Article 41 - Right to good administration
Article 31 - Fair and just working conditions
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:
On those grounds, the Court (Second Chamber) hereby:
16) On 6 September 2016, the appellant 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 Fundamental Rights of the European Union (‘the Charter’), of the right to be heard and of the audi alteram partem rule, as well as 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.
...
21) In support of her claim for annulment, the appellant 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, namely that the procedure followed by the Advisory Committee was irregular and biased, 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.
38) The appellant puts forward three grounds in support of her appeal. The first alleges infringement of the right to be heard enshrined in Article 41(2)(a) of the Charter. The second alleges infringement of Article 41(1) of the Charter and of the General Court’s obligation to state reasons and distortion of the content of the file and its arguments. The third alleges infringement of Article 31(1) of the Charter, Article 12a(1) and (3) of the Staff Regulations and Article 24 of those regulations.
41) According to the appellant, as the alleged illegalities in paragraphs 83 to 85 of the judgment under appeal led the General Court to hold that the records of witness hearings did not have to be disclosed to her before she submitted her observations, the General Court infringed Article 41(2)(a) of the Charter and her right to be heard.
45) The Parliament argues, in the first place, that, under Article 41(2)(b) of the Charter, confidentiality constitutes a legitimate limit on the right to be heard.
50) In the fourth place, the Parliament contends that the appellant was placed in a position to properly exercise her right to be heard, in accordance with Article 41 of the Charter, on 1 April 2016, since she received, on that date, notification of the grounds on which the administration based its intention to reject her request for assistance. In that context, the Parliament observes that, according to the Courts of the European Union, as regards assistance for harassment, the person who made a request for assistance does not enjoy legal protection that is as broad as that granted in connection with the rights of the defence, but rather, in order for the right to good administration to be observed, enjoys the right to be heard, in accordance with Article 41(2)(a) of the Charter.
51) Therefore, a correct interpretation of Article 41 of the Charter means that the appellant is not entitled to receive all the documents drawn up in connection with the handling of her request for assistance, but only the reasons on which the administration based its intention to reject that request. It follows that the appellant cannot have access to the reports of the hearings in order to exercise her right to be heard.
53) By her first ground of appeal, the appellant complains, in essence, that the General Court infringed her right to be heard, guaranteed under Article 41(2)(a) of the Charter, in so far as it held that refusing to grant her access to the records of witness hearings drafted by the Advisory Committee, before the adoption of the decision at issue, was not contrary to that provision.
55) In the second place, as the General Court observed in paragraphs 73 and 74 of the judgment under appeal, the decision at issue constitutes an individual measure which concerns the appellant and adversely affects her, within the meaning of Article 41(2) of the Charter, since it rejected the request for assistance and, therefore, concluded that there had been no psychological harassment.
56) In the third place, it should be noted that, in a procedure such as that at issue, the alleged victim of harassment may rely on the right to be heard, in accordance with the principle of sound administration. Article 41 of the Charter, entitled ‘Right to good administration’, states, in paragraph 1, that every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the European Union.
69) Accordingly, as the Advocate General observed in point 76 of his Opinion, the General Court erred in law by failing to find that it was contrary to the requirements of Article 41 of the Charter that the appellant had not been given, at the very least, an anonymised summary of the statements of the various witnesses and was not heard on the subject of those statements, with the effect that she was not put in a position effectively to submit observations on their content before the Director-General for Personnel took the decision at issue, which adversely affected her.
73) In the present case, as is apparent from paragraph 69 above, the fact that the appellant was not given, at the very least, an anonymised summary of the statements of the various witnesses and was not heard on the subject of those statements, with the effect that she was not put in a position effectively to submit observations on their content before the Director-General for Personnel took the decision at issue, which adversely affected her, amounts to a breach of Article 41 of the Charter. As the Advocate General observed in points 121 to 123 of his Opinion, that failure as regards disclosure constitutes an irregularity that inevitably affected both the opinion of the Advisory Committee and the decision at issue. If the appellant had been given the opportunity to be properly heard, she might have persuaded the Director-General for Personnel that a different assessment of the facts and of the various contextual factors, which were decisive in that decision, was possible and that a different weight should be applied to them.
