law cited).
First head of claim, inasmuch as it seeks annulment of the second decision refusing assistance
65In support of her claim for annulment of the second decision refusing assistance, the applicant raises two pleas, alleging, first, a manifest error of assessment and, secondly, infringement of Article 24 of the Staff Regulations respectively.
First plea: manifest error of assessment
66In the first plea, the applicant argues that, in refusing to consider that the behaviour of Ms M. described in the request for assistance constituted psychological harassment within the meaning of Article 12a of the Staff Regulations, the AECE committed a manifest error of assessment. In the light of the acts described in the request for assistance, corroborated not only by three other APAs who had assisted Ms M., two of whom also submitted requests for assistance at the same time as the applicant, but also by persons from outside the institution and, at the litigation stage, by two other former Parliament colleagues, the AECE was not entitled to take the view, as it did in the second decision refusing assistance and notwithstanding the fact that it conceded that it was intentional and repeated, that Ms M.’s behaviour was not improper and did not have the effect of undermining the personality, dignity or physical or psychological integrity of the applicant.
67With regard to the acts at issue, the applicant considers that she was subjected to verbal violence, a torrent of insults and aggressive language in particular, as well as psychological pressure, including contradictory orders, and that Ms M.’s improper behaviour was not limited to the events referred to in the request for assistance, but was unceasing.
68By way of example, the applicant refers, inter alia, to the tone in which, in a text message, of 18 October 2013, sent in connection with the organisation of a trip made by Ms M. to Strasbourg (France), which was delayed due to an air traffic controllers’ strike, Ms M. ordered her to apologise in the following words: ‘I’d like you to at least apologise for today’s cock-up!!!’ (‘Mi farebbe piacere ricevere pero almeno le tue scuse per il massacro di oggi !!!’). She then refers to the constant telephone calls from Ms M. during the evening of 26 October 2013 while the applicant was having dinner with two of her friends. Specifying that it was during a ‘green week’, during which Members of Parliament usually return to their constituencies, the applicant explains, supported by witnesses, that Ms M. screamed frantically over the telephone and ended the long series of telephone calls, during which she called the applicant ‘stupid’ (‘stupida’), by telling her to ‘fuck off’ (‘ma va a cagare’). One of the witnesses claims that she heard Ms M. call the applicant a ‘bitch’ (‘stronza’).
69The applicant also refers to the weekend of 5 to 6 October 2013, during which she attended the wedding of one of her friends. During that weekend, Ms M. allegedly called the applicant several times. The applicant took those calls on speaker phone, inter alia while she was driving her car, in the presence of third parties, who agreed to provide written witness statements. According to those statements, Ms M. spoke to the applicant in the following terms: ‘You’re just a bitch! You’re away every weekend for one reason or another, you don’t give a fuck, you only ever think about fucking’ (‘Sei solo una stronza ! Tutti i weekend sei via, per un motivo o per l’altro non te ne frega un cazzo, pensi solo a scopare’); ‘You’re such a bitch! You’re never here over the weekend, you’re so petty and you don’t give a fuck, you only ever think about fucking’ (‘Sei una stronza ! Non ci sei mai il weekend, meschina e menefreghista, pensi solo a scopare’); ‘The only thing you should be doing is saying sorry to me, you lazy bitch, you only ever think about fucking’ (‘Dovresti solo chiedermi scuza menefreghista del cazzo, pensi solo a scopare’); ‘Unfortunately, it’s a question of brain cells; if you can’t manage it you can’t manage it ... you moron’ (‘Purtroppo e’ una questione di neuroni; se non ce la fai non ce la fai … idiota’); ‘Seriously, you’re such a cretin; how is it that you can’t understand ... stupid’ (‘sei proprio una cretina; ma come si fa a non capire … stupida’); ‘you’re such a dickhead ... you’re all idiots, how did I manage to end up surrounded by idiots’ (‘testa di cazzo che non sei altro … siete tutti degli imbecilli, come facio io a trovare solo imbecilli’).
70The applicant also refers to the weekend of 1 to 3 November 2013 during which, while she was in Italy with her partner, Ms M. called her constantly, including late at night at approximately 1 a.m. While the applicant was on the telephone in tears, Ms M., according to the applicant’s claims, supported by her partner, said to her the following: ‘Go on, cry, you moron ... you should just get on your knees and cry, you bitch’ (‘Atroche piangere, cretina … dovresti solo metterti in ginocchio e piangere stronza’).
71The applicant also refers to the fact that, on 7 November 2013, while she was on sick leave, Ms M. ordered her to come to work in a text message worded as follows: ‘Today is a work day and you HAVE TO hand over the files: you were expected at 12, come URGENTLY!!!! Lunch with a friend can wait: YOU SHOULD BE ASHAMED!!!!’ (‘Oggi è una giornata di lavoro e DEVI passare le consegne: eri attesa alle 12, vieni URGENTEMENTE !!!! Il pranzo con amica può attendere: VERGOGNATI !!!!’). The applicant explains that, because she had not come to work, during the afternoon, Ms M. sent her a text message worded as follows: ‘Unfortunately, I have to report your behaviour [to the AECE]!’ (‘Devo, purtroppo denunciare il tuo comportamento !’).
72The applicant also states that, on 13 November 2013, while she was on sick leave and had already received the letter of 11 November 2013 informing her of her dismissal, she received a text message from Ms M. worded as follows: ‘I hope you’re deeply ashamed of your behaviour: you haven’t completed a single task you were assigned and you’re holding up the work in the office (and getting very well paid for it)’ (‘Spero che tu ti vergogni profondamente del tuo comportamento: non hai portato a compimento alcun compito assegnato e stai ostacolando (molto ben retribuita) l’attività dell’ufficio’). Furthermore, on 29 November 2013, Ms M. sent an email to her daughter, a friend of the applicant’s, to discredit the applicant in the following terms: ‘Michela is such a LITTLE SHIT: SHE’S USING UP MY WHOLE BUDGET SITTING AT HOME AND DOING FUCK ALL’ (‘Guarda che MERDA la Michela: STA USANDO TUTTO IL MIO BUDGET PER RIMANERE A CASA E NON FARE UN CAZZO’).
73The Parliament contends that the plea should be rejected as unfounded, claiming that the telephone calls referred to by the applicant took place in tense circumstances and stressful working conditions, that the APAs assisting Ms M. at that time behaved provocatively towards that Member and that, as the applicant was a friend of Ms M.’s daughter, the language used by Ms M. ‘did not go beyond the bounds of a simple argument between the Member and the applicant concerning the work to be done’. Moreover, Parliament notes that the applicant assisted Ms M. for a period of three months only, including the two summer months of 2013, when Ms M. was not in the office. Moreover, the applicant was promoted to Grade 5 on 25 September 2013, which shows, together with the two dozen text messages exchanged in normal or even friendly tones, that Ms M. did not behave inappropriately towards the applicant.
74At the outset, it should be borne in mind that, with regard to the measures to be taken in a situation covered by Article 24 of the Staff Regulations, including the handling of a request for assistance containing allegations concerning psychological harassment within the meaning of Article 12a of the Staff Regulations by a Member of an institution (see judgments of 12 December 2013, CH v Parliament, F‑129/12, EU:F:2013:203, paragraphs 54 to 58, and of 26 March 2015, CN v Parliament, F‑26/14, EU:F:2015:22, paragraph 42), the administration enjoys a broad discretion (judgment of 15 September 1998, Haas and Others v Commission, T‑3/96, EU:T:1998:202, paragraph 54) — subject to review by the EU judicature — regarding the choice of measures and methods for implementing Article 24 of the Staff Regulations (judgment of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraph 48). Review by the EU judicature in that regard is thus limited to assessing whether the institution concerned remained within reasonable bounds and whether it exercised its discretion in a manifestly incorrect way (judgments of 25 October 2007, Lo Giudice v Commission, T‑154/05, EU:T:2007:322, paragraph 137, and of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 89).
75However, in its assessment of the first plea, it falls to the Court to ascertain whether the AECE was right in concluding, in the second decision refusing assistance, that the acts alleged by the applicant did not constitute psychological harassment within the meaning of Article 12a of the Staff Regulations and, therefore, did not justify the adoption of measures in accordance with the duty to provide assistance under Article 24 of the Staff Regulations. In that regard, it should further be pointed out that the definition laid down in Article 12a of the Staff Regulations is based on an objective concept which, although based on a contextual classification of the actions and behaviour of officials and other members of staff, which is not always straightforward, does not, in any event, call for complex assessments to be carried out, such as those that may have to be conducted in respect of economic concepts (see, concerning trade protection measures, judgments of 7 May 1991, Nakajima v Council, C‑69/89, EU:C:1991:186, paragraph 86, and of 27 September 2007, Ikea Wholesale, C‑351/04, EU:C:2007:547, paragraph 40), scientific concepts (see, in respect of decisions of the European Chemicals Agency (ECHA), judgment of 7 March 2013, Rütgers Germany and Others v ECHA, T‑94/10, EU:T:2013:107, paragraphs 98 and 99), or technical concepts (see, in respect of decisions of the Community Plant Variety Office (CPVO), judgment of 15 April 2010, Schräder v CPVO, C‑38/09 P, EU:C:2010:196, paragraph 77), which warrant a margin of discretion being afforded to the administrative body in applying the concept in question. Therefore, where it has been alleged that Article 12a of the Staff Regulations was misapplied, it is necessary to examine whether the AECE erred in its assessment of the facts in the light of the definition of psychological harassment laid down in that provision, not whether that error is manifest.
76The concept of ‘psychological harassment’ is defined, in Article 12a(3) of the Staff Regulations, as ‘improper conduct’, first, in the form of physical behaviour, spoken or written language, gestures or other acts, which takes place ‘over a period’ and is ‘repetitive or systematic’, suggesting that psychological harassment must be understood as a process that occurs over time and presupposes the existence of repetitive or continual behaviour which is ‘intentional’, as opposed to ‘accidental’. Secondly, in order to fall under that definition, such physical behaviour, spoken or written language, gestures or other acts must have the effect of undermining the personality, dignity or physical or psychological integrity of a person (judgment of 13 December 2017, HQ v CPVO, T‑592/16, not published, EU:T:2017:897, paragraph 101; see, also, judgment of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraphs 76 and 77 and the case-law cited).
77Accordingly, it is not necessary to establish that the physical behaviour, spoken or written language, gestures or other acts in question were committed with the intention of undermining the personality, dignity or physical or psychological integrity of a person. In other words, there can be psychological harassment without it being established that there has been any intention on the part of the harasser, by his conduct, to discredit the victim or deliberately impair the latter’s working conditions. It is sufficient that such conduct, provided that it was intentional, led objectively to such consequences (see judgments of 5 June 2012, Cantisani v Commission, F‑71/10, EU:F:2012:71, paragraph 89, and of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 77 and the case-law cited).
78Finally, as the conduct in question must, under Article 12a(3) of the Staff Regulations, be improper, it follows that the classification of such conduct as ‘harassment’ is subject to the condition of its being sufficient, when viewed objectively, to be considered real, in the sense that an impartial and reasonable observer, of normal sensitivity and in the same situation, would consider the behaviour or act in question to be excessive and open to criticism (judgments of 16 May 2012, Skareby v Commission, F‑42/10, EU:F:2012:64, paragraph 65, and of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 78).
79As the present case involves a Member of an institution, it should be noted in addition that, in that capacity, Ms M. was admittedly not directly subject to the obligations laid down in the Staff Regulations, or, in particular, to the prohibition of psychological harassment laid down in Article 12a of those regulations.
80However, according to Article 9(2) of the Rules of Procedure of the Parliament applicable at the material time, that is, during the 7th Parliament (2009-2014), ‘Members’ conduct shall 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, respect the dignity of Parliament and not compromise the smooth conduct of parliamentary business or disturb the peace and quiet of any of Parliament’s premises’. Article 11(3) of the Rules of Procedure applicable to the 8th Parliament (2014-2019) now expressly refers, regarding values and principles, to those laid down in particular in the Charter of Fundamental Rights of the European Union. In addition, it falls to the AECE, in all circumstances, to ensure that the working conditions of its officials and other members of staff have due regard for their health and dignity.
81It follows that, as acknowledged by both the applicant and the Parliament during the hearing, those provisions of the Parliament’s Rules of Procedure also require the Members of that institution to have due regard to the prohibition on psychological harassment laid down in Article 12a of the Staff Regulations, since the ban on such behaviour, imposed in an instrument such as the Staff Regulations, is in fact based on the values and principles laid down in the Treaties and is covered by Article 31 of the Charter of Fundamental Rights, which provides that ‘every worker has the right to working conditions which respect his or her health, safety and dignity’.
82Those points having been made, it must be noted that, in the present case, the acts at issue, as alleged by the applicant in her request for assistance and in her application, have been corroborated by witnesses and, in fact, the accuracy of those claims has been challenged neither at the pre-litigation stage by the AECE nor at the litigation stage by the Parliament. According to the President’s reasoned decision, Ms M. did not dispute the facts concerning her telephone calls at weekends, late at night and while the applicant was on leave either.
83Moreover, although unintentional words or gestures, even if they might seem inappropriate, are, admittedly, excluded from the scope of Article 12a(3) of the Staff Regulations (judgment of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 95), it is common ground that, in the present case, the Parliament does not dispute the repetitive and intentional — that is, voluntary — nature of the behaviour for which Ms M. is criticised and that, in particular, it acknowledges, correctly, that the fact that the applicant was in service for a short time only does not take that behaviour outside the scope of Article 12a of the Staff Regulations.
84However, both the AECE, endorsing the position adopted by the President of the Parliament in the light of the report of 29 October 2015, and the Parliament in its capacity as defendant contend that Ms M.’s conduct towards the applicant cannot be regarded as inappropriate conduct on the part of a Member of Parliament towards an APA. In particular, the use of harsh language and raised voices is not uncommon in stressful situations associated with the work of Members of Parliament. Moreover, Ms M.’s use of vulgar or even insulting language with the applicant could, according to the Parliament, even though those instances constituted ‘singular cases’, be justified for urgent work-related matters and by the fact that Ms M. was not satisfied by the applicant’s performance at work and that, in fact, Ms M. spoke abruptly.
85In that regard, it is clear that the nature, in particular the singular vulgarity, of the language used by Ms M. with the applicant, inter alia on the telephone, constitutes belittlement, both of the applicant herself and of her work. It is also apparent that Ms M. belittled the applicant’s work at her workplace or even insulted her, including in front of persons from outside the institution. Ms M.’s behaviour, as documented in the case file, thus appears to be improper and can in no way be regarded as an attitude befitting a member of an EU institution, which is under a duty, pursuant to Article 31(1) of the Charter of Fundamental Rights, to ensure that the working conditions of its officials and other members of staff respect their health, safety and dignity.
86Contrary to the Parliament’s arguments, the improper nature of the behaviour at issue cannot be tempered by the closeness of the relationship between Ms M. and the applicant on account of the fact that the applicant is a friend of Ms M.’s daughter, or by the allegedly tense atmosphere within Ms M.’s team of APAs.
87Even if it were true, as alleged in essence by Ms M. before the ‘APA’ Special Advisory Committee, that the applicant’s performance at work was not to Ms M.’s satisfaction, that she was employed inter alia on account of her personal connection with Ms M. or, at least, with Ms M.’s daughter, or that the applicant allegedly intended to resign, or even that she signed her own mission orders or infringed provisions of the Staff Regulations, including by recording conversations at her workplace without Ms M.’s knowledge, the fact remains nevertheless that the applicant was entitled to work under conditions that respected her health and dignity. Even though such circumstances could potentially justify disciplinary measures or dismissal on the ground of a breakdown in the relationship of trust, they cannot justify a Member of an EU institution behaving in such an improper, repetitive and intentional manner towards an EU official or other member of staff. In any event, the AECE remains under a duty, under Article 24 of the Staff Regulations, read in conjunction with Article 31(1) of the Charter of Fundamental Rights and Article 12a of the Staff Regulations, to ensure that the working conditions of its officials and other members of staff respect their health and dignity, and to provide, in particular, a work environment that does not expose them to any kind of harassment, whether psychological or sexual.
88As for the Parliament’s claim relating to the high stress levels intrinsic to the work of the Members of that institution, inter alia due to the sustained nature of their work, which means that those Members must, if necessary, work at weekends and sometimes even during holidays, which therefore justifies requiring APAs to be available outside normal working days and hours, it is clear that the issue in the present case is not necessarily the fact that Ms M. contacted the applicant outside those days and hours but, fundamentally, the improper nature of Ms M.’s behaviour, not only at the workplace during working hours, but also during the applicant’s rest periods, in particular the tone and vulgarity of the language used on the telephone repeatedly and in such a way that intruded on that APA’s personal life.
89It follows from the foregoing that, when it found, in the second decision refusing assistance, that the conduct of Ms M. at issue in the present case was not improper within the meaning of Article 12a of the Staff Regulations, the AECE made an error of assessment — which is, moreover, manifest — in the light of the definition laid down in that provision.
90As to whether that behaviour had the effect of undermining the personality, dignity or physical or psychological integrity of the applicant within the meaning of Article 12a of the Staff Regulations, it is also apparent that, when it found, in the second decision refusing assistance, that that was not so in the present case, the AECE made an error of assessment — which is, moreover, manifest — in the light of the definition laid down in that provision.
91In the light of the singular vulgarity of the language used repetitively with the applicant, of its insulting nature, and of the obvious belittlement of the applicant herself and the quality of her work, openly conveyed in that language, the AECE was not entitled to conclude that the personality, dignity or psychological integrity of the applicant had not been undermined by such improper conduct on the part of Ms M.
92Moreover, even though the opinions of medical experts are, in themselves, not such as to establish the existence, as a matter of law, of harassment or of fault on the part of the institution in the light of its duty to provide assistance (judgments of 6 February 2015, BQ v Court of Auditors, T‑7/14 P, EU:T:2015:79, paragraph 49; of 16 May 2017, CW v Parliament, T‑742/16 RENV, not published, EU:T:2017:338, paragraph 69; and of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 92), the medical certificates produced in the present case confirmed that the psychological integrity of the applicant had actually been undermined.
93Having regard to all the foregoing considerations, the Court finds that an objective observer, of normal sensitivity and familiar with the work context specific to Members of Parliament and their APAs, would have concluded that the conduct of Ms M. at issue in the present case was excessive and open to criticism and was likely to have undermined the personality, dignity or physical or psychological integrity of the applicant.
94The first plea must therefore be upheld.
The second plea: breach of Article 24 of the Staff Regulations
95In support of the second plea for annulment, the applicant argues that the AECE failed to fulfil its duty to provide assistance under Article 24 of the Staff Regulations when it (i) failed to open an administrative inquiry with due diligence and speed and, in that context, failed to refer the matter to the ‘APA’ Special Advisory Committee, which led to the procedure taking many months longer, (ii) failed to act with due care, as shown by the fact that the AECE waited until the first complaint had been upheld before deciding, finally, to open an administrative inquiry, and (iii) sent the President’s reasoned decision to an address at which she no longer lived, which resulted in a further delay of two months. The applicant thus criticises the delays in the adoption of the AECE’s various decisions, which resulted, according to the applicant, in a delay in her bringing proceedings before a national court against Ms M., as she deemed it necessary, for the purposes of the national proceedings, to be able to rely on the official finding, by the AECE, that the alleged psychological harassment had occurred.
96The Parliament contends that the plea should be rejected as unfounded, arguing, in particular, with regard to the length of time taken to deal with the request for assistance, that the time should be regarded as running only from the decision of 2 June 2015 upholding the applicant’s complaint against the first decision refusing assistance.
97In that regard, where a request for assistance for the purposes of Article 24 of the Staff Regulations is made to the AECE or, as the case may be, the appointing authority of an institution, pursuant to Article 90(1) of the Staff Regulations, it must, by virtue of the duty to provide assistance and when faced with an incident which is incompatible with the good order and smooth running of the service, intervene with all the necessary vigour and respond with the rapidity and solicitude required by the circumstances of the case so as to ascertain the facts and, having done so, to take the appropriate action in full knowledge of the matter. To that end, it is sufficient that the official or other member of staff who is seeking the protection of his institution provide prima facie evidence that the attacks of which he claims to have been the victim actually took place. When such evidence is provided, the institution concerned is then under an obligation to take the necessary measures, in particular to conduct an administrative inquiry, with the cooperation of the complainant, to determine the facts which gave rise to the complaint (judgments of 26 January 1989, Koutchoumoff v Commission, 224/87, EU:C:1989:38, paragraphs 15 and 16; of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraph 46; and of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 87).
98In cases of allegations of harassment, the duty to provide assistance includes, in particular, the duty of the administration to examine seriously, expeditiously and in total confidentiality, the request for assistance in which the harassment is alleged and to inform the complainant of the action to be taken in respect of that complaint (judgments of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraph 47; of 27 November 2008, Klug v EMEA, F‑35/07, EU:F:2008:150, paragraph 74; and of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 88).
99With regard to the measures to be taken in a situation which, as in the present case, is covered by Article 24 of the Staff Regulations, the administration enjoys a broad discretion — subject to review by the EU judicature — regarding the choice of measures and methods for implementing Article 24 of the Staff Regulations (judgments of 15 September 1998, Haas and Others v Commission, T‑3/96, EU:T:1998:202, paragraph 54; of 25 October 2007, Lo Giudice v Commission, T‑154/05, EU:T:2007:322, paragraph 137; and of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 89).
100In that regard, it is appropriate to reject at the outset the applicant’s complaint concerning the fact that she had to lodge the first complaint before, as she alleged, she was able to ensure that an administrative inquiry would be opened. First, when the AECE referred the applicant’s case for the first time, on 22 May 2014, to the ‘APA’ Special Advisory Committee, it opened an initial administrative inquiry by entrusting it to that body, during which the committee heard the applicant, Ms M. and two other APAs. Secondly, the applicant cannot take issue with the AECE (the Secretary-General) for upholding her complaint by deciding to refer her case once again to that committee. Moreover, given the AECE’s broad discretion regarding the choice of measures and methods for implementing Article 24 of the Staff Regulations, the fact that the Secretary-General upheld the complaint does not amount to an acknowledgement on the part of the latter of a manifest error of assessment vitiating the first decision refusing assistance.
101As regards the overall delay in handling the request for assistance in the present case, it must be recalled that, as the Staff Regulations make no specific provision as to the period within which an administrative inquiry must be conducted by the administration, inter alia in cases alleging psychological harassment, the AECE must have due regard in those circumstances for the ‘reasonable time’ principle (see, to that effect, judgment of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraphs 59 and 62). In that regard, the EU institution or body concerned must, when conducting an administrative inquiry, ensure that each measure is adopted within a reasonable time following the previous measure (see judgment of 10 June 2016, HI v Commission, F‑133/15, EU:F:2016:127, paragraph 112 and the case-law cited) and, contrary to the Parliament’s claim, the fact that the applicant and Ms M. had left the institution is not such as to release the AECE from its obligation to act swiftly in handling the request for assistance, inter alia in the light of the objectives assigned to it under Article 24 of the Staff Regulations, as referred to in paragraphs 97 and 98 above.
102In that regard, it is apparent that, in the present case, in the exercise of its duty to provide assistance, the AECE failed to have regard to its duty to act quickly under Article 24 of the Staff Regulations. After the College of Quaestors adopted its findings, on 15 July 2014, the AECE waited until 12 November 2014, that is, almost four months, before deciding to reject the request for assistance, that decision being finally communicated on 2 June 2015 by the Secretary-General’s adjudicating on the complaint of 12 February of that year. Although the applicant’s complaint was thereby upheld on 2 June 2015, it was not until 22 December 2015, that is, more than six months later, that the AECE sent her the President’s reasoned decision, based on the second report, of 29 October 2015, of the ‘APA’ Special Advisory Committee, which, moreover, had not deemed it necessary to hear the persons concerned again; if such hearings had taken place, that might have explained the six-month delay.
103In addition, irrespective of the Parliament’s argument that the applicant had not, at that time, provided the AECE with her new address, it is apparent that, despite the fact that the applicant had chosen to be represented by her lawyers at the pre-litigation stage, including when lodging the complaints referred to in paragraphs 11 and 13 above, the AECE sent the President’s reasoned decision to an address at which the applicant no longer lived and took the step of communicating that decision to her through her lawyers only on 25 February 2016, which entailed an additional delay of two months in handling her request for assistance.
104That being said, the fact that the AECE, in breach of its duty to have regard for the welfare of its staff, did not reply with the necessary speed to the request for assistance pursuant to Article 24 of the Staff Regulations, while it may render the institution concerned liable for any damage caused to the applicant, cannot, in itself, affect the legality of the second decision refusing assistance under Article 24 of the Staff Regulations. Infringement of the ‘reasonable time’ principle can justify annulment of a decision taken at the end of an administrative procedure, such as the second decision refusing assistance, only where the undue delay is likely to have an effect on the actual substance of the decision adopted at the end of the administrative procedure (see, to that effect, order of 13 December 2000, SGA v Commission, C‑39/00 P, EU:C:2000:685, paragraph 44; judgments of 6 December 2012, Füller-Tomlinson v Parliament, T‑390/10 P, EU:T:2012:652, paragraph 116, and of 18 May 2009, Meister v OHIM, F‑138/06 and F‑37/08, EU:F:2009:48, paragraph 76 and the case-law cited), which is not the situation in the present case.
105Thus, in the present case, the AECE’s failure to act sufficiently quickly in handling the request for assistance admittedly constitutes an infringement of Article 24 of the Staff Regulations and, on that basis, must be taken into consideration when examining the claim for damages, but it does not, in itself, justify the annulment of the second decision refusing assistance.
106In those circumstances, the second plea must be rejected as in part unfounded and in part ineffective.
107In the light of the foregoing considerations and without there being any need to rule on the applicant’s claim that Parliament should be ordered to produce the draft report initially forwarded to the Quaestors, the Court upholds the applicant’s claim for annulment of the second decision refusing assistance, as supplemented by the decision rejecting the complaint, on account of the AECE’s error of assessment in the present case as to whether Ms M.’s behaviour constituted psychological harassment within the meaning of Article 12a of the Staff Regulations.
The claim for damages
108In her claim for damages, the applicant asks the Court to order the Parliament to compensate her for the non-material harm allegedly suffered as a result of the AECE’s disregard of its duty to provide assistance under Article 24 of the Staff Regulations, by reason, inter alia, of the excessive duration of the procedure, which kept her in a state of uncertainty and anxiety, prevented her from beginning her psychological healing process and deprived her of the assistance that she needed in order to bring legal proceedings before a national court against Ms M. That non-material harm is distinct from the illegality vitiating the second decision refusing assistance that is the subject of the first plea. Therefore, such non-material harm could not be compensated for by the annulment alone of the second decision refusing assistance.
109The Parliament contends that the claim for damages should be dismissed.
110At the outset, as regards compensation for the non-material harm allegedly suffered by the applicant as a result of the behaviour of Ms M. at issue, referred to by the applicant in her written pleadings, it must be borne in mind that, under the first paragraph of Article 24 of the Staff Regulations, the European Union is to assist any official or other member of staff ‘in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties’. Moreover, under the second paragraph of Article 24 of the Staff Regulations, the European Union ‘shall jointly and severally compensate the official for damage suffered in such cases, in so far as the official did not either intentionally or through grave negligence cause damage and has been unable to obtain compensation from the person who did cause it’.
111In that regard, the duty to provide assistance laid down in Article 24 of the Staff Regulations is concerned with the protection of officials and other members of staff, by their institution, against the acts of third parties, not against acts of the institution itself, the review of which falls under other provisions of the Staff Regulations (judgments of 17 December 1981, Bellardi-Ricci and Others v Commission, 178/80, EU:C:1981:310, paragraph 23, and of 9 September 2016, De Esteban Alonso v Commission, T‑557/15 P, not published, EU:T:2016:456, paragraph 45). That being said, for the purposes of that provision, other officials or other members of staff or Members of an EU institution, such as Ms M., can be regarded as third parties (see, to that effect, judgment of 14 June 1979, V. v Commission, 18/78, EU:C:1979:154, paragraph 15).
112Thus, in accordance with the second paragraph of Article 24 of the Staff Regulations, as regards the non-material harm allegedly suffered by the applicant as a result of Ms M.’s conduct, the applicant must in fact, as she has indicated, seek in the first place compensation for such damage by bringing an action for compensation before a national court, as it is clear that, pursuant to that provision of the Staff Regulations, it is only when such damage cannot be compensated for that the AECE can be required jointly and severally to pay compensation for the damage caused to the applicant by the conduct of a ‘third party’ for the purposes of that provision.
113Nonetheless, it should be noted that, in accordance with its duty to provide assistance, the AECE could already have been required to assist the applicant, inter alia financially, in seeking such compensation (see, to that effect, judgment of 12 December 2013, CH v Parliament, F‑129/12, EU:F:2013:203, paragraph 57), in the present circumstances, with a view to obtaining, by means of ‘assisted’ legal action, a declaration that the conduct affecting her, by reason of her position or duties, and which justified the request for assistance, was unlawful and entitled her to the award of compensation by a national court (see, to that effect, judgment of 9 September 2016, De Esteban Alonso v Commission, T‑557/15 P, not published, EU:T:2016:456, paragraph 42 and the case-law cited).
114Those points having been made, it must be recalled that, according to settled case-law, the annulment of an unlawful act, such as the second decision refusing assistance, may constitute, in itself, appropriate and, in principle, sufficient compensation for any non-material harm which that act may have caused. However, that is not the case where the applicant shows that he has sustained non-material harm that can be separated from the illegality justifying the annulment and that cannot be compensated for in full by that annulment (see, to that effect, judgments of 6 June 2006, Girardot v Commission, T‑10/02, EU:T:2006:148, paragraph 131; of 16 May 2017, CW v Parliament, T‑742/16 RENV, not published, EU:T:2017:338, paragraph 64; and of 19 May 2015, Brune v Commission, F‑59/14, EU:F:2015:50, paragraph 80).
115In the present case, the non-material harm alleged by the applicant is due, not to the error of assessment made by the AECE, which is the subject of the first plea for annulment of the second decision refusing assistance, but to the AECE’s disregard of its duty to provide assistance, laid down in Article 24 of the Staff Regulations, which is the subject of the second plea for annulment.
116In that regard, in the examination of the second plea, the Court found that the AECE had failed to fulfil its duty to provide assistance, inter alia, when it failed to act sufficiently quickly in dealing with the request for assistance, but that such illegality could not lead to the annulment of the second decision refusing assistance on that ground.
117In those circumstances, the Court finds that the non-material harm alleged by the applicant can be separated from the illegality, namely the error of assessment, justifying the annulment of the second decision refusing assistance, and that, in any event, the harm cannot be compensated for in full by that annulment.
118In the circumstances of the present case, in the light, inter alia, of the changes in the AECE’s position, which led to the case being referred for a second time to the ‘APA’ Special Advisory Committee, and the unreasonable period of over two years that the AECE took to deal with the request for assistance, which left the applicant in a state of uncertainty and prevented her from opening legal proceedings against Ms M. — or, at the very least, delayed the opening of such proceedings — the Court finds that a fair assessment is made of the non-material harm suffered by the applicant by quantifying it, ex aequo et bono and as claimed by the applicant, in the sum of EUR 10000.
119As regards the applicant’s claim that default interest at the base rate of the European Central Bank (ECB) should be paid in addition to damages, if awarded, the Court finds that that claim should be granted and, in the absence of any indication of the date from which such default interest should begin to run, that the date of delivery of the present judgment should be taken as the relevant date (see, to that effect, judgments of 16 May 2017, CW v Parliament, T‑742/16 RENV, not published, EU:T:2017:338, paragraph 67, and of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 127).
120In the light of all the foregoing considerations, the second decision refusing assistance must be annulled by reason of the error of assessment vitiating that decision, and the Parliament must be ordered to pay the applicant, in respect of the non-material harm suffered, the sum of EUR 10000, together with default interest from the date of delivery of the present judgment at the rate fixed by the ECB for its main refinancing operations.
Costs
121Under 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 Parliament has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
Operative part
On those grounds,THE GENERAL COURT (First Chamber)hereby:
1.Annuls the decision of the European Parliament of 30 June 2016 by which the authority empowered to conclude contracts of employment of that institution rejected the request for assistance submitted by Ms Michela Curto on 14 April 2014;
2.Orders the Parliament to pay Ms Curto, in respect of the non-material harm suffered, the sum of EUR 10000, together with default interest from the date of delivery of the present judgment at the rate fixed by the European Central Bank (ECB) for its main refinancing operations;
3.Orders the Parliament to pay the costs.
Delivered in open court in Luxembourg on 13 July 2018.
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