Article 31 - Fair and just working conditions
Article 41 - Right to good administration
Key facts of the case:
Appeal — Civil service — European Parliament — Member of contract staff — Articles 12a and 24 of the Staff Regulations of Officials of the European Union — Psychological harassment — Request for assistance — Right to be heard — Rejection of a request for assistance — Article 41 of the Charter of Fundamental Rights of the European Union — Scope of judicial review.
Outcome of the case:
In the light of the above considerations, I propose that the Court:
12) By letter of 8 December 2015, the Director-General for Personnel informed HF of his intention to conclude that her request for assistance was unfounded, further to, inter alia, the Advisory Committee’s hearing of the submissions of the head of unit and of 14 other officials and servants of the Audiovisual Unit. In accordance with Article 41(2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’), he invited HF to submit her observations.
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17) On 6 September 2016, HF lodged a complaint against the decision at issue under Article 90(2) of the Staff Regulations. In support of that complaint, she pleaded infringement of the rights of the defence, of Article 41 of the Charter, of the right to be heard and of the audi alteram partem rule, irregularities in the procedure followed by the Advisory Committee, manifest errors of assessment, infringement of Articles 12a and 24 of the Staff Regulations and infringement of the obligation to provide assistance and of the duty of care.
22) In support of her claim for annulment, HF relied on three pleas in law; in the first plea she alleged infringement of the rights of the defence, of Article 41 of the Charter, of the right to be heard and of the audi alteram partem rule, in the second, procedural errors, in that the procedure followed by the Advisory Committee had certain irregularities, and, in the third, manifest errors of assessment, infringement of the obligation to provide assistance and the duty of care, and infringement of Articles 12a and 24 of the Staff Regulations.
30) There are two appeals before the Court. In support of the main appeal, HF relies on three grounds of appeal, of which only the first and the third will be covered by this Opinion, in accordance with a request from the Court. Those grounds allege, respectively, infringement by the General Court of the right to be heard under Article 41 of the Charter and a failure by that court correctly to assess the facts.
45) By her first ground of appeal, HF argues that the General Court erred in law when it found in paragraph 87 of the judgment under appeal that ‘the AECE did not infringe the right to be heard, as referred to in Article 41 of the [Charter], when, in the present case, it refused to disclose the records of the witness hearings to the applicant at the pre-litigation stage.’ HF claims that, by doing so, the General Court failed to have due regard for Article 41(2) of the Charter and Articles 12a(1) and 24 of the Staff Regulations. Further, she argues that the General Court contradicted itself and has not properly stated the reasons for its position.
54) I note that the right of every person to be heard is laid down in Article 41 of the Charter as part of the right to good administration. In addition to the right to be heard, ( 10 ) the right to good administration includes, inter alia, the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality, ( 11 ) and the obligation of the administration to give reasons for its decisions. ( 12 )
65) Article 41(2)(b) of the Charter, which is linked to the right to be heard, guarantees the right of every person to have access to his or her file, while nevertheless respecting the legitimate interests of confidentiality and business secrecy.
76) Consequently, in my opinion the General Court erred in law when it found in paragraph 87 of the judgment under appeal that the AECE did not infringe the right to be heard, as referred to in Article 41 of the Charter, when, in the present case, it refused to disclose the records of the witness hearings to HF at the pre-litigation stage. As the decision rejecting HF’s request for assistance adversely affects her, I take the view that the evidence relied on by the Parliament when taking that decision — namely witness hearings — should have been disclosed to HF, at least in an anonymised format in the form of a summary, so that her position regarding that evidence could be properly heard before the Parliament took its decision. That error must be regarded as possibly having had an effect on the decision at issue.
80) By her third ground of appeal, HF argues that the General Court infringed Article 12a(1) and (3) and Article 24 of the Staff Regulations, and Article 31(1) of the Charter when it found, in paragraphs 158, 164 and 166 of the judgment under appeal, that the conduct of the head of unit was not improper and that the Parliament was entitled to reject her request for assistance and had not made an error of assessment. She alleges that the General Court contradicted itself and made assessments that run counter to its own case-law.
100) By her second argument, HF contends that the General Court erred when it took into account the ‘context’ of the unit in paragraphs 143, 144, 158 and 159 of the judgment under appeal, despite harassment being unconditionally prohibited, regardless of the context. By taking that ‘context’ into account, while recognising that the conduct of the alleged harasser was at the very least inappropriate, the General Court must have infringed Article 12a(3) of the Staff Regulations and Article 31 of the Charter.
