Provisional text

11 September 2024 (*)

( Civil service – Accredited parliamentary assistants – Termination of service – Fixed-term contract – Non-renewal – Status of informant – Articles 22a to 22c of the Staff Regulations – Protective measures – Confidentiality – Non-material damage )

In Case T‑793/22,

TU, represented by N. de Montigny, lawyer,

applicant,

European Parliament, represented by C. González Argüelles, I. Lázaro Betancor and L. Darie, acting as Agents,

defendant,

THE GENERAL COURT (Fourth Chamber, Extended Composition),

composed of R. da Silva Passos, President, S. Gervasoni, N. Półtorak, I. Reine and T. Pynnä (Rapporteur), Judges,

Registrar: H. Eriksson, Administrator,

having regard to the written part of the procedure, in particular:

– the production by the applicant of new evidence lodged at the Registry of the General Court on 5 December 2023,

– the Parliament’s observations of 21 December 2023 on that new evidence,

– the parties’ answers to the written questions put by the Court of 27 November 2023 lodged at the Registry of the General Court on 19 December 2023,

further to the hearing on 18 January 2024,

gives the following

1.1 By his action under Article 270 TFEU, the applicant, TU, seeks, first, annulment of the decision of the European Parliament of 22 February 2022 not to renew his contract as an accredited parliamentary assistant (‘APA’) (‘the decision of 22 February 2022) and of the implied decision refusing, in response to his request submitted on 10 January 2022 to be recognised as a whistle-blower and protected pursuant to Articles 22a to 22c of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), to recognise his status as a whistle-blower and to adopt other protective measures in addition to the measure discharging him from his duties (‘the implied decision’) and, second, compensation for the harm, assessed at EUR 200 000, which he suffered as a result of the failure to comply with Articles 22a to 22c of the Staff Regulations and with the internal rules relating to the implementation of Article 22c of the Staff Regulations (‘the internal rules’).

2.2 The applicant was recruited as an APA within the grouping of [confidential] Members (‘the grouping’) to assist the Member [confidential] (‘the Member in question’) for a period from 26 August 2019 to 28 February 2022.

3.3 Although he was tasked with assisting the Member in question within that grouping, his superior and the Member responsible within the grouping was Ms A (‘the Member responsible’), who had been chosen as their representative by the Members of the grouping pursuant to Article 1(5) of the implementing measures for Title VII of the Conditions of Employment of Other Servants of the European Union, which were adopted by a decision of the Bureau of the Parliament of 14 April 2014 and amended by decisions of the Bureau of the Parliament of 2 October 2017 and 5 July 2021 (‘the implementing measures for Title VII of the CEOS’).

4.4 By email of 12 July 2021, the applicant requested assistance and protection, pursuant to Article 24 of the Staff Regulations, in relation to incidences of harassment which he claimed to have suffered at the hands of the Member in question. In that email, the applicant also stated that he wanted to protect the financial interests of the European Union by providing, in that request, information about financial irregularities allegedly committed by the Member in question.

5.5 On 20 July 2021, the Director-General of the Directorate-General for Personnel (‘the Director-General’), the competent authority for handling requests for assistance submitted on the basis of Article 24 of the Staff Regulations within the Parliament, adopted an interim protective measure intended to place the applicant under the responsibility of the chair of the [confidential] delegation and member of the grouping, Mr B (respectively, ‘the delegation’ and the ‘chair of the delegation’), with effect from 22 July 2021 (‘the transfer measure’).

6.6 On 23 August 2021, the European Anti-Fraud Office (OLAF) informed the Parliament that it had received certain information in connection with a request for assistance under Article 24 of the Staff Regulations submitted by the applicant, that it intended to open an investigation and that that investigation was of a confidential nature.

7.7 By email of 3 September 2021, OLAF informed the Parliament that reports of financial irregularities had been made to it by the applicant.

8.8 On 4 November 2021, the applicant submitted his supplemented request for assistance, adding to it, on 8 November, a new list of annexes together with supporting evidence. Those documents also included an update to the reports of alleged financial irregularities committed by the Member in question and evidence supporting those reports.

9.9 On 10 January 2022, the applicant complained to the Director-General about the alleged retaliation suffered by him at the hands of the leadership of the delegation further to reports of financial irregularities and complaints of harassment and sought protection on the basis of his status as a whistle-blower. In that letter, the applicant requested that he be discharged from his duties within the delegation and transferred to any other post within the Parliament. He also reported that he had not been assigned any other duties and had been replaced by a new employee, whilst he was preparing his request for renewal of his contract, and asked the Parliament to consider extending his contract so as to allow him to continue to cooperate with that institution and with OLAF in the ongoing investigations, whilst being fully protected.

10.10 On 13 January 2022, the Director-General informed the applicant by email that he was discharging the applicant of his duties until the end of his contract (‘the discharge measure’). The chair of the delegation was copied into that email.

11.11 On 24 January 2022, the applicant submitted a request for renewal of his contract to the Member responsible, who replied to him, on 4 February 2022, stating that the Member in question had not requested that renewal and that no other Member of the grouping had expressed an intention to hire the applicant as an APA.

12.12 On 27 January 2022, the applicant resubmitted his request for renewal of his contract to a head of unit within the Directorate-General for Personnel, the authority responsible for the recruitment of APAs, explaining his particular situation to her.

13.13 On 3 February 2022, the authority empowered to conclude contracts of employment at the Parliament (‘the AECE’) heard the applicant, who sent to that authority, on 17 February 2022, supplementary written observations.

14.14 On 22 February 2022, the AECE took the decision not to renew the applicant’s contract on the ground that Articles 22a to 22c of the Staff Regulations did not allow for derogations from the provisions of the Staff Regulation or those of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) which would require an APA contract to be continued beyond its term or a new contract of a different kind to be concluded within the Parliament.

15.15 On 28 February 2022, the applicant complained to OLAF about the retaliatory acts which he claimed to have suffered. That same day, he also requested that the Secretary-General and Mr C, the person responsible for his case within the Office of the Secretary-General, resume contact with him in connection with his request of 10 January 2022 to be recognised as a whistle-blower, protected under Articles 22a to 22c of the Staff Regulation and compensated for the harm suffered as a result of the disclosure of his status as a whistle-blower.

16.16 On 13 April 2022, OLAF closed its investigation into the financial irregularities, considering that such investigation was a matter for the European Public Prosecutor’s Office (‘the EPPO’). On 4 June 2022, the EPPO opened an investigation in that regard; that investigation was still ongoing when the present action was brought and the hearing was held.

17.17 By email of 20 May 2022, the applicant’s counsel lodged a complaint pursuant to Article 90(2) of the Staff Regulations, seeking the annulment of the decision of 22 February 2022 and of the implied decision, and compensation in the amount of EUR 200 000.

18.18 By decision of 13 September 2022, the applicant’s complaint was rejected by the Secretary-General. With regard to the applicant’s request of 10 January 2022, the Secretary-General explained that status as a whistle-blower was acquired once the conditions set out in Article 22a(1) of the Staff Regulations were met, without the administration being required to adopt an explicit decision in that regard. He pointed out that the applicant had been assisted by Mr C and that a protective measure had been adopted by the Director-General in the form of a measure discharging the applicant from his duties. As regards the decision of 22 February 2022, the Secretary-General confirmed the position taken by the AECE, namely that neither the protection afforded to whistle-blowers under Articles 22a to 22c of the Staff Regulations nor the duty to have regard to the welfare of staff ‘can require the AECE to act in breach of the applicable rules’, in this case those governing the hiring of APAs. The Secretary-General therefore took the view that the AECE had rightly informed the applicant that the protection afforded by those articles did not grant him a right to a ‘renewal or to any employment whatsoever within the Parliament’.

19.19 As for the applicant’s claims for compensation, the Parliament took the view that they ought to be dismissed as unfounded, in particular because there had been no misconduct in relation to the decision of 22 February 2022, the discharge measure or the alleged breach of the duty of confidentiality. In addition, the Parliament contested the existence of a causal link between the latter duty and the alleged harm suffered by the applicant.

Forms of order sought

20.20 The applicant claims that the Court should:

– annul the decision of 22 February 2022;

– annul the implied decision;

– annul, in so far as is necessary, the decision of 13 September 2022 rejecting his complaint;

– declare the Parliament guilty of infringement of the rules applicable to the status of a whistle-blower and of breach of the protection conferred by that status;

– order the Parliament to pay to him the sum of EUR 200 000 by way of damages for the harm suffered as a result of non-compliance with Articles 22a to 22c of the Staff Regulations and the internal rules;

– order the Parliament to pay the costs or, in the alternative, if the action were to be dismissed, order it to pay its own costs.

21.21 The applicant also claims that the Court should, in so far as is necessary, put questions to OLAF, pursuant to Article 89 of the Rules of Procedure of the General Court, about how the provisions applicable to whistle-blowers are to be implemented.

22.22 The Parliament contends that the Court should:

– dismiss the action as partially inadmissible and partially unfounded and, in any case, as unfounded;

– order the applicant to pay the costs.

Law

The claims for a declaration

23.23 By his fifth head of claim, the applicant claims that the Court should declare the Parliament guilty of infringement of the rules applicable to the status of a whistle-blower and of breach of the protection conferred by that status. However, as is clear from settled case-law, it is not for the Court, in the context of its review of legality, to make statements of law (orders of 9 November 2011, ClientEarth and Others v Commission, T‑449/10, not published, EU:T:2011:647, paragraph 26, and of 5 July 2017, EEB v Commission, T‑448/15, not published, EU:T:2017:503, paragraph 40). It follows that the claims seeking a statement of law must be dismissed.

The claims for annulment

The subject matter of the claims for annulment

24.24 In the application, firstly, the applicant raises an independent plea in law concerning the pre-litigation procedure and non-compliance with Article 22c of the Staff Regulations.

25.25 Second, the applicant raises a number of separate pleas in law which are directed against the implied decision.

26.26 Third, the applicant relies on two separate pleas in law challenging the decision of 22 February 2022.

27.27 It follows that the claims for annulment concern, first, the implied decision, second, the decision of 22 February 2022 and, third, in so far as is necessary, the decision of 13 September 2022 rejecting the applicant’s complaint. By that complaint, the applicant had sought the annulment of the implied decision and of the decision of 22 February 2022, as well as compensation.

28.28 According 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 judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 63 and the case-law cited). A decision which purely and simply rejects a complaint, whether it be express or implied, only confirms the act or failure to act to which the complainant takes exception and is not, in itself, a decision which may be challenged (see judgment of 12 September 2019, XI v Commission, T‑528/18, not published, EU:T:2019:594, paragraph 20 and the case-law cited).

29.29 However, in view of the evolving nature of the pre-litigation procedure, the statement of grounds included in the decision rejecting the complaint will have to be taken into consideration in order to examine the legality of the decision adversely affecting the applicant (see, to that effect, judgment of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraphs 55 to 59).

30.30 In the present case, since the decision of 13 September 2022 rejecting the applicant’s complaint merely confirms the implied decision and the decision of 22 February 2022 stating grounds in support of the latter two decisions, it must be observed that the claims for annulment brought against the decision of 13 September 2022 rejecting the applicant’s complaint lack any independent content, and that there is therefore no need to give a specific ruling on them. However, the statement of reasons contained in the decision rejecting the complaint must be taken into consideration when examining the legality of the implied decision and of the decision of 22 February 2022.

31.31 It is appropriate, in the first place, to examine the pleas in law raised by the applicant in support of his third head of claim seeking the annulment of the implied decision.

The legality of the implied decision

32.32 In his request of 10 January 2022, the applicant sought, first, recognition of his status as a whistle-blower and, second, the protection and assistance related to that status.

33.33 The applicant puts forward three pleas in law in support of that head of claim. By his first plea, he alleges infringement of the protection rules connected with his status as a whistle-blower. By his second plea, he relies on an infringement of the internal rules, the Parliament’s unlawful interpretation of those rules and the inadequacy and insufficiency of the rules, assuming that they are to be interpreted in the manner proposed by the Parliament, such that APAs are prevented from enjoying that protection. Finally, by his third plea, the applicant relies on the breach of confidentiality and of the protection of his identity as a whistle-blower.

– The first plea, alleging infringement of the protection rules connected with the applicant’s status as a whistle-blower

34.34 The applicant raises two parts to the plea, based, first, on the submission of a request pursuant to Article 22a of the Staff Regulations with a view to being recognised as a whistle-blower and protected on that basis and, second, on the improper conduct of the procedure set out in Articles 22a to 22c of the Staff Regulations concerned with the protection afforded to whistle-blowers and the infringement of Article 3 of the internal rules.

(1) The arguments of the parties relating to the first part of the first plea, based on the applicant’s submission of a request pursuant to Article 22a of the Staff Regulations for recognition of his status as a whistle-blower and protection on that basis

35.35 The applicant claims that, on 10 January 2022, he submitted to the Director-General a request under Article 22a of the Staff Regulations, by which he asked to be recognised as a whistle-blower and to be granted the protection arising from that status. The applicant complained of suffering retaliation from the leadership of the delegation because he had submitted a request for assistance and protection against the Member in question. Furthermore, he requested the Parliament’s assistance in the procedure for renewal of his contract.

36.36 On the same day, he was informed that the person responsible for handling his request was Mr C, a member of the Office of the Secretary-General. It was suggested to the applicant that he be relieved of his duties, a measure which he did not oppose. The applicant subsequently met with Mr C, on 17 February 2022, but a decision was not taken regarding his request. He has never received any communication from the AECE regarding his status as a whistle-blower or as to whether an investigation had been launched into his claims of retaliation. All this supports his view that the Parliament failed to respond in a timely manner to his request under Article 22a of the Staff Regulations.

37.37 In the reply, the applicant states that the discharge measure was inconsistent with Article 4 of the internal rules and that it had adverse effects for him in the context of his request for a contract renewal. He did not contest that measure because, if it had gone hand in hand with effective protection, he would have had no interest in contesting it. Thus, in his complaint, he pointed out that it was the only measure adopted further to his submission of a request for assistance on 10 January 2022, that it was justified in the context of handling his complaint of harassment and that it did not exhaust the obligations to provide protection arising from his status as a whistle-blower. The fact that, on 28 February 2022, he complained that he had not been protected against the main retaliatory action taken against him by the grouping, that is, the non-renewal of his contract, proves that due account was not taken of his status as a whistle-blower.

38.38 The Parliament’s view, the distinction drawn by the applicant between, on the one hand, the provision of protection against retaliation pursuant to Article 24 of the Staff Regulations and, on the other hand, the provision of protection based on his status as a whistle-blower under Article 22a of the Staff Regulations cannot succeed.

39.39 According to the Parliament, the applicant’s request of 10 January 2022 must be regarded as a new request for assistance concerning the alleged retaliation by the leadership of the delegation. The adoption of the protective measures for whistle-blowers referred to in Article 4 of the internal rules falls with the scope of Article 24 of the Staff Regulations, which establishes the institution’s general obligation to provide assistance and which is a matter for the Director-General for Personnel.

40.40 Thus, when a request for assistance was brought before him on account of alleged retaliation suffered further to the reports made pursuant to Article 22a of the Staff Regulations, the Director-General adopted, in the light of the measures set out in Article 4 of the internal rules, the discharge measure, with the applicant’s consent, in order to protect the applicant based on his status as a whistle-blower.

41.41 Lastly, the responsibility for replying to the applicant’s request for protection does in fact fall to the Director-General and not to the member of the Office of the Secretary-General, who is responsible for the relations with OLAF and has only the power to provide advice and assistance in relation to reports of serious irregularities pursuant to Article 3 of the internal rules. Furthermore, the member of the Office worked together with the Director-General’s advisors to find the best way of protecting the applicant based on his status as a whistle-blower.

42.42 The Parliament therefore takes the view that the applicant’s request for protection based on his status as a whistle-blower of 10 January 2022 did in fact receive a response from the competent authority, and that there was therefore no implied decision rejecting that request.

43.43 In the rejoinder, the Parliament explains that the purpose of the discharge measure was to protect the applicant from the alleged retaliation by the leadership of the delegation, on account both of the applicant’s reports of financial irregularities pursuant to Article 22a of the Staff Regulations and of his complaints of harassment.

44.44 The Parliament contends that the applicant cannot argue that he was unaware that the discharge measure was the only measure adopted on the basis of his status as a whistle-blower. He was informed that there was no other conceivable measure to protect him on that basis and that the renewal of his contract, on the AECE’s initiative, was not possible. Moreover, even assuming that the applicant became aware of the adverse effects of the discharge measure only once the decision not to renew his contract was notified to him, he could still have challenged that measure within the period prescribed in Article 90(2) of the Staff Regulations.

(2) The arguments of the parties relating to the second part of the first plea, based on the improper conduct of the procedure set out in Articles 22a to 22c of the Staff Regulations and on the infringement of Article 3 of the internal rules

45.45 By this second part, the applicant alleges that the procedure provided for in Articles 22a to 22c of the Staff Regulations, which is concerned with the protection afforded to whistle-blowers, was conducted improperly and that Article 3 of the internal rules was infringed.

46.46 Firstly, the applicant claims that the Parliament failed to react in a manner consistent with Article 22a(3) of the Staff Regulations, which provides that the whistle-blower is not to suffer any prejudicial effects on the part of the institution. In his view, he has set out a causal link between the non-renewal of his contract and the fact that he complained of financial malpractice and incidences of harassment.

47.47 He criticises the Parliament for having failed to recognise him officially as a whistle-blower, for having not renewed his contract and for having disclosed his identity to more persons than was necessary. The only protective measures based on his complaint of harassment were to sideline him and then relieve him of his duties. However, the Parliament at no point recognised him as a whistle-blower and did not react in a sufficient and diligent manner following the examination of his complaint under Article 22a of the Staff Regulations.

48.48 Furthermore, the OLAF investigators have stated that the Parliament had still not contacted them about this matter. He received an initial response from the person supposedly responsible for examining his request in that regard on only 4 July 2022. It is, however, for the AECE to show that it complied with the protection afforded to a whistle-blower and informed the person concerned of the period of time within which his request would be handled pursuant to Article 22b(1)(b) of the Staff Regulations. The AECE failed to do so in the present case.

49.49 Second, the applicant claims that he did not receive any advice or assistance to deal with the retaliatory actions taken against him, contrary to the provisions of Article 3 of the internal rules. In addition, the fact that a new APA had been hired before the end of his contract made it inevitable that his contract would not be renewed. As at the date on which the present action was brought, no response to the applicant’s request for assistance has been provided, meaning that the obligations laid down in Article 3 of the internal rules and the Staff Regulations have been breached.

50.50 In the reply, the applicant claims that, even though the status of whistle-blower is automatically granted once the conditions laid down in the Staff Regulations are met, the Parliament should have at least confirmed that status as early as July 2021 and informed him whether and how it intended to take action in response to his complaint and provide him assistance on that basis.

51.51 In the first place, the Parliament contests the complaint alleging that it did not react in a manner consistent with Article 22b(3) of the Staff Regulations.

52.52 In that regard, first, it disputes that there were any shortcomings in the adoption of the protective measures linked to the applicant’s status as a whistle-blower. It states that, while the transfer measure was adopted to protect the applicant in connection with his request for assistance related to incidences of harassment, the discharge measure was adopted to protect him on the basis of his status as a whistle-blower. In addition, the applicant did not challenge that measure within the period prescribed in Article 90(2) of the Staff Regulations. Accordingly, the complaint based on the adverse effects of the discharge measure is inadmissible.

53.53 In any case, that discharge measure was adopted with the applicant’s consent. The applicant cannot claim that that measure hindered the renewal of his contract, since any renewal could be requested only by the Members of his grouping, with whom he had stated he no longer wish to work.

54.54 Second, as regards the alleged failure to recognise the applicant as a whistle-blower, the Parliament contends, first of all, that the administration cannot be required to recognise that status formally, rather that the status is acquired by the person concerned where the conditions laid down in Article 22a(1) of the Staff Regulations are met.

55.55 In the present case, according to the Parliament, the applicant acquired the status of whistle-blower when the administration of the Parliament or OLAF indicated that it was aware of facts as defined in Article 22a of the Staff Regulations. The applicant was indeed treated as a whistle-blower by the administration of the Parliament and he did in fact receive protection on that basis.

56.56 Third, the Parliament argues that the applicant contacted OLAF as early as August 2021, whilst the Director-General’s advisors were in the process of examining the documents provided in his request of 12 July 2021 containing reports of financial irregularities. In those circumstances, the Parliament considers that Article 22b(1)(b) of the Staff Regulations, which provides that the institution to which the whistle-blower has reported alleged unlawful activities must set a period of time to take appropriate action and must notify the whistle-blower of that period of time within 60 days, was rendered inapplicable.

57.57 In the second place, the Parliament contests having infringed Article 3 of the internal rules, which concerns its duty to provide advice and assistance. It was with those provisions in mind that the member of the Office of the Secretary-General replied to the applicant on 11 January 2022 and then discussed with him possible options for his protection on the basis of his status as a whistle-blower. Subsequently, on 17 February 2022, that member of the Office informed the applicant that the only conceivable protective measure was to discharge him from his duties and that the renewal of his contract was not an option as a protective measure on the basis of that status.

58.58 In the rejoinder, the Parliament notes that it follows from Article 6(2) of the internal rules that the administration is required to notify whistle-blowers, within a period of two months, of the action it intends to take on their requests for assistance. It observes, however, that the administration did in fact take action on the request for assistance of 10 January 2022 by adopting the discharge measure.

59

By this plea, the two parts of which must be examined jointly, the applicant essentially raises three separate complaints based, first, on the failure to recognise him as a whistle-blower formally, second, on the failure to inform him of the action taken on his reports and, third, the inadequacy of the protective measures adopted by the Parliament in that regard.

60

It is appropriate, first of all, to examine the admissibility of certain annexes, since their admissibility is contested by the Parliament.

(3) Admissibility of certain annexes

(i) Admissibility of Annexes C.6 and C.7

61

In Annex C.7 to the reply, the applicant produced the recording of a meeting which he had with the Director-General, on 15 February 2023, from which it is apparent, first, that an investigation had not been launched into the handling of the reports he had made as a whistle-blower, second, that the discharge measure had supplemented the transfer measure, which was insufficient to protect the applicant and, third, that the Director-General had never considered himself to be the competent authority as regards the protection owed to the applicant further to the alleged retaliatory acts.

62

The written record of that meeting was produced in Annex C.6 to the reply.

63

The Parliament argues that Annexes C.6 and C.7 were obtained unlawfully. It therefore requests that they be withdrawn from the file.

64

It must be observed that, according to case-law, there is no provision that expressly prohibits evidence obtained unlawfully from being taken into account. In such situations, it is necessary, in weighing up the interests to be protected, to consider whether particular circumstances, such as the decisive nature of the production of the document for the purpose of reviewing the lawfulness of the procedure leading to the adoption of the contested measure, constitute grounds for not withdrawing a document (see, to that effect, judgment of 12 May 2015, Dalli v Commission, T‑562/12, EU:T:2015:270, paragraphs 47 and 48 and the case-law cited).

65

Annexes C.6 and C.7 concern a meeting held in February 2023, that is to say, after the action was brought on 22 December 2022. There is no need to keep them in the file since, first, the applicant has not claimed that particular circumstances exist within the meaning of the case-law referred to in paragraph 64 above and, second, their content, which relates to matters occurring after the action was brought, is not decisive for the purpose of examining the complaints which he raises.

(ii) Admissibility of Annex E.1 and the letter accompanying it

66

On 5 December 2023, the applicant produced, in Annex E.1, extracts of the administrative investigation report adopted on 17 June 2022 by the advisory committee responsible for examining complaints of harassment concerning Members of the Parliament, accompanied by a letter setting out his observations.

67

The Parliament argues that Annex E.1 is inadmissible because it was submitted late. It also notes that that annex was obtained improperly.

68

Firstly, it must be recalled that, under Article 85(1) and (2) of the Rules of Procedure:

‘1. Evidence produced or offered shall be submitted in the first exchange of pleadings.

69

In the present case, the late submission of Annex E.1 cannot be held against the applicant since, as it emerged at the hearing, it is a document which he obtained by other means after requesting it in vain from the Parliament. Second, it follows from the case-law reproduced in paragraph 64 above that neither any confidentiality attached to a document nor the fact that it may have been obtained unlawfully requires that the document be withdrawn from the file.

70

However, there is no need to keep Annex E.1 and the letter accompanying it in the file, since their content is not decisive for the purpose of examining the complaints raised by the applicant. The administrative investigation report of 17 June 2022 concerns the handling of the applicant’s complaint of harassment, whereas these proceedings relate to the handling of his status as a whistle-blower.

(iii) Admissibility of Annexes F.1 and F.2

71

In Annex F.1 to his response of 19 December 2023 to the Court’s questions of 27 November 2023, the applicant provided exchanges, dated November and December 2023, between the Directorate-General for Personnel and other APAs who had lodged a request for assistance. In Annex F.2, he produced the internal rules relating to the implementation of Article 22b of the Staff Regulations, adopted by the Parliament on 20 November 2023.

72

At the hearing, the Parliament argued that Annexes F.1 and F.2 were inadmissible because they had been provided in response to a measure of organisation of procedure adopted by the Court concerning a different matter.

73

In accordance with Article 89(1) of the Rules of Procedure, the purpose of measures of organisation of procedure is to ensure that cases are prepared for hearing, procedures carried out and disputes resolved under the best possible conditions.

74

It is apparent from the very wording of Article 88 of the Rules of Procedure that the decision to put questions to the parties is a matter which is entirely within the discretion of the Court and that the Court remains free in its absolute discretion to assess the value to be given to various legal and factual matters which have been submitted to it (see, to that effect, order of 31 January 2017, Universal Protein Supplements v EUIPO, C‑485/16 P, not published, EU:C:2017:72, paragraph 15 and the case-law cited).

75

Here, although their production was not formally requested by the Court, Annexes F.1 and F.2 serve to illustrate the applicant’s answer to the third question put by the Court in the context of the measures of organisation of procedure, by which the Court invited the parties to submit any observations they might wish to make on the conclusions to be drawn for the present case from the judgment of 15 November 2023, PL v Commission (T‑790/21, EU:T:2023:724). Accordingly, the lodgement of Annexes F.1 and F.2, enclosed as supplements to the responses to the measures of organisation of procedure, can be regarded as justified, and therefore those annexes must be found to be admissible.

(4) The lack of formal recognition of the applicant’s status as a whistle-blower

76

The applicant criticises the Parliament’s failure to recognise formally his status as a whistle-blower.

77

It should be recalled that, under Article 22a(1) to (3) of the Staff Regulations, applicable by analogy to APAs pursuant to Article 127 of the CEOS:

‘1. Any official who, in the course of or in connection with the performance of his duties, becomes aware of facts which give rise to a presumption of the existence of possible illegal activity, including fraud or corruption, detrimental to the interests of the Union, or of conduct relating to the discharge of professional duties which may constitute a serious failure to comply with the obligations of officials of the Union, shall without delay inform either his immediate superior or his Director-General or, if he considers it useful, the Secretary-General, or the persons in equivalent positions, or the European Anti-Fraud Office (OLAF) direct.

Information mentioned in the first subparagraph shall be given in writing.

This paragraph shall also apply in the event of serious failure to comply with a similar obligation on the part of a Member of an institution or any other person in the service of or carrying out work for an institution.

78

Thus, it is apparent from the first subparagraph of Article 22a(1) of the Staff Regulations, applicable by analogy to APAs pursuant to Article 127 of the CEOS, that that paragraph applies to any official who becomes aware of facts ‘which give rise to a presumption’ of the existence of illegal activity or a serious failure to comply with the obligations of officials.

That condition is satisfied if the official concerned communicates genuine, or at least probable, specific facts a preliminary examination of which would have reasonably led him or her to assume the existence of illegal activity or a serious failure to comply with obligations (see judgment of 20 October 2021, ZU v Commission, T‑671/18 and T‑140/19, not published, EU:T:2021:715, paragraph 267 and the case-law cited).

80

It follows that the disclosure must relate to specific facts. In addition, the use of the words ‘give rise to a presumption’ and the condition set out in Article 22a(3) of the Staff Regulations, to which a whistle-blower official is subject, to act ‘reasonably and honestly’, that is to say, according to the Spanish, English, Dutch and Portuguese language versions of that provision, to be able to be ‘honestly and reasonably’ of the view that his or her reports are ‘substantially true’, requires him or her, before making any disclosure, to carry out a basic assessment such that he or she is reasonably convinced of the relevance of the factual matters in question vis-à-vis possible irregularities or a serious failure to comply with obligations (see, to that effect, judgment of 13 January 2011, Nijs v Court of Auditors, F‑77/09, EU:F:2011:2, paragraph 65).

81

It follows from the foregoing that the Parliament was not required to adopt a decision recognising that the applicant had the status of a whistle-blower. The protection provided for in Article 22a(3) of the Staff Regulations is granted, without any formalities, to officials who have provided information about facts which give to a presumption of the existence of illegal activity, simply by virtue of having provided that information (judgment of 12 December 2014, AN v Commission, T‑512/13 P, EU:T:2014:1073, paragraph 31).

82

In the present case, as the Parliament acknowledged at the hearing, the applicant acquired the status of a whistle-blower from the moment that the administration was made aware, in writing, of the facts referred to in Article 22a of the Staff Regulations, which the applicant had moreover communicated to OLAF, either on 23 August 2021 (see paragraph 6 above) or not later than on 3 September 2021, when OLAF notified the Parliament that the applicant had informed it of irregularities covered by Article 22a(1) of the Staff Regulations.

83

It follows from the foregoing that the applicant cannot reasonably claim that his request of 10 January 2022 met with an implied refusal in so far as its purpose was that he be recognised as a whistle-blower, since the Parliament was not required to adopt a legal measure granting or refusing to grant that status to the applicant. Accordingly, in so far as they concern the failure to adopt a measure, the claims for annulment of the implied decision in so far as that decision rejected the applicant’s request of 10 March 2022 to be recognised as a whistle-blower must be dismissed as inadmissible.

84

That finding is without prejudice to the need for the Parliament to respect the rights arising from the applicant’s status as a whistle-blower, which are examined below.

(5) The failure to notify the applicant of the action taken on his complaints

85

The applicant claims that it is for the AECE to show that it notified him of a period of time within which his request would be handled pursuant to Article 22b(1)(b) of the Staff Regulations, which it failed to do in the present case. He further claims that the Parliament failed to react in a sufficient and diligent manner after examining his complaint based on Article 22a of the Staff Regulations. In the reply, relying on Article 5(3) of the internal rules, he submits that the Parliament should have informed him whether it intended to follow up his complaint and what action it would take.

86

Under Article 22b(1) of the Staff Regulations, applicable by analogy to APAs pursuant to Article 127 of the CEOS:

‘An official who further discloses information as defined in Article 22a to the President of the Commission or of the Court of Auditors or of the Council or of the European Parliament, or to the European Ombudsman, shall not suffer any prejudicial effects on the part of the institution to which he belongs provided that both of the following conditions are met:

(a) the official honestly and reasonably believes that the information disclosed, and any allegation contained in it, are substantially true; and

(b) the official has previously disclosed the same information to OLAF or to his own institution and has allowed OLAF or that institution the period of time set by the Office or the institution, given the complexity of the case, to take appropriate action. The official shall be duly informed of that period of time within 60 days.’

87

In accordance with the wording of the first and second subparagraphs of Article 22a(1) of the Staff Regulations, an official ‘who becomes aware of facts which give rise to a presumption’ of the existence of possible illegal activity detrimental to the interests of the Union or of conduct relating to the discharge of professional duties which may constitute a serious failure to comply with the obligations of officials is to inform, without delay and in writing, ‘his immediate superior or his Director-General or, if he considers it useful, the Secretary-General, or the persons in equivalent positions, or [OLAF] direct’. If the institution or OLAF fails to act, after a certain period of time has passed, the official may, pursuant to Article 22b(1) of the Staff Regulations, pass on the information to the President of the Commission or of the Court of Auditors or of the Council or of the European Parliament, or to the European Ombudsman (judgment of 5 December 2012, Z v Court of Justice, F‑88/09 and F‑48/10, EU:F:2012:171, paragraph 250).

88

Furthermore, Article 22c of the Staff Regulations, also applicable to APAs pursuant to Article 127 of the CEOS, provides as follows:

‘In accordance with Articles 24 and 90, each institution shall put in place a procedure for the handling of complaints made by officials concerning the way in which they were treated after or in consequence of the fulfilment by them of their obligations under Article 22a or 22b. The institution concerned shall ensure that such complaints are handled confidentially and, where warranted by the circumstances, before the expiry of the deadlines set out in Article 90.

The appointing authority of each institution shall lay down internal rules on inter alia:

– the provision to officials referred to in Article 22a(1) or Article 22b of information on the handling of the matters reported by them;

– the protection of the legitimate interests of those officials and of their privacy, and

– the procedure for the handling of complaints referred to in the first paragraph of this Article.’

89

Implementing Article 22c of the Staff Regulations, Article 5 of the internal rules, which is entitled ‘Right to information’, provides as follows:

‘1. The whistleblower’s superior shall acknowledge receipt of the information forwarded to him or her within five working days of receiving it.

90

In the present case, as stated in paragraph 82 above, the Parliament considers that it received information relating to specific facts, within the meaning of case-law and pursuant to Article 22a of the Staff Regulations on 23 August 2021 or no later than on 3 September 2021.

91

In any case, whichever date is used, it is not apparent from the file or from the hearing that the Parliament acknowledged receipt of the reports made by the applicant within five working days, that it informed him, within 60 days, of the period of time required in order to take appropriate action, or that it informed him of the action taken by the institution further to his reports, as provided for in Article 5(1), (2) and (3) of the internal rules, cited in paragraph 89 above.

92

The Parliament takes the view that those rules had become ‘ineffective’ since the applicant had reported the financial irregularities to OLAF, referring the matter to it directly.

However, it is not apparent from Articles 22a to 22c of the Staff Regulations or from Article 5 of the internal rules that the Parliament’s obligation to provide information ceases to exist where a whistle-blower has, at the same time, referred the matter to OLAF.

94

On the contrary, Article 22a(1) of the Staff Regulations provides that an official or other member of staff who becomes aware of facts which give rise to a presumption of the existence of illegal activity detrimental to the financial interests of the European Union is to without delay inform either his immediate superior or his Director-General or, if he considers it useful, the Secretary-General, or the persons in equivalent positions, or OLAF direct. A whistle-blower in possession of information as defined in that provision may therefore pass on that information to OLAF directly, if he or she considers it useful, without this resulting in a lesser degree of protection or the application of different legal rules.

95

This is borne out by the fact that, as is apparent from Article 22a(2) of the Staff Regulations, where the whistle-blower does not personally communicate the information of which he or she is aware to OLAF directly, it falls to any official receiving the information referred to in paragraph 1 of that provision to transmit without delay to OLAF any evidence of which he or she is aware from which the existence of the irregularities referred to in paragraph 1 may be presumed.

96

In addition, it is apparent from Article 22b(1) of the Staff Regulations that the information referred to in Article 22a of the Staff Regulations must be disclosed previously by the official or member of staff in possession of such information to OLAF or his or her institution so that that official or member of staff can be protected against any retaliation. Furthermore, Article 22b(1)(b) of the Staff Regulations provides that the official or member of staff is to be duly informed of the period of time required by OLAF or the institution to take appropriate action.

97

It is true that, as the Parliament argues, Article 5(3) of Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ 2013 L 248, p. 1) states as follows:

‘While the Director-General [of OLAF] is considering whether or not to open an internal investigation following a request as referred to in paragraph 2, and/or while [OLAF] is conducting an internal investigation, the institutions, bodies, offices or agencies concerned shall not open a parallel investigation into the same facts, unless agreed otherwise with [OLAF].’

98

In addition, under the second subparagraph of Article 5(4) of Regulation No 883/2013, where an official, other servant, member of an institution or body, head of office or agency or staff member, acting in accordance with Article 22a of the Staff Regulations, provides information to OLAF relating to a suspected fraud or irregularity, OLAF is to inform that person of the decision whether or not to open an investigation in relation to the facts in question.

99

The Parliament infers from the foregoing that, since the matter had already been referred to OLAF, it fell to OLAF to inform the applicant of the period of time within which it would take appropriate action.

100

However, regardless of OLAF’s obligations to provide information to the applicant, it also fell to the Parliament, the competent authority for guaranteeing the protection of the institution’s members of staff who have reported, pursuant to Articles 22a and 22b of the Staff Regulations, serious irregularities, since facts as referred to in Article 22a of the Staff Regulations had been brought before it, first, to acknowledge receipt of that report and, second, to inform the applicant, within 60 days, of the period of time required in order to take appropriate action, as provided for in Article 5(1) and (2) of the internal rules.

101

It is true that, in accordance with Regulation No 883/2013, from the point at which the Parliament had been informed, on 23 August 2021 or, at the latest, on 3 September 2021, that the applicant had referred the matter to OLAF directly (see paragraphs 6 and 82 above), it could not conduct a parallel investigation into the same facts. However, the Parliament should still have notified the applicant of that fact, both in accordance with its duty to have regard to the welfare of staff and pursuant to Article 5(3) of its internal rules, from which it is apparent that it fell to it to notify the whistle-blower of the action taken by the institution further to his reports.

102

In the light of the foregoing, the Parliament infringed Article 5 of its internal rules.

(6) The inadequacy of the protective measures adopted under Articles 22a to 22c of the Staff Regulations

103

By this complaint, the applicant alleges in essence that, by confining itself to relieving him of his duties, the Parliament did not take adequate protective measures arising from his status as a whistle-blower.

(i) The burden of proof as to the adequacy of the protective measures

104

The applicant submits that the Parliament has the burden of proving that the necessary protective measures were implemented to protect him in his capacity as a whistle-blower.

105

It is therefore necessary, as a preliminary point, to determine which party has the burden of proving that the protective measures are adequate in the present case.

106

The applicant refers to Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (OJ 2019 L 305, p. 17). The purpose of that directive is to enhance the enforcement of EU law and policies in specific areas by laying down common minimum standards providing for a high level of protection of persons reporting breaches of EU law.

107

Article 21 of Directive 2019/1937, which is entitled ‘Measures for protection against retaliation’, provides, in paragraph 5 thereof, as follows:

‘In proceedings before a court or other authority relating to a detriment suffered by the reporting person, and subject to that person establishing that he or she reported or made a public disclosure and suffered a detriment, it shall be presumed that the detriment was made in retaliation for the report or the public disclosure. In such cases, it shall be for the person who has taken the detrimental measure to prove that that measure was based on duly justified grounds.’

108

Recital 93 of Directive 2019/1937 sets out the rationale for that provision in the following terms:

‘Retaliation is likely to be presented as being justified on grounds other than the reporting and it can be very difficult for reporting persons to prove the link between the reporting and the retaliation, whilst the perpetrators of retaliation may have greater power and resources to document the action taken and the reasoning. Therefore, once the reporting person demonstrates prima facie that he or she reported breaches or made a public disclosure in accordance with this Directive and suffered a detriment, the burden of proof should shift to the person who took the detrimental action, who should then be required to demonstrate that the action taken was not linked in any way to the reporting or the public disclosure.’

109

It is true that Directive 2019/1937 is addressed to the Member States and is not binding, as such, on the institutions of the European Union.

110

Nevertheless, according to case-law, the fact that a directive is not binding, as such, on the institutions cannot prevent it from being indirectly applicable to the institutions in their relations with their officials and members of staff, in certain particular circumstances (see, to that effect, judgment of 8 November 2012, Commission v Strack, T‑268/11 P, EU:T:2012:588, paragraphs 42 to 44 and the case-law cited).

111

In a situation in which, as here, the Parliament is required to implement provisions, laid down in Articles 22a to 22c of the Staff Regulations, which are specifically intended to guarantee protection for whistle-blowers against any retaliatory measures, the Parliament cannot provide for less protective measures than those which have been specifically adopted, in that regard, by the EU legislature in relation to the protection of whistle-blowers by the Member States.

112

In the present case, the applicant describes being isolated and feeling discouraged in his work, having received no feedback on a task which had been assigned to him and without the results of his work being taken into account. Lastly, the applicant produces an email dated 7 January 2022 from which it is apparent that, even before he had been discharged from his duties and his contract had ended, another person had already been hired as an APA to carry out the tasks which had been previously assigned to him.

113

Furthermore, more than two years after the facts reported by the applicant, his complaints concerning the alleged retaliation by the leadership of the delegation are still being examined, with the result that the Parliament could not take a position on that question at the hearing.

114

Moreover, it is apparent, inter alia, from the applicant’s description of events annexed to his request for assistance of 10 January 2022 that, after he had been placed under the authority of the chair of the delegation, that person gave curt responses to the applicant’s emails and at no point asked how he was feeling after the harassment which he had experienced.

115

In those circumstances, the applicant plausibly argues that he suffered prejudicial effects not only on the part of the Member in question but also on the part of the chair of the delegation.

116

In a situation such as the present one, in which the applicant provides credible evidence that he suffered prejudicial effects further to the adoption of the transfer measure and his complaints about the alleged retaliation by the leadership of the delegation are, moreover, still being examined, it is for the Parliament to demonstrate that it has fulfilled its duty to protect the whistle-blower by adopting adequate measures to that end.

(ii) The adequacy of the protective measures

117

Article 22a(3) of the Staff Regulations, the wording of which is reproduced in paragraph 77 above, lays down the rule that, provided that he or she acted reasonably and honestly, an official who has informed his superiors of facts of which he or she became aware in the course of or in connection with the performance of his or her duties and which give rise to a presumption of the existence of possible illegal activity, or of conduct relating to the discharge of professional duties which may constitute a serious failure to comply with the obligations of officials of the Union, is not to suffer any prejudicial effects on the part of the institution.

– The discharge measure

118

In the present case, the Parliament adopted two protective measures. The first measure – namely, the transfer measure – was adopted as a direct result of the applicant’s complaint of harassment and the accompanying request for assistance. The applicant had in fact claimed, in his request of 12 July 2021, that he needed immediate protection and that he could no longer work for the Member in question. The second measure – namely, the discharge measure – was adopted further to his complaint of 10 January 2022, in which he complained of the retaliation which he had suffered on the part of the leadership of the delegation following his complaints. In the latter complaint, the applicant asked to cease working for the delegation and to be reassigned to a different post.

119Thus, contrary to what the applicant claims, the Parliament did actually adopt a protective measure intended to respond to his request of 10 January 2022 by adopting, on 13 January 2022, the measure discharging him from his duties.

120It remains to be determined, however, whether that measure was an adequate protective measure with a view to protecting the applicant based on his status as a whistle-blower.

121The arguments raised by the applicant must thus be construed as meaning that he does not contest the discharge measure as such. The Parliament’s arguments by which it contends that that measure has become final because a complaint was not lodged within the periods prescribed in that regard, must therefore be rejected as irrelevant (see paragraph 52 above).

122In order to assess whether the discharge measure was an adequate protective measure, regard must be had to the context, which was characterised by the following factors.

123First, the Parliament does not contest that, when a request for renewal of his APA contract was submitted, the applicant had provided information as defined in Article 22a(1) and (2) of the Staff Regulations, or that he had acted reasonably and honestly, with the result that, by virtue of those facts alone, he had the status of a whistle-blower and enjoyed protection against any retaliatory measures in that respect (see paragraphs 55 and 82 above).

124Second, the Parliament stated at the hearing that the applicant’s complaints about the alleged retaliatory action adopted by the leadership of the delegation were still being examined.

125Third, the applicant held an APA post, a post characterised by the existence of specific rules limiting the duration of contracts, as a result of Article 130(1) of the CEOS, and by the freedom of choice enjoyed by Members and the mutual trust which has to characterise the working relationship between them and their APAs, as referred to, respectively, in Article 21(1) of Decision 2005/684/EC, Euratom of the European Parliament of 28 September 2005 adopting the Statute for Members of the European Parliament (OJ 2005 L 262, p. 1; ‘the Statute for Members’) and Article 127 of the CEOS (see paragraphs 129 to 132 below).

126Fourth, the applicant’s contract was due to end and did end on 22 February 2022 without a request for renewal of that contract having been made by one or more of the Members of the grouping.

127Lastly, the applicant had expressed his wish to continue working within the Parliament. In his complaint of 10 January 2022, he requested not only that he be discharged from his duties within the delegation, but also that he be transferred to any other post within the Parliament (see paragraph 9 above).

It follows from Article 22a(3) of the Staff Regulations that the Parliament must take all the necessary measures to ensure that whistle-blowers receive balanced and effective protection against any form of retaliation, including threats of retaliation and attempted retaliation. Where reports of serious irregularities are made by the institution’s members of staff, in accordance with Articles 22a and 22b of the Staff Regulations, it falls to the Parliament to protect their legitimate interests.

– The possibility of renewing the applicant’s APA contract

129As regards the possibility of transferring an APA to another Member on the administration’s initiative, in order to protect the person concerned based on his or her status as a whistle-blower, it must be recalled that, under Article 130(1) of the CEOS:

‘The contracts of accredited parliamentary assistants shall be concluded for a fixed period and shall specify the grade in which the assistant is classified. A contract shall not be extended more than twice during a parliamentary term. Unless otherwise specified in the contract itself and without prejudice to Article 139(1)(c), the contract shall terminate at the end of the parliamentary term during which it was concluded.’

130Article 18(3) of the implementing measures for Title VII of the CEOS provides, in that regard, that a request to extend an APA’s contract must be forwarded to the AECE no later than one month before the contract’s expiry.

131Furthermore, Article 21(1) of the Statute of Members provides that ‘Members shall be entitled to assistance from personal staff whom they may choose freely.’

132Article 127 of the CEOS provides:

‘Articles 11 and 26a of the Staff Regulations shall apply by analogy. Having strict regard, in particular, to the specific nature of the functions and duties of accredited parliamentary assistants and the mutual trust which has to characterise the working relationship between them and the Member or Members of the European Parliament whom they assist, the implementing measures relating to this area, adopted pursuant to Article 125(1), shall take account of the specific nature of the working relationship between Members and their accredited parliamentary assistants.’

133It thus follows from those provisions that the initiative of renewing an APA contract rests solely with one or more Members, who cannot be required to work, or to continue to work, with APAs whom they have not freely chosen. An APA maintains with the Member or Members whom he or she assists a working relationship characterised by the existence of a bond of trust.

134In the present case, it is apparent from those provisions that, as the Parliament rightly argues, in the absence of an explicit request from one or more Members of the grouping, there was no possibility of renewing the applicant’s APA contract.

135Therefore, the Parliament did indeed justify the non-renewal of the applicant’s contract by the fact that a request to that effect had not been made by a Member of the grouping. That finding is without prejudice to the Parliament’s duty to take all the measures necessary to ensure the applicant has balanced and effective protection against any form of retaliation.

– The possibility of reassigning the applicant to another post within the Parliament

It must be recalled that, under Article 4(2) of the internal rules:

‘The Administration shall take reasonable steps to help whistleblowers transfer to another post, should they wish to do so. …’

137In the defence, the Parliament stated that it had informed the applicant that discharging him from his duties was the only conceivable protective measure. However, at the hearing, the Parliament acknowledged that Article 4(2) of the internal rules applied to APAs and that a protective measure consisting in placing an APA recognised as a whistle-blower within another department within the Parliament could be adopted in principle, provided that the individual concerned remains an APA and the end date of the contract is observed. In that regard, the exchanges, dated November and December 2023, between the Directorate-General for Personnel and other APAs who had lodged a request for assistance, produced by the applicant in Annex F.1 to his response of 19 December 2023 to the Court’s questions of 27 November 2023, set out the options for transfer to other departments within the Parliament available to APAs who have submitted complaints of harassment.

138Given the applicant’s status as a whistle-blower and pursuant to Article 22a(3) of the Staff Regulations, the Parliament should have supported him by attempting to help him to find a solution, in addition to discharging him from his duties.

– The duty to provide advice and assistance

139The applicant also claims that he did not receive any advice or assistance to deal with the retaliatory measures allegedly adopted in relation to him, contrary to the provisions of Article 3 of the internal rules (see paragraph 49 above).

140Article 3 of the internal rules, which is entitled ‘Advice and assistance’, provides as follows:

‘1. Whistleblowers may, on request, obtain confidential advice on and assistance with reporting serious irregularities.

141In that connection, the Parliament contends simply that the member of the Secretary-General’s Office informed the applicant that there was no conceivable measure other than discharging him from his duties in order to protect him based on his status as a whistle-blower and that the renewal of his contract was not an option in that regard (see paragraph 57 above).

142By confining itself to providing such information, the Parliament did not show that it had provided the applicant with the advice and assistance required under Article 3 of the internal rules.

(iii) Conclusions on the complaint based on the inadequacy of the protective measures adopted by the Parliament

143It is clear from the foregoing that the Parliament has not demonstrated that it adopted all the necessary measures to ensure that the applicant did not suffer any prejudicial effects on the part of the institution as a result of his status as a whistle-blower, pursuant to Article 22a(3) of the Staff Regulations.

144In that regard, it must be observed that it is for the Parliament, and not the Court, to determine, in the circumstances of the present case, which specific protective measures could have been adopted.

145Accordingly, infringement of Article 22a of the Staff Regulations and of Article 4(2) and Article 3 of the internal rules is established in the present case.

146The complaint based on the inadequacy of the protective measures adopted by the Parliament pursuant to Articles 22a to 22c of the Staff Regulations must therefore be upheld in part.

147It follows that the complaints based, respectively, on the failure to provide the applicant with information about the action taken further to his reports (see paragraph 102 above) and on the inadequacy of the protective measures adopted pursuant to Articles 22a to 22c of the Staff Regulations must be partially upheld. The first plea, alleging infringement of the protection rules connected with the applicant’s status as a whistle-blower, must be dismissed as to the remainder.

– The second plea, alleging, in essence, first, infringement of Article 22b of the Staff Regulations and of the internal rules and, second, the inadequacy and insufficiency of those rules

148In the first place, the applicant claims that, after submitting his complaint, he was informed that it would be handled by the legal service. In his opinion, this is contrary to Article 22c of the Staff Regulations, which lays down specific rules for the handling of complaints submitted by whistle-blowers.

149In the second place, the applicant alleges that the Parliament failed to comply with the protection to be afforded to whistle-blowers under Article 4(2) of the internal rules, which provides that the Parliament must take reasonable steps to help whistle-blowers transfer to another post, should they wish to do so. The Parliament was wrong to take the view that that provision did not apply to APAs.

150By denying the applicant that protection because he is an APA, the Parliament concedes that it did not adopt special protective measures in respect of the applicant, in breach of Article 22c of the Staff Regulations.

151Lastly, according to the applicant, if the Parliament was justified in claiming that it is impossible to protect the applicant as a whistle-blower on account of his status as an APA, this would mean that protection was not granted beyond that provided for in Article 24 of the Staff Regulations. The Parliament has not even provided for the applicant to be compensated for having suffered from the consequences arising from his obligations under Article 22a of the Staff Regulations. The Parliament has never adjusted its rules in order to comply with its obligations.

152The Parliament takes the view that Article 4(2) of the internal rules is difficult to apply in the case of APAs and that it must be reconciled with the need to observe the rules in force. Article 4 of the internal rules does not allow the administration to transfer an APA to a post within the Secretariat-General, since this would circumvent the rules applicable to the recruitment of officials and members of staff as laid down in the Staff Regulations and the CEOS.

153Similarly, an APA cannot be transferred to another Member at the administration’s initiative. In that regard, the Parliament points to the particular nature of the contracts concluded between an APA and a Member or a grouping of Members, which bind the APA personally to the Member or to the grouping of Members assisted by him or her. Given that relationship of trust between an APA and his or her Member and the freedom of choice enjoyed by Members, as provided for in Article 21(1) of the Statute of Members, a transfer is possible only on the initiative of one or more Members.

154With regard to the applicant’s situation, the implementation of Article 4(2) of the internal rules was limited by the fact that he had been placed under the responsibility, within the grouping, of the chair of the delegation and that he had expressed the wish to cease working with the Members in his grouping and to be transferred to another post. It is for that reason that, after consultation with the applicant, the Director-General decided that the measure best suited to protecting the applicant given his status as a whistle-blower was to discharge him from his duties.

155As regards the possibility of transferring an APA to another department within the Parliament in order to protect him as a whistle-blower, on the basis of Article 4(2) of the internal rules, this complaint essentially overlaps with the third complaint analysed in the context of the first plea above. Reference must therefore be made, in that regard, to the analysis contained in paragraphs 136 to 138 above.

156As for the possibility of transferring an APA to another Member on the administration’s initiative, in order to protect the APA as a whistle-blower, that possibility is analysed in paragraphs 129 to 135 above.

157The applicant also claims that the internal rules applicable to APAs are inadequate and insufficient.

158Under Article 4(2) of the internal rules, the Parliament has to take reasonable steps to help whistle-blowers transfer to another post, should they wish to do so. It must be observed that that provision does not specify which measures must or may be taken, but rather leaves the Parliament a degree of latitude in that regard. It is apparent from paragraphs 136 to 138 above, first, that that provision does apply to APAs and, second, that the Parliament failed to adopt sufficient measures, with the result that it did not apply that provision correctly in the present case. Accordingly, the inadequacy of the protective measures adopted by the Parliament is due not to the internal rules but rather to their application by the Parliament in the present case.

159As for the alleged infringement of Article 22c of the Staff Regulations because the applicant did not receive the special protection applicable to whistle-blowers in the handling of his complaint, from the point of view both of confidentiality and the period of time for its handling, it must be recalled that that provision states that the institution concerned is required to ensure that complaints made by officials concerning the way in which they were treated after the fulfilment by them of their obligations under Article 22a or 22b of the Staff Regulations are to be handled confidentially and, where warranted by the circumstances, before the expiry of the deadlines set out in Article 90 of the Staff Regulations.

160In the present case, first, the applicant does not state how the investigation of his complaint by the legal service made it impossible to guarantee the confidentiality of its handling. Furthermore, contrary to what he suggests, the fact that Article 22c of the Staff Regulations provides that each institution is to put in place a procedure for the handling of such complaints does not mean that those complaints cannot be handled by the same department which handles other complaints.

161Second, Article 6(3) of the internal rules provides that the time limits for a response to such complaints ‘shall be reduced to two months, except where there is good reason not to do so’. In the present case, the Parliament dealt with the applicant’s complaint in a period of three months and 24 days (see paragraphs 17 and 18 above). That appears justified by the complexity of the case, given that the applicant had reported, first, financial irregularities pursuant to Article 22a of the Staff Regulations and, second, incidences of harassment, and the magnitude of the complaint, which was accompanied by almost 120 pages of annexes.

162It follows that the second plea must be dismissed in so far as it alleges infringement of Article 22c of the Staff Regulations and of the internal rules and the inadequacy and insufficiency of those rules.

– The third plea, alleging a breach of confidentiality and of the protection of the applicant’s identity as a whistle-blower

163In the applicant’s view, his request for assistance and the complaints made by him were not handled in a manner such that the confidentiality of his data was protected or his identity protected.

164In the present case, there was no need for the chair of the delegation to be informed of the reasons why the applicant had been transferred to him. In addition, the AECE did not seek his consent to his status as a whistle-blower being revealed to that Member. Once his identity was mentioned, no Member wanted to request that the applicant’s contract be renewed.

165In the reply, the applicant submits that it is for the Parliament to prove that the necessary confidentiality and protection rules were implemented to protect him in his capacity as a whistle-blower. In addition, contrary to what the Parliament argues, the chair of the delegation did not need to know the reasons why the applicant was discharged from his duties, especially since the complaints made by the applicant concerning the retaliatory measures suffered by him also concerned the chair.

166The applicant further claims that the Parliament cannot argue that there is no evidence of the retaliatory action which followed the disclosure of his status as a whistle-blower, since OLAF opened an investigation into that specific matter. The causal link could therefore, at the very least, be presumed at that juncture and it was for the Parliament to produce evidence to the contrary.

167Finally, the applicant considers that a distinction must be drawn between, on the one hand, the fact that he drew the attention of the chair of the delegation to the irregularities and harassment perpetrated by the Member in question in May 2021 and, on the other hand, the fact that that chair learned from the Director-General that the applicant made such reports outside the grouping, to the Director-General and to OLAF, on the basis of Article 22a of the Staff Regulations. The Parliament cannot therefore argue that the applicant himself revealed his status as a whistle-blower within the delegation.

168The Parliament challenges, firstly, the applicant’s allegation that it informed the chair of the delegation why the applicant had been transferred to him. It is not apparent from the file that the applicant’s status as a whistle-blower was communicated by the administration to the chair of the delegation.

169Second, the Parliament observes that the email of 13 January 2022 was sent to the chair of the delegation in order to apprise him of the situation, since the applicant was going to be discharged from his duties in connection with the chair. In addition, since the protective measure at issue was adopted in the context of Article 6(1) of the internal rules, the chair of the delegation was bound by the duty of confidentiality provided for in Article 6(4) of those rules.

170In any case, the Parliament contests the applicant’s allegation that, once his status as a whistle-blower had been revealed, no other Member wanted to request that his contract be renewed, since that allegation is unsubstantiated. Furthermore, the Parliament observes that, at a meeting on 31 May 2021, the applicant himself told some Members, including the chair of the delegation, of the alleged harassment and financial irregularities perpetrated by the Member in question.

171The Parliament contests that a causal link can be assumed between the non-renewal of the applicant’s contract and the Parliament’s communication of the applicant’s status as a whistle-blower to the chair of the delegation.

172Moreover, it contests that the chair of the delegation learned, by the email of 13 January 2022 from the Director-General, that the applicant had made complaints outside his grouping. It is in fact explicitly clear from the applicant’s email of 10 January 2022 that he was complaining of the retaliation suffered not only as a result of the complaints which he had made within his grouping, but also the complaints that he had made to the Directorate-General for Personnel and to OLAF.

173Article 4(1) of the internal rules provides as follows:

‘Whistleblowers may not act anonymously. Their identity shall be kept confidential. They may, however, agree to have their identity disclosed to specific persons or authorities.’

174Firstly, in the application, the applicant claims that the chair of the delegation had not been informed of the reasons why he had been transferred to that chair. However, in the reply, he argues that ‘the confidentiality of his status as a whistle-blower was not breached immediately, given that, in July 2021, he was transferred as a temporary measure “officially” only because of his status as a victim of potential harassment by the [Member in question]’.

175In that regard, it must be observed that, when the transfer measure was adopted in response to the complaint of harassment, the applicant did not yet have the status of a whistle-blower. The notification to the chair of the delegation of the reasons why the applicant was then placed under him cannot therefore have infringed the internal rules which protect whistle-blowers. It follows that that complaint must be dismissed.

176Second, the applicant complains that, by the email of 13 January 2022, the chair of the delegation was informed of the reasons why the applicant had been discharged from his duties, especially given that the complaints made by the applicant relating to the retaliatory actions to which he was subject also concerned the chair of the delegation.

177It should be recalled that, in his decision rejecting the applicant’s complaint, the Secretary-General took the following view in that regard:

‘… as for the email of 13 January 2022, I note that, aside from the DG PERS administrators, it was intended for [the chair of the delegation], to whom your client had been temporarily transferred. Whilst your line of argument is based on the fact that Article 4(1) of the internal rules guarantees that your client’s identity is kept confidential, I note that it was important that [the chair of the delegation] was informed of the situation since your client was discharged from his duties in connection with that person. That information had to be provided a fortiori because [the chair of the delegation] was not concerned by the reports of irregularities and was himself bound by the duty of confidentiality referred to in Article 6(4) of those same rules …’

178However, the Parliament is wrong to contend that the complaints contained in the applicant’s email of 10 January 2022 did not concern the chair of the delegation.

179Whilst, initially, the applicant’s complaints related to the Member in question, the measure which saw the applicant discharged from his duties was adopted further to his complaints of 10 January 2022 concerning alleged retaliatory measures which he suffered on the part of the leadership of the delegation, including the chair of that delegation. It is true that those new complaints made by the applicant concerned retaliation to which he considered himself to have been subject and did not relate to the financial irregularities which he had previously reported. However, the Parliament could not simply find, in the decision rejecting the complaint, that the chair of the delegation was not concerned by the complaints of irregularities made by the applicant, since that chair was concerned by the complaints of retaliation set out in the applicant’s email of 10 January 2022.

180Accordingly, by informing the chair of the delegation, by the email of 13 January 2022, that the applicant was discharged from his duties with that chair because of his request for assistance in addition to the applicant’s status as a whistle-blower, without the applicant having agreed to that status being disclosed, the Parliament did infringe Article 4(1) of the internal rules.

181In the light of the foregoing the third plea, alleging breach of the applicant’s confidentiality and status as a whistle-blower, must be upheld.

182It follows from the foregoing that the Parliament infringed Articles 22a to 22c of the Staff Regulations by merely discharging the applicant from his duties and not offering him sufficient protection in accordance with those provisions.

183The claims for annulment directed against the implied decision must therefore be upheld in so far as, by that decision, the Parliament refused to adopt, in response to the applicant’s request of 10 January 2022, protective measures under Articles 22a to 22c of the Staff Regulations beyond merely discharging him from his duties.

– The legality of the decision of 22 February 2022

184By his first plea directed against the decision of 22 February 2022, the applicant relies on a ‘breach of the principle of equal treatment and non-discrimination, unlawful positive discrimination between APAs and unlawful negative discrimination with other whistle-blowers, infringement of Articles 22a to 22c of the Staff Regulations, infringement of Article 24 of the Staff Regulations and a breach of the duty to have regard to the welfare of staff and a breach of the protection afforded to whistle-blowers and of the right to proceedings which, at the very least, have the appearance of objectivity’. By that plea, the applicant essentially raises complaints based, respectively, on infringement of Articles 22a to 22c and Article 24 of the Staff Regulations, breach of the principle of equal treatment and breach of the duty to have regard to the welfare of staff.

185By his second plea directed against the decision of 22 February 2022, the applicant relies on an ‘abuse of process in order to enable the administration to shirk its obligations’.

– The first plea, alleging breach of the principle of equal treatment, infringement of Articles 22a to 22c and Article 24 of the Staff Regulations and breach of the duty to have regard to the welfare of staff

186The applicant submits that he does not contest per se the legality of the rules governing relationships between any APA and a Member, rather that he criticises the Parliament for having failed to adopt rules which allow APAs to be protected on the same basis as other officials and members of staff working within the Parliament who report unlawful conduct. He also alleges that the Parliament treated him like other APAs who have not reported irregularities. This constitutes unequal treatment contrary to Article 20 of the Charter of Fundamental Rights of the European Union. It is for the Parliament to show that he has not been discriminated against or to justify the discrimination.

187In any case, the Parliament cannot justify the total absence of any protection arising from the applicant’s status as a whistle-blower and should, inter alia, provide for another type of protection to be implemented or, at the very least, the implementation of compensatory mechanisms, as otherwise the effectiveness of the protection afforded by the Staff Regulations to whistle-blowers is reduced. The applicant observes that the only protective measure adopted in response to the harassment suffered by him merely operated to his detriment, since the chair of the delegation, to whom he had been transferred, did not actively engage with him.

188According to the applicant, adequate protection would have involved transferring him to a different post so as not to deprive him of the right to be able to seek the renewal of his contract like any other APA or, alternatively, allowing him to benefit from a special renewal procedure offering greater protection of his interests connected with his status as a whistle-blower. That lack of an adequate framework for APAs meant that, since he had not been under the supervision of a Member for long enough, no Member requested that his contract be renewed.

189In the reply, the applicant states that he does not claim to be entitled to the renewal of his contract or that he sought to conclude a new contract of a different kind within the Parliament. He simply considers that a procedure should have been implemented to allow his situation and the potential renewal of his contract to be examined.

190The Parliament disputes the applicant’s line of argument.

The applicant claims in essence that his contract was not renewed on account of the retaliatory actions adopted by the leadership of the delegation, as a result of his complaint of harassment and the reports of irregularities which he made pursuant to Article 22a of the Staff Regulations. By taking the position that his contract could not be renewed unless a request was made by one or more Members, the Parliament breached the principle of equal treatment, infringed Articles 22a to 22c and Article 24 of the Staff Regulations and failed to comply with its duty to have regard to the welfare of staff.

192

As a preliminary point, it must be recalled that the applicant concluded a contract as an APA with the grouping for the period from 26 August 2019 to 28 February 2022.

193

Under Article 2(1) of the implementing measures for Title VII of the CEOS, ‘Members may form a de facto grouping with a view to sharing the services of one or more assistants’. In view of the conclusions drawn in paragraphs 133 and 134 above, EU law does not provide for the renewal of an APA contract if a request is not made by the grouping or by one of its Members.

194

In the present case, since the applicant’s APA contract had been concluded at the request of the grouping, and not exclusively at the request of the Member in question, there was nothing, in principle, to prevent that contract from being renewed at the request of the grouping or of one of its Members and the applicant continuing his duties as an APA with a different Member of the grouping.

195

However, as the Parliament argues, the AECE did not receive any request to that effect from the grouping or one of its Members, and therefore the applicant’s contract could not be renewed without infringing Article 21 of the Statute of Members.

196

Since a request for the renewal of the applicant’s APA contract had not been submitted by a Member, the AECE rightly considered that it could not renew it without infringing the applicable rules, in particular Article 21(1) of the Statute of Members (paragraphs 129 to 134 above).

197

That finding is without prejudice to the Parliament’s duty to take all the necessary measures to ensure that the applicant does not suffer any prejudicial effects on the part of the institution on account of his status as a whistle-blower, pursuant to Article 22a(3) of the Staff Regulations (see paragraph 143 above).

198

As regards the complaint based on a breach of the principle of equal treatment, the applicant claims that the Parliament did not treat him like other APAs who have not reported irregularities.

199

It must be observed that the principle of equal treatment, as laid down in Article 20 of the Charter of Fundamental Rights, is a general principle of EU law, which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. A difference in treatment is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and is proportionate to the aim pursued by the treatment concerned (see judgment of 30 November 2023, MG v EIB, C‑173/22 P, EU:C:2023:932, paragraph 45 and the case-law cited).

200

It is true, in that regard, that the applicant and APAs who have not reported financial irregularities are treated in the same way as regards the renewal of their contracts although they are in different situations. However, the fact that those different situations are treated in the same way is justified by the bond of trust which must exist between an APA and the Member for whom he or she works and by the independence enjoyed by political groupings vis-à-vis their internal organisation (see paragraphs 131 to 133, 153 and 193 above).

201

That complaint must therefore be dismissed.

As for the complaint based on a failure to comply with the duty to have regard to the welfare of staff, that duty cannot require the Parliament, in breach of the rule contained in Article 21 of the Statute of Members under which Members may freely choose their personal staff, to renew an APA’s contract, even where the latter has acquired the status of a whistle-blower.

203

The first plea, alleging breach of the principle of equal treatment, infringement of Articles 22a to 22c and Article 24 of the Staff Regulations and failure to comply with the duty to have regard to the welfare of staff, must therefore be dismissed.

– The second plea, alleging an abuse of process

204

The applicant considers that, by taking the view that he had not adduced evidence of a causal link between the retaliatory acts and the decision not to renew his contract, the Parliament did not take a position on his argument, in paragraph 118 of his complaint, that a whistle-blower does not have to produce evidence of an abuse of process, rather it is for the administration to show that the decision not to renew the contract is unconnected with his status as a whistle-blower. The Parliament opted to apply the standard renewal process to the applicant.

205

In the reply, the applicant states that the Parliament furnishes no evidence that an internal investigation was opened into the reported irregularities and the retaliatory actions to which he was subject. In addition, it is for the Parliament to show that there is no connection between the decision not to renew his contract and his status as a whistle-blower, especially since, in the present case, the applicant relied on a sufficient body of evidence and the retaliatory actions to which he was subject form the subject matter of an investigation by OLAF.

206

The Parliament disputes the applicant’s line of argument.

207

By his line of argument, the applicant criticises, in essence, the fact that the Parliament has failed to demonstrate that the non-renewal of this contract was not vitiated by an abuse of process further to the reports made by him as a whistle-blower pursuant to Articles 22a to 22c of the Staff Regulations.

208

That complaint essentially overlaps with the complaint analysed in the context of the first plea directed against the decision of 22 February 2022 above.

209

Assuming that the applicant is actually relying on an abuse of process, such a complaint must be dismissed.

210

According to settled case-law, abuse of process is a particular expression of the concept of misuse of powers, which has a precise scope referring to the use by an administrative authority of its powers for a purpose other than that for which they were conferred upon it. A measure is vitiated by misuse of powers only if appears on the basis of objective, relevant and consistent evidence to have been taken with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Staff Regulations for dealing with the circumstances of the case (see judgment of 16 June 2021, CE v Committee of the Regions, T‑355/19, EU:T:2021:369, paragraph 59 and the case-law cited).

211

In addition, in the present case, the applicant does not explain how the decision of 22 February 2022, adopted in accordance with Article 21 of the Statute of Members and in observance of the contract renewal procedure, was adopted for a purpose other than that provided for by that procedure.

212

It follows that the second plea, alleging an abuse of process, must be rejected, assuming that it can be dealt with separately from the first plea directed against the decision of 22 February 2022.

213

The claims for annulment directed against the decision of 22 February 2022 must therefore be dismissed.

The claims for compensation

214

The applicant argues that his claims for compensation are connected with all the wrongful acts committed by the Parliament on account of the infringement of Articles 22a to 22c of the Staff Regulations, arising from the lack of sufficient protective measures, inadequate accompanying and assistance measures in the context of the procedure for renewal of his contract and the breach of the confidentiality of his complaint.

215

First, with regard to the dismissal of the claim for damages in so far as it concerns the measure discharging him from his duties, the applicant states that the did not challenge that measure because he had no interest in being returned to his duties because the person to whom he had been transferred was concerned by his email of 10 January 2022. He did, however, complain to the Director-General and to the Secretary-General about the inadequacy of the measure adopted pursuant to Article 24 of the Staff Regulations. The discharge measure cannot be characterised retrospectively as a protective measure for the benefit of a whistle-blower whilst the seriousness of his allegations had not yet been verified (see paragraph 37 above).

216

Second, the applicant refers to matters related to the claims for annulment concerning the breach of the confidentiality attached to his status as a whistle-blower, which culminated in the non-renewal of his contract and also adversely affected his career prospects in his State of origin.

217

The applicant seeks in that regard compensation of EUR 200 000 ex æquo et bono in respect of the irreversible consequences for his mental health, his professional reputation, his relationship and the career which he was forging.

218

Third, as for the consequences of the decision of the 22 February 2022, the applicant reserved the right, in his complaint, to seek compensation at a later stage for the harm suffered on account of the illegality of that decision, which would not be sufficiently remedied by annulling the decision. The applicant observes, in that regard, that he did not request that his contract be renewed automatically, but rather relied on the fact that he had been denied the right to seek such a renewal.

219

The Parliament refers to the considerations related to the claims for annulment concerning the unsubstantiated nature of the applicant’s claims regarding the alleged failure to give genuine effect to the duty of protection and the alleged breach of the duty of confidentiality. Therefore, the first condition for the European Union to be held liable, namely the unlawful nature of the Parliament’s conduct, is not met.

220

In any case, first, the applicant has not adduced evidence of the alleged harm to his mental health, professional reputation, relationship or career. In addition, by referring to all the damages set out in his complaint, the applicant does not comply with Article 76(d) of the Rules of Procedure.

221

The Parliament adds that the evidence produced by the applicant in that regard in the reply is inadmissible, since the delay in their submission is not justified, contrary to what is provided for in Article 85(2) of the Rules of Procedure.

222

Second, the applicant provides no indication of the causal link between the alleged damage and any illegal conduct by the administration. With regard, specifically, to the alleged breach of the duty of confidentiality, the applicant himself shared information relating to the financial irregularities with several people. Furthermore, that alleged breach occurred after the applicant’s request reporting the alleged retaliation intended to prevent his contract from being renewed.

223

Lastly, as regards the harm alleged by the applicant as a result of the non-renewal of his contract, the Parliament interprets the claim for compensation as not relating to that decision in the context of these proceedings.

224

It should be recalled that, in order for liability to arise on the part of an institution, organ or body of the European Union, a number of conditions must be met: the conduct of which it is accused must be unlawful, actual damage must have been suffered and there must be a causal link between the alleged conduct and the damage pleaded, those three conditions being cumulative (see judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 47 and the case-law cited).

Admissibility of the claims for compensation

225

The Parliament argues that the applicant’s claims for compensation related to allegedly unlawful non-decision-making conduct are inadmissible, because the applicant had not previously submitted a request under Article 90(1) of the Staff Regulations seeking damages, followed by a complaint in the event that that request were refused.

226

It follows from case-law that, where there is a direct link between an action for annulment and a claim for compensation, the latter is admissible as incidental to the action for annulment, without necessarily having to be preceded both by a request to the administration for compensation for the damage allegedly suffered and by a complaint challenging the validity of the implied or express rejection of that request (see judgment of 22 November 2018, Brahma v Court of Justice of the European Union, T‑603/16, EU:T:2018:820, paragraph 227 (not published and the case-law cited)).

227

Here, the applicant sought compensation for the damage suffered by him for the reasons set out in paragraph 214 above. In addition, the unlawful conduct by the Parliament upon which the applicant relies in support of his claims for compensation is directly linked to the implied decision and to the decision of 22 February 2022. Moreover, the applicant lodged a complaint against the implied decision and against the decision of 22 February 2022 (see paragraph 17 above).

228

The plea of inadmissibility raised by the Parliament must therefore be dismissed.

Unlawfulness of the Parliament’s conduct

229

With regard to the first condition, which concerns the unlawfulness of the Parliament’s conduct, the applicant relies, in essence, on all the wrongful acts committed by the Parliament on account of the infringement of Articles 22a to 22c of the Staff Regulations.

230

It is apparent from the examination of the claims for annulment that the Parliament failed to observe certain protection rules connected with the applicant’s status as a whistle-blower, namely Article 5 of the internal rules on the duty to provide information (see paragraphs 85 to 102 above), Article 22a of the Staff Regulations and Article 3 and Article 4(2) of the internal rules, which concern respectively protection against retaliation, the duty to provide advice and assistance and the right to request to transfer to another post (see paragraphs 103 to 145 above) and, lastly, Article 4(1) of the internal rules, which relates to the duty of confidentiality (see paragraphs 173 to 181 above).

231

The first condition relating to the unlawfulness of the Parliament’s conduct is therefore satisfied.

232

The applicant alleges damage to his mental health, his professional reputation, his relationship and the career which he was forging; he estimates the amount of that damage to be EUR 200 000 ex æquo et bono.

233

It must however be observed, as the Parliament notes, that, in the application, the applicant failed to produce any evidence capable of determining the reality or the extent of the material harm which he alleges. In particular, that material harm, such as the damage to his career which the applicant claims, is insufficiently substantiated. The Court will therefore confine itself to considering the non-material damage. In addition, by referring to all the damage set out in his complaint, the applicant does not comply with the requirements under Article 76(d) of the Rules of Procedure.

234

In the reply, the applicant produced new evidence with a view to establishing that the damage which he alleges did actually occur. However, as the Parliament argues, he provided no justification for the late submission of that evidence, contrary to what is provided for in Article 85 of the Rules of Procedure (see paragraph 68 above). That evidence must therefore be dismissed as inadmissible.

235

It must be recalled that, according to settled case-law, the annulment of an unlawful measure can constitute, in itself, adequate and, in principle, sufficient compensation for all non-material damage which that measure may have caused, except where the applicant shows that he or she has suffered non-material damage which is incapable of being entirely repaired by that annulment (see, to that effect, order of 3 September 2019, FV v Council, C‑188/19 P, not published, EU:C:2019:690, paragraph 26, and judgment of 28 April 2021, Correia v EESC, T‑843/19, EU:T:2021:221, paragraph 86).

236

However, it is clear from case-law that, in order to ensure, in the interest of the applicant, that the judgment setting aside the decision is effective, the EU Courts may exercise the unlimited jurisdiction conferred on them in disputes of a financial nature and may order, even of their own motion, the defendant institution to pay compensation for the damage caused by its wrongful act. In such a case, it is for the Court, taking account of all of the circumstances of the case, to assess the damage suffered by the interested parties ex æquo et bono (see judgment of 28 May 2020, Cerafogli v ECB, T‑483/16 RENV, not published, EU:T:2020:225, paragraph 447 and the case-law cited).

237

In that regard, case-law accepts that the feeling of injustice and distress caused by the fact that an individual is required to undergo a pre-contentious procedure and then a contentious procedure in order to ensure recognition of his or her rights constitutes harm which may be inferred from the mere fact that the administration acted unlawfully. That harm must give rise to reparation where it is not compensated by the satisfaction resulting from the annulment of the act in question (see judgment of 28 May 2020, Cerafogli v ECB, T‑483/16 RENV, not published, EU:T:2020:225, paragraph 448 and the case-law cited).

238

In the present case, the following factors must be taken into account in connection with the non-material damage suffered by the applicant.

239

First, the Parliament does not contest the applicant may have suffered considerable anxiety as a result of the complaints he made.

240

Second, the annulment of the implied decision, in so far as by that decision the Parliament refused to grant the applicant, in response to the latter’s request of 10 January 2022, a further protective measure in addition to the measure discharging him from his duties, cannot in itself constitute sufficient compensation. The consequences of the various unlawful acts committed by the Parliament as a result of the failure to adopt sufficient protective measures arising from the applicant’s status as a whistle-blower, in particular those on his health, his professional reputation and his future career in European political circles, cannot easily be corrected (see, to that effect, judgment of 16 December 2020, VP v Cedefop, T‑187/18, not published, EU:T:2020:613, paragraph 205 and the case-law cited).

241

The applicant must therefore be found to have suffered non-material damage which cannot be repaired simply by annulling the implied decision in so far as, by that decision, the Parliament refused to grant him, in response to his request of 10 January 2022, a further protective measure in addition to discharging him from his duties.

Causal link

242

With regard to the existence of a causal link, it is established, in the present case, that the various unlawful acts committed by the Parliament are the main reason for the non-material damage suffered by the applicant. The Parliament does not contest that the applicant may have suffered considerable anxiety on account of the complaints made by him.

243

With regard, more specifically, to the breach of the duty of confidentiality arising from the email of 13 January 2022, the Parliament contends that it cannot have been the source of the harm caused to the applicant, since the applicant shared information relating to the financial irregularities with persons not subject to Article 22a of the Staff Regulations, inter alia at the meeting on 31 May 2021.

244

However, a distinction must be drawn, as the applicant does, between, on the one hand, the fact he drew the attention of the chair of the delegation to the irregularities and harassment committed by the Member in question in May 2021 and, on the other hand, the fact that that chair learned by the email from the Director-General of 13 January 2022 that the applicant made complaints outside the grouping, to the Director-General and to OLAF (see paragraph 167 above). The Parliament cannot therefore contend that the applicant revealed his status as a whistle-blower within the grouping.

245

It is true, as the Parliament argues, that it is apparent from the applicant’s email of 10 January 2022 that he complained of the retaliation suffered not only as a result of the complaint he had made within his grouping, but also the complaints which he had made to the Directorate-General for Personnel and to OLAF. It could be inferred from the foregoing that the retaliatory actions complained of by the applicant preceded the sending of the email of 13 January 2022.

246

However, the fact remains that, as found in paragraph 180 above, the sending of the email of 13 January 2022 to the chair of the delegation without the applicant’s consent was contrary to Article 4(1) of the internal rules.

247

In the light of the foregoing, the causal link between the non-material damage suffered by the applicant and the unlawful acts committed by the Parliament is sufficiently established.

248

In the circumstances of the present case, the non-material damage suffered by the applicant on account of the various unlawful acts committed by the Parliament must be assessed, ex æquo et bono, at EUR 10 000.

249

In the light of all the foregoing, the implied decision must be annulled in so far as, by that decision, the Parliament refused, in response to the applicant’s request of 10 January 2022, to adopt a further protective measure in addition to the measure discharging him from his duties, the claims for compensation must be upheld in part, in the amount of EUR 10 000, and the action must be dismissed as to the remainder.

The requests for measures of organisation of procedure and of inquiry

250

The applicant asks the Court, in the event that it is unconvinced that the Parliament’s restrictive interpretation of Articles 22a to 22c of the Staff Regulations is unlawful, to ask OLAF, pursuant to Article 89 of the Rules of Procedure, to explain how those rules should be applied, in particular as regards the acknowledgment of receipt of a request made on the basis of Article 22a of the Staff Regulations, the contact which must be made with OLAF and how a staff member who has submitted such information is to be protected.

251

In addition, the applicant proposes that the following measures are adopted as measures of inquiry based on Article 88 and Article 91(b) of the Rules of Procedure, so as to add to the file:

–the Parliament’s response to OLAF’s request for information and the response to the communication from OLAF concerning the case relating to the irregularities reported and any other investigation which might pertain to the applicant;

–evidence of the alleged examination, by the Director-General’s advisors, of the information communicated by the applicant in his capacity as a whistle-blower in his request of 12 July 2021;

–evidence of the date on which the record of the applicant’s meeting with the AECE on 3 February 2022 were drafted and entered into the Parliament’s electronic management system for administrative documents;

–the administrative investigation report drafted prior to the sanction imposed on the Member in question by the President of the Parliament.

252

The Parliament considers that the applicant’s request should be refused.

253

It must be borne in mind that it is for the Court to decide on the need to make use of its power to adopt measures of organisation of procedure or measures of inquiry to supplement the information available to it, given that whether or not the evidence is sufficient is a matter to be appraised by it alone (see judgment of 7 September 2022, WT v Commission, T‑91/20, not published, EU:T:2022:510, paragraph 183 and the case-law cited).

254

With regard to the request set out in paragraph 250 above, that request need not be granted since it is not for OLAF to explain how the rules for the protection of whistle-blowers should be applied but rather for the General Court or the Court of Justice to do so, by interpreting the relevant provisions of the Staff Regulations.

255

Furthermore, none of the documents referred to in paragraph 251 is needed in order to adjudicate on the present action.

256

The requests for measures of organisation of procedure and inquiry made by the applicant must therefore be dismissed.

Costs

257

Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, according to Article 135(1) of those same Rules, 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 own costs, or even that he is not to be ordered to pay any.

258

In the circumstances of the present case, given its specific context and in particular the infringements of the rules on the protection of the status of whistle-blower committed by the Parliament, the Court decides, on an equitable assessment of the matter, that the Parliament, in addition to bearing its own costs, is to pay those incurred by the applicant.

On those grounds,

hereby:

da Silva Passos

Gervasoni

Półtorak

Reine

Pynnä

Delivered in open court in Luxembourg on 11 September 2024.

[Signatures]

Contents

Background to the dispute

Forms of order sought

Law

The claims for a declaration

The claims for annulment

The subject matter of the claims for annulment

The legality of the implied decision

– The first plea, alleging infringement of the protection rules connected with the applicant’s status as a whistle-blower

(1) The arguments of the parties relating to the first part of the first plea, based on the applicant’s submission of a request pursuant to Article 22a of the Staff Regulations for recognition of his status as a whistle-blower and protection on that basis

(2) The arguments of the parties relating to the second part of the first plea, based on the improper conduct of the procedure set out in Articles 22a to 22c of the Staff Regulations and on the infringement of Article 3 of the internal rules

(3) Admissibility of certain annexes

(i) Admissibility of Annexes C.6 and C.7

(ii) Admissibility of Annex E.1 and the letter accompanying it

(iii) Admissibility of Annexes F.1 and F.2

(4) The lack of formal recognition of the applicant’s status as a whistle-blower

(5) The failure to notify the applicant of the action taken on his complaints

(6) The inadequacy of the protective measures adopted under Articles 22a to 22c of the Staff Regulations

(i) The burden of proof as to the adequacy of the protective measures

(ii) The adequacy of the protective measures

(iii) Conclusions on the complaint based on the inadequacy of the protective measures adopted by the Parliament

–The discharge measure

–The possibility of renewing the applicant’s APA contract

–The possibility of reassigning the applicant to another post within the Parliament

–The duty to provide advice and assistance

–The second plea, alleging, in essence, first, infringement of Article 22b of the Staff Regulations and of the internal rules and, second, the inadequacy and insufficiency of those rules

–The third plea, alleging a breach of confidentiality and of the protection of the applicant’s identity as a whistle-blower

The legality of the decision of 22 February 2022

–The first plea, alleging breach of the principle of equal treatment, infringement of Articles 22a to 22c and Article 24 of the Staff Regulations and breach of the duty to have regard to the welfare of staff

–The second plea, alleging an abuse of process

The claims for compensation

Admissibility of the claims for compensation

Unlawfulness of the Parliament’s conduct

Causal link

The requests for measures of organisation of procedure and of inquiry

Costs

—

Language of the case: French.

1Confidential information redacted.