31 March 2020 (*)

(Action for annulment — Civil service — Accredited parliamentary assistant — Special leave for the birth of children born via surrogacy — Answer to a request for information — No act adversely affecting an official — Inadmissibility)

In Case T‑505/19,

Grégory Merly,

residing in Brussels (Belgium), represented by T. Oeyen, lawyer,

applicant,

European Parliament,

represented by M. Windisch and C. González Argüelles, acting as Agents,

defendant,

APPLICATION under Article 270 TFEU seeking annulment of the alleged decision of the Parliament of 30 October 2018 refusing to grant the applicant special leave, equivalent to maternity leave or to the special leave to which adopted parents are entitled,

THE GENERAL COURT (Eighth Chamber),

composed of J. Svenningsen, President, C. Mac Eochaidh and J. Laitenberger (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Background to the dispute

The applicant, Mr Grégory Merly, worked at the European Parliament from 4 March 2016 until 2 July 2019 as an accredited parliamentary assistant. His husband is employed by the European Commission as a temporary agent.

In 2018, the applicant and his husband used the services of a surrogate mother in the United States of America in order to have children. They entered into a gestational surrogacy agreement with her and her partner on 18 September 2018. Oocytes from an anonymous donor were fertilised in vitro with sperm from both the applicant and his husband. An embryo fertilised with the applicant’s sperm and an embryo fertilised with his husband’s sperm were transferred to the uterus of the surrogate mother.

In September 2018, the applicant exchanged emails with the Parliament’s administration regarding his rights as a future parent of two children born via surrogacy. He asked, inter alia, by email of 19 September 2018, the Working Time Unit of the Parliament (‘the Working Time Unit’) for more information about his rights and leave entitlement as a future parent of a biological child and of a non-biological child born via surrogacy. Given that the response of the Working Time Unit of 25 September 2018 mentioned only the applicant’s right to be granted parental leave, the applicant replied on the same day that he considered that every couple, whether of the same sex or heterosexual, should be entitled to an equivalent period of leave. In addition, the applicant contacted, again on the same day, the Parliament’s Equality and Diversity Unit (‘the Equality and Diversity Unit’) concerning that response. The Equality and Diversity Unit confirmed the response and supplemented it, by email of 27 September 2018, and informed the applicant that his case, which set a precedent, had been discussed in a recent meeting of the Parliament’s High Level Group on Gender Equality and Diversity and the administration would follow it. The Equality and Diversity Unit also asked the applicant to be patient and to trust that it would remain committed to the principles of equal treatment and non-discrimination.

On 14 May 2018, the Commission’s human resources department responsible for leave had informed the applicant’s husband that, even though maternity leave or adoption leave did not apply to his situation, the Commission’s relevant authority could consider granting ad hoc special leave of 20 weeks, namely leave of a duration equivalent to maternity leave or adoption leave, under the same conditions as those applicable to special adoption leave.

On 30 October 2018, the applicant sent an email to the head of the Working Time and Childcare Facilities Unit of the Personnel Directorate-General of the Parliament (‘the head of the Working Time Unit’), the subject matter of which was ‘(surrogacy parenthood rights) request for information’. In that email the applicant stated, inter alia:

‘… I am contacting you in order to better understand what rights will be granted to me as a future parent of two children born via surrogacy (which involves a biological child and a non-biological child) …’

In addition, the applicant asked the head of the Working time Unit whether they could discuss his case over the phone or in person and he indicated that he was available to ‘set out [his] situation and find a solution that [would] make it possible to welcome those two children in the best conditions possible’.

In an email of that day (‘the contested act’), the head of the Working Time Unit answered as follows:

‘… Unless I am mistaken, you already contacted the Equality and Diversity Unit regarding this matter following the exchange with [the Working Time Unit] and my colleagues replied on 27/9.

I therefore provide you again with the information which you were given and confirm it.

As the biological father of one of the two children, you will be entitled to leave for the birth of a child of 10 days and to the various parental leave options (initial period of 6 months and extension for a further period of 6 months), as indicated by [the Working Time Unit] in [its] response.

In case you adopt the biological child of your spouse/partner, you will also be entitled to special leave of 10 days in accordance with Article 30(6) of the internal rules on leave management and the rules regarding parental leave apply in the same way to an adopted child.

Maternity leave is for its part reserved for pregnant women who have given birth, as the rules seek to protect the health of the pregnant woman during pregnancy and after childbirth. You are therefore not entitled to this type of leave.’

The pregnancy of the surrogate mother was confirmed on 7 November 2018.

By letter of 5 December 2018, the applicant lodged a complaint with the Secretary-General of the Parliament against the contested act. The applicant stated therein that that act infringed, first, the principle of uniform application of the texts by the EU institutions, since the Commission and the Committee of the Regions had granted special leave of 20 weeks to parents in situations comparable to that of the applicant, second, the principle of equal treatment, third, the principle of protection of the best interest of the child and, fourth, breach of the duty of care. Finally, the applicant requested the annulment of the contested act and the grant of special leave of 20 weeks for the child to be adopted, which he would be entitled to at least 6 weeks before the expected date of birth, thereby extending the date fixed for the termination of his employment contract to the end of the period of leave, as well as special leave of 10 days for the birth of the child of which he is the biological father and 2 days’ travel time.

It is apparent from an exchange of emails between the applicant’s husband and the Commission’s Human Resources department responsible for leave that the applicant’s husband was informed by his employer on 14 December 2018 that the ad hoc special leave of 20 weeks (see paragraph 4 above) could begin 6 weeks before the expected date of birth and, on 19 December 2018, that, in the event of the birth of two children, the ad hoc special leave would be of 24 weeks. Further, that department pointed out that it was necessary to provide, inter alia, written evidence from the applicant’s employer or institution stating that he was not entitled to compensatory leave other than the leave for birth of 10 days relating to the birth of the children.

By letter of 3 April 2019, notified to the applicant on 8 April 2019, the Secretary-General of the Parliament rejected the applicant’s complaint on the ground that it was manifestly inadmissible. In his opinion, the contested act did not constitute an act adversely affecting the applicant since the children at issue were not yet born and an act adversely affecting an individual should be based on the current situation of the person concerned. That email provided mere information which neither affected nor changed the applicant’s legal situation.

On 21 May 2019, the Superior court of Fulton County in the Atlanta judicial circuit in Georgia (United States) delivered a decision declaring that both the applicant and his husband must be declared the legal parents of the two children immediately upon the birth.

By email of 16 June 2019, the applicant informed the Working Time Unit that the birth of the two children was expected to take place on that day and he and his husband would immediately be the legal parents of both children. Contrary to his previous thinking and what he had told the Parliament, the adoption of the child of which he is not the father is therefore not necessary. He also stated that he was reiterating his request to be granted special leave while making it clear that that request sought to safeguard his rights to obtain leave for the birth of a child and was without prejudice to any action he might decide to take against the contested act. He added that he ‘[would] activate via Streamline [(the Parliament’s leave management system)] the 20 days of leave [to which he was] entitled [for] a multiple birth and given that [he] will be the legal father of both children’.

The children were born on 16 June 2019 in the State of Georgia in the United States. After verifying the birth certificates, the Parliament’s leave department validated special leave for birth following the request made by the applicant in the Streamline system on 14 June 2019, namely leave as from 16 June until 2 July 2019, the date of the end of his employment contract.

Procedure and forms of order sought

By application lodged at the Court Registry on 12 July 2019, the applicant brought this action, in which he claims that the Court should:

–annul the contested act; and

–order the Parliament to pay the costs.

By separate document lodged at the Court Registry on 2 October 2019, the Parliament raised a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court. It contends that the Court should:

–dismiss the application as manifestly inadmissible in its entirety;

–order the applicant to pay the costs in their entirety.

By application lodged at the Court Registry on 15 November 2019, the applicant submitted his observations on that plea of inadmissibility and claimed that the Court should:

–reject the Parliament’s plea of inadmissibility and declare the action admissible in its entirety;

–in the alternative, join the judicial review of admissibility to the consideration of the substance of the case;

–postpone the decision as to the allocation of costs until a final decision is taken on the substance of the case or, in the alternative, order each party to pay its costs pursuant to Article 135 of the Rules of Procedure.

Law

Under Article 130(1) and (7) of the Rules of Procedure, the Court may, if the defendant so requests, rule on the question of inadmissibility without going to the substance of the case.

In the present case, the Court considers that it has sufficient information from the material in the file and has decided to give a decision on the action without taking further steps in the proceedings.

The Parliament has raised a plea of inadmissibility in support of which it relies on three grounds, alleging, first, the absence of a challengeable act, second, failure to comply with the requirements laid down in Article 76(d) of the Rules of Procedure and, third, failure to observe the obligatory pre-litigation procedure laid down in Articles 90 and 91 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).

By its first ground of inadmissibility, the Parliament contends that the action is inadmissible in so far as it is directed against the contested act on the ground of the absence of a challengeable act.

First of all, the Parliament contends that the contested act does not constitute a decision. It submits that the applicant, in his email of 30 October 2018, did not submit a request for leave, which is a necessary step if the applicant wished the Parliament to adopt a decision concerning him. The applicant, contrary to the internal rules on leave management, did not introduce his request in Streamline, nor did he indicate the type of leave requested or the exact planned dates of that leave or provide supporting documents. In the Parliament’s opinion, the applicant merely requested information. The contested act merely provides certain information regarding leave, in response to that request. The Parliament adds that, in the absence of a request for leave submitted by the applicant, it was not under an obligation to take a decision, which is why the present case cannot be regarded as a failure to take a decision.

Further, the Parliament maintains that the contested act did not adversely affect the applicant. It considers that that email does not and cannot constitute the Parliament’s definitive position, since, on 30 October 2018, the Parliament did not have all the necessary information. It adds that the contested act did not produce binding legal effects.

The applicant submits that his action against the contested act is admissible.

First, the applicant claims that his email of 30 October 2018 to the head of the Working Time Unit was a request for special leave justified by his specific situation. Given that the applicable rules do not provide for special leave for the parents of children born via surrogacy such as the applicant, he is of the opinion that he could not submit his request in Streamline and he did not know what type of leave to request or which documents he had to provide.

Further, the applicant maintains that he correctly considered the contested act to be the Parliament’s definitive position on the leave to which he was entitled, given the position of the author of the email and the previous exchanges with the Parliament’s administration.

Finally, the applicant submits that the contested act changed his legal position because he relied on that act during the planning process for the children’s birth.

In that context, it must first be borne in mind that it is settled case-law that the admissibility of claims for annulment deriving from the employment relationship between an official and his or her institution must be examined in the light of the provisions of Articles 90 and 91 of the Staff Regulations. In that regard, the existence of an act adversely affecting an official within the meaning of Articles 90(2) and 91(1) of the Staff Regulations is an indispensable condition for the admissibility of any action for annulment brought by an official against the institution which employs him or her (judgment of 14 September 2011, Marcuccio v Commission, T‑236/02, EU:T:2011:465, paragraph 125, and order of 26 June 2018, Kerstens v Commission, T‑757/17, not published, EU:T:2018:391, paragraph 24). Only measures which produce binding legal effects capable of directly and immediately affecting the applicant’s interests by bringing about a significant change in his or her legal position constitute acts adversely affecting him or her within the meaning of those provisions (see judgment of 14 September 2011, Marcuccio v Commission, T‑236/02, EU:T:2011:465, paragraph 125 and the case-law cited).

Moreover, the mere manifestation of an intention to take a specific decision in the future is not capable of creating corresponding rights or obligations on the part of the official or officials concerned. In order for an act to be considered an act adversely affecting an individual within the meaning of Article 90(2) of the Staff Regulations, it must have been expressly adopted by the appointing authority or, as the case may be, the authority authorised to conclude contracts of employment (‘AECE’) (see, to that effect, judgment of 16 March 1993, Blackman v Parliament, T‑33/89 and T‑74/89, EU:T:1993:21, paragraph 27 and the case-law cited). Furthermore, an action is inadmissible if it is directed against an act preparatory to a decision, in particular against an act coming within the category of administrative information, on the ground that it refers to the subsequent adoption of a decision or does not emanate from an appointing authority or, as the case may be, an AECE, as required by the Staff Regulations for the adoption of a decision (see, to that effect, order of 14 December 1989, Teissonnière v Commission, T‑119/89, EU:T:1989:7, paragraph 21 and the case-law cited).

Last, under Article 90(1) of the Staff Regulations, applicable by analogy to accredited parliamentary assistants pursuant to Article 138 of the Conditions of Employment of Other Servants of the European Union, a request may be made to the AECE by any person to whom the Staff Regulations apply. It is apparent from the case-law that a request based on Article 90(1) of the Staff Regulations must specify its purpose sufficiently clearly for the authority to be able to take a decision in full knowledge of the facts and, in the absence of a specific request for a decision, there can be no request within the meaning of that provision (see judgment of 20 January 2011, Strack v Commission, F‑132/07, EU:F:2011:4, paragraph 69 and the case-law cited). A request cannot achieve its aim if the authority seised is not sufficiently informed of its purpose (judgment of 20 January 2011, Strack v Commission

, F‑132/07, EU:F:2011:4, paragraph 69). The same requirements apply to any request for special leave for the purposes of the second paragraph of Article 57 of the Staff Regulations, applicable by analogy to accredited parliamentary assistants pursuant to Article 131(5) of the Conditions of Employment of Other Servants of the European Union, which provides that the grant of special leave requires prior application by the accredited parliamentary assistant concerned.

32In order to determine whether the contested act constitutes an act adversely affecting him, in the first place, it is appropriate to examine whether the applicant’s email of 30 October 2018 constitutes such an application pursuant to which the Parliament took or should have taken a decision changing the applicant’s legal situation.

33In that regard, it must be noted that, in the applicant’s email of 30 October 2018, the subject matter of which was ‘(surrogacy parenthood rights) request for information’, the applicant merely expressed his wish ‘to better understand what rights will be granted to [him] as a future parent of two children born via surrogacy (which involves a biological child and a non-biological child)’. Moreover, he asked the head of the Working Time Unit that they discuss his case over the phone or in person and he indicated to her his availability to ‘set out [his] situation and find a solution that [would] make it possible to welcome those two children in the best conditions possible’. Therefore, that email contains only questions raised by the applicant with a view to obtaining clarifications, as well as an attempt to initiate a discussion and not a request seeking adoption by the Parliament’s AECE of a decision granting or refusing him one of the types of leave listed in Article 6 of Annex V to the Staff Regulations or another type of leave.

34In addition, the email at issue did not indicate that the Parliament had to take a decision and did not state what the purpose or content of such a decision should be, namely, if the applicant wished to obtain special leave, the type of leave, its duration or the dates sought. It is admittedly true that, in his earlier exchanges with the Parliament, the applicant had made it clear that he considered that his husband and himself should be entitled to a period of paid leave equivalent to the period which a mother and a father could request for maternity and paternity leave, respectively. Nevertheless, the applicant, by referring to those earlier exchanges in his email of 30 October 2018, was merely suggesting that the discussion to find a solution continue and did not ask the Parliament to grant him leave, of whatever type.

35It follows that the applicant’s email of 30 October 2018 does not constitute an application within the meaning of the second paragraph of Article 57 or a request within the meaning of Article 90(1) of the Staff Regulations.

36That finding is supported by the fact that on 14 June 2019, namely over seven months later, the applicant submitted a request for leave for birth as from 16 June until 2 July 2019. The applicant himself therefore considered it necessary to submit a request in order for the Parliament to grant him leave for birth, even though the possibility of applying for leave for birth was part of the information provided in the contested act in response to the applicant’s email of 30 October 2018. The applicant now maintains that that email was already a request requiring a decision.

37In the second place, it is necessary to examine whether the contested act, even in the absence of a request submitted by the applicant and a corresponding obligation on the Parliament to take a decision concerning him, produced binding legal effects such as to affect the applicant’s interests by changing his legal position.

38First of all, it must be noted that the head of the Working Time Unit had only provided the information requested by the applicant, namely the fact that he would be entitled to leave of 10 days for the birth of the biological child, special leave of 10 days for the non-biological child in the event of adoption and parental leave. Nevertheless, he would not be entitled to maternity leave because that type of leave is ‘restricted to pregnant women who have given birth’. That information is only general information, which does not change the applicant’s legal situation, as explained unequivocally by the Parliament to the applicant in the decision of the Secretary-General of the Parliament of 3 April 2019 rejecting the applicant’s complaint.

39In addition, in the absence of a request by the applicant asking the Parliament to take a decision and of the information necessary for that purpose (see paragraphs 33 and 34 above), it must be held that the Parliament had no reason to take, on its own initiative, a decision on the applicant’s individual situation.

40Moreover, the Parliament would not have been in a position to take a decision on the future and uncertain individual situation of the applicant. On 30 October 2018, the facts on which the Parliament should have based a decision on the applicant’s special leave for the birth of the two children born via surrogacy were not yet available. On that date, the children were not yet born, the surrogate mother’s pregnancy was not even confirmed and the legal situation of the children, after their birth in the United States, was not clear. As regards, in particular, the children’s legal situation, the applicant learnt only in May 2019, that is to say more than six months later, that he and his husband would become the legal parents of the two children upon their birth and the adoption of the non-biological child by the applicant would not be necessary. Similarly, in the light of Article 6 of Annex V to the Staff Regulations and Article 30(3) of the Parliament’s internal rules on leave management, concerning leave for adoption of a child, according to which each adopted child gives entitlement to a single period of special leave which may be shared between the parents, information relating to possible leave for the applicant’s husband, employed by the Commission, may have been necessary for the Parliament but was not mentioned by the applicant and was not yet final on 30 October 2018.

41The applicant’s argument that the Parliament should have asked the applicant to provide it with additional information in order to be able to take a decision on the applicant’s leave must be rejected since the Parliament had not been asked by the applicant to take such a decision and the necessary information in that regard was not available at that time.

42The fact that the contested act is a mere response to a request for information is not called into question by the fact that the applicant had several earlier exchanges with the administration and that the contested act confirms the information provided during those earlier exchanges. The fact that the Parliament confirmed in the contested act the information provided earlier merely shows that the Parliament thought that that information was still correct. That did not allow, contrary to what the applicant claims, the Parliament’s position therein to be considered definitive. Furthermore, the applicant was aware that the examination of his case as a precedent and the discussions relating thereto were ongoing, given that the Equality and Diversity Unit had informed him accordingly on 27 September 2018.

43As regards the argument put forward by the applicant that he subsequently relied on the information provided in the contested act to plan the birth of his children, which he alleges changed his situation, it must be noted that that change, even were it established, was caused by the applicant himself, on his own initiative, and not by the contested act. Consequently, that argument does not demonstrate that the contested act produced binding legal effects on the applicant.

44Finally, the Court notes that the applicant submitted, on 14 June 2019, a request for leave for birth of a child as from 16 June until 2 July 2019. This shows that the applicant himself did not consider that the contested act had already granted him that type of leave, even though the possibility of introducing leave for birth was part of the information provided in the contested act. Therefore, the applicant’s argument that the other information provided in the contested act on his future and uncertain situation already constituted a definitive refusal to grant him special leave equivalent to adoption or maternity leave cannot be accepted.

45It follows from the foregoing that the contested act cannot be regarded as having directly and immediately affected the applicant’s interests by bringing about a distinct change in his legal position.

46It follows that the action must be dismissed as inadmissible on the ground that there is no act adversely affecting the applicant and, therefore, the plea of inadmissibility raised by the Parliament must be upheld, without it being necessary to examine the other two grounds of inadmissibility raised by the Parliament.

Costs

47Under 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. However, according to Article 135 of the Rules of Procedure, on the one hand, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his or her own costs, or even that he or she is not to be ordered to pay any costs. On the other hand, the Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if he or she has made the opposite party incur costs which the Court holds to be unreasonable or vexatious.

48Contrary to what the applicant claims, the alleged uncertainty created by the absence of clear provisions concerning the possibility of obtaining special leave for the parents of children born via surrogacy cannot justify in the circumstances of this case to order each party to bear its own costs. The inadmissibility of the present action is not linked to that alleged uncertainty but is the consequence of the absence of any act adversely affecting the applicant. In those circumstances, it is not appropriate to order the Parliament to bear its own costs, especially since the Parliament, in its decision of 3 April 2019 rejecting the applicant’s complaint, had informed him that the contested act did not constitute an act adversely affecting him.

Consequently, since the applicant has been unsuccessful, he must be ordered to pay the costs, as applied for by the Parliament.

On those grounds,

hereby orders:

1.The action is dismissed as inadmissible.

2.Mr Grégory Merly shall pay the costs.

Luxembourg, 31 March 2020.

J. Svenningsen

Registrar

President

Language of the case: English.