Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

27 October 2016 (*)

(Appeal — Civil service — Officials — Psychological harassment — Duty of the administration to provide assistance — Article 24 of the Staff Regulations — Request for assistance — Provisional distancing measures — Duty to have regard for the welfare of staff — Responsibility — Claim for damages — Decision rejecting the administrative complaint — Distortion of the evidence — Error of law)

In Case T‑309/15 P,

APPEAL against the judgment of the European Union Civil Service Tribunal (First Chamber) of 26 March 2015, CW v Parliament (F‑124/13, EU:F:2015:23), seeking the setting aside of that judgment,

CW, official of the European Parliament, residing in Brussels (Belgium), represented by C. Bernard-Glanz, lawyer,

appellant,

the other party to the proceedings being

European Parliament, represented by M. Dean and E. Taneva, acting as Agents,

defendant at first instance,

THE GENERAL COURT (Appeal Chamber)

composed of M. Jaeger, President, M. Prek (Rapporteur) and G. Berardis, Judges,

Registrar: E. Coulon,

gives the following

Judgment

1        By her appeal, lodged pursuant to Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the appellant, CW, seeks, in essence, (i) the setting aside of the judgment of the European Union Civil Service Tribunal (First Chamber) of 26 March 2015, CW v Parliament (F‑124/13, EU:F:2015:23) (‘the judgment under appeal’), rejecting her claim for annulment of the decision of the European Parliament of 8 April 2013 rejecting her request for assistance submitted as a result of the psychological harassment to which she considers she has been subjected by her hierarchical superiors and of the decision of the appointing authority of 23 October 2013 rejecting her administrative complaint, and her claim for compensation for the material damage suffered, and (ii) following that setting aside, the upholding of those claims by the General Court.

 Facts giving rise to the dispute

2        The facts giving rise to the dispute are set out in paragraphs 6 to 24 of the judgment under appeal, as follows:

‘6      On 6 October 2003, the applicant was recruited as a member of the Parliament’s auxiliary staff. She was initially assigned to the Slovak Interpretation Unit in the Directorate for Interpretation of the DG (Directorate-General) for Infrastructure and Interpretation, now the DG for Interpretation and Conferences. From 8 October 2004, she was employed as a temporary staff member in that Unit.

7      On 1 October 2008, the applicant was appointed as a probationary official of the Parliament and was assigned to the Czech Interpretation Unit (“the Unit”). She was established in her post on 1 July 2009.

8      From 2008 to 2010, the applicant and Ms H. were Unit colleagues. When the post of Head of Unit became available, both women submitted applications. At the end of the selection procedure, the applicant’s application was rejected in favour of the application submitted by Ms H. (“the Head of Unit”), who was appointed Head of Unit on 17 May 2010.

9      Relations between the applicant and the Head of Unit deteriorated, particularly following a Unit meeting which was held on 23 May 2011 (“the meeting of 23 May 2011”).

...

16      On 5 February 2013, pursuant to Article 90(1) of the Staff Regulations, the applicant submitted a request to the Parliament for assistance under Article 24 of those regulations (“the request for assistance”). In support of that request, the applicant provided a detailed description of 14 incidents or events which, in her view, whether taken individually or cumulatively, constituted psychological harassment by her Head of Unit and her Director. ...

17      By the request for assistance, in which she regretted the fact that, despite her demands and reminders, neither the Chairman [of the Advisory Committee on Harassment] nor any other member [of that Committee] had contacted her following her e-mail of 19 February 2012, the applicant asked the Parliament to reassign her Head of Unit and/or her Director to another post, or to adopt a decision that would have the equivalent effect of protecting her from their abuses, and to open a full-scale inquiry into the management methods and conduct of her superiors.

...

19      By a decision of 8 April 2013, notified to the applicant on 10 April 2013, the appointing authority (the Director-General for Personnel), after examining the request for assistance and taking account of the information relating to the situation in the Unit of which it had become aware during its examination of a complaint of harassment submitted by a colleague from that Unit (CQ) (see judgment in CQ v Parliament, F‑12/13, EU:F:2014:214), refused to grant the applicant’s request for assistance (“the decision refusing assistance”).

20      In that connection, the appointing authority expressed its regret at the applicant’s refusal to approach the Advisory Committee on Harassment, as that refusal meant that the appointing authority had been deprived of what would for it have been a “valuable opinion on [the applicant’s] allegations[, given that the Advisory] Committee [on Harassment was] best placed to [conduct] the full-scale inquiry that [the applicant was requesting]”.

21      That being so, notwithstanding the fact that the Advisory Committee on Harassment had not been approached, the appointing authority decided, after examining the copious documents submitted by the applicant and after acquiring information on the situation in the Unit from another investigation carried out in that Unit by the Committee, to refuse to grant the applicant’s request for assistance. Examining each of the events at issue set out by the applicant in her request, the appointing authority considered that they were minor, had already been mentioned in the context of the applicant contesting her staff report for 2011 (“the 2011 staff report”), or constituted legitimate decisions or conduct on the part of the appointing authority or the management in response to the applicant’s own conduct.

22      On 9 July 2013, the applicant submitted a complaint pursuant to Article 90(2) of the Staff Regulations against the decision refusing assistance. By decision of 23 October 2013, the appointing authority (the Secretary-General of the Parliament) rejected the complaint for being, at that stage, premature (“the decision rejecting the complaint”). ...

23      Reminding her that, according to case-law, the existence of difficult, even conflictual relations between an official and his superior does not, in itself, constitute proof of psychological harassment, the appointing authority informed the applicant that it had asked the new Chairman of the [Advisory Committee on Harassment], in office since 4 July 2012, to contact her to explain the procedure before [that Committee] so as to enable her to decide, in the light of the information provided, whether or not to follow that procedure.’

 Procedure at first instance and the judgment under appeal

3        By application lodged at the Registry of the Civil Service Tribunal on 19 December 2013, the applicant brought an action, registered as Case F‑124/13, seeking (i) annulment of the decision refusing assistance and the decision rejecting the complaint, (ii) an order for the European Parliament to compensate her for the non-material damage which she had suffered, amounting to EUR 50 000, and for the material damage suffered, amounting to a quarter of the medical fees incurred owing to the deterioration in her state of health, and (iii) an order for the Parliament to pay the costs.

4        The Parliament contended that the action should be dismissed as unfounded and that the applicant should be ordered to pay the costs.

5        By the judgment under appeal, the Civil Service Tribunal examined the two pleas in law raised by the applicant, the first alleging infringement of Article 12a of the Staff Regulations, a manifest error of assessment and misuse of powers, breach of the duty to have regard for the welfare of staff and breach of the duty to provide assistance, and infringement of Article 31(1) of the Charter of Fundamental Rights of the European Union, and the second alleging breach of the duty to provide assistance, infringement of the principle of sound administration, breach of the duty to have regard for the welfare of staff, and infringement of Article 31(1) of the Charter of Fundamental Rights, and dismissed the action in its entirety.

6        Concerning the first plea in law, the Civil Service Tribunal first of all noted, in paragraph 33 of the judgment under appeal, that, ‘in the present case, the statement of reasons given in the decision rejecting the complaint [differed] from the statement of reasons given in the decision refusing assistance, with the result that the claim for annulment of the decision rejecting the complaint [did] not lack independent content, and it [was] therefore necessary for the Tribunal to give a ruling on the substance of that claim’. It also stated that ‘the decision rejecting the complaint [clarified] certain aspects of the statement of reasons for the decision refusing assistance’ and that, ‘consequently, in view of the evolving nature of the pre-litigation procedure, the statement of reasons for the decision on the complaint [also had to be] taken into account in the review of legality of the decision refusing assistance, since that statement of reasons [was] deemed to cover the latter act also (see judgment in Mocová v Commission, F‑41/11, EU:F:2012:82, paragraph 21)’.

7        Next, having made reference, in paragraphs 36 to 44 of the judgment under appeal, to the case-law relating to the extent of the duty to provide assistance in cases of allegations of harassment, the Civil Service Tribunal analysed the substance of the first plea in law, examining each of the events listed by the applicant in chronological order in the light of Article 12a of the Staff Regulations before examining those events cumulatively (paragraph 49 of the judgment under appeal). First, it rejected all of the applicant’s allegations, considering, in paragraphs 50 to 116 of that judgment, that none of the events or evidence which she had submitted, taken individually, constituted psychological harassment. Second, in paragraph 117 of that judgment, it held that, ‘taken as a whole, ... the events at issue ... certainly [revealed] a conflictual relationship in a difficult administrative context, but [were] not evidence of acts of an abusive or deliberate nature, the documented statements and behaviour showing at most a clumsy management of the conflictual situation by the applicant’s superiors, and not a deliberate intention to act abusively toward her (see, along the same lines, judgment in CQ v Parliament, EU:F:2014:214, paragraph 128)’. Lastly, it consequently rejected the first plea in law as unfounded.

8        Concerning the second plea in law, the Civil Service Tribunal observed:

‘146      In view of the evidence provided by the applicant and the evidence known to the Parliament in connection with the 2011 staff report and with CQ’s complaint of harassment, ... in the circumstances, the appointing authority was in a position to state in the decision refusing assistance that it had, at that stage, sufficient awareness of the reality and the significance of the facts alleged by the applicant to be able to conclude that those facts did not constitute psychological harassment, as the [Civil Service Tribunal] itself has confirmed in its examination of the first plea in law.

147      Therefore, in the circumstances of the present case, in which the conducting of a new inquiry would have involved questioning the same actors that had already been heard in the course of the inquiry carried out following CQ’s complaint of harassment, regarding events at least some of which were identical to those referred to by CQ and which would not necessarily have shed any further light in relation to the already sufficiently exhaustive evidence submitted to the appointing authority by the applicant, ... in not ordering the launching of “a full-scale inquiry into [the] management methods [of her Head of Unit and the Director] and [their] behaviour towards [the applicant]”, the Parliament [had not made] a manifest error of assessment in its choice of measures and methods for applying Article 24 of the Staff Regulations, in respect of which it [had] a broad discretion, and, accordingly, [had not infringed] that provision.’

9        On the basis of the case-law concerning the appointing authority’s broad discretion in its choice of measures and methods for applying Article 24 of the Staff Regulations, the Civil Service Tribunal concluded that the second plea in law had to be rejected as unfounded. In the circumstances of the present case, first, the conducting of a new inquiry would not have been the most appropriate measure and, second, the direct approaching of the Advisory Committee on Harassment by the appointing authority ‘would ultimately have gone against the [wishes of the applicant, who had lost all confidence in that Committee]’ (paragraphs 147 to 150 of the judgment under appeal).

10      In paragraph 151 of the judgment under appeal, the Civil Service Tribunal explained that, ‘while in the decision refusing assistance the request for assistance [had been] refused on the merits following a detailed examination of the events at issue mentioned by the applicant, the complaint, by contrast, [had been] rejected chiefly on the ground that it was premature since, in view of the applicant’s desire to have a full-scale inquiry conducted, it was for her to address the Advisory Committee on Harassment beforehand, that being the appropriate body to conduct an inquiry of that kind’.

11      Regarding the statement of reasons for the decision rejecting the complaint, the Civil Service Tribunal held:

‘154      ... in rejecting the complaint on the ground that it was, allegedly, premature in so far as the applicant should first have relied on the Advisory Committee on Harassment, the appointing authority based its decision on an incorrect ground which could be such as to mislead staff members as to the respective competences and responsibilities of the Advisory Committee on Harassment and the appointing authority in the area of psychological harassment as set out in paragraphs 134 to 138 above.

155      ... However, an incorrect ground of that kind [was] not such as to undermine the legality of the decision rejecting the complaint or the decision refusing assistance: in reminding the applicant in [the later decision] that, according to case-law, the existence of difficult, even conflictual relations between an official and his superiors does not, in itself, constitute proof of psychological harassment, the appointing authority sought to endorse, with regard to the substance, albeit in the alternative, the detailed examination which had been carried out in the decision refusing assistance, or, at the very least, did not seek to undermine the results of that examination. That is also what the Parliament contended, in particular at the hearing. Moreover, irrespective of the outcome of the present action, the [Civil Service Tribunal found] that the Advisory Committee on Harassment [was] entrusted with a task of conciliation and mediation, which could be suitable for resolving the difficulties encountered by the applicant (even if those difficulties do not constitute harassment within the meaning of Article 12a of the Staff Regulations) with a view to restoring a “peaceful and productive working environment” pursuant to Article 5 of the Internal Rules.’

12      Lastly, as the claim for annulment had been rejected as unfounded and was closely associated with the claim for damages, in paragraphs 159 and 160 of the judgment under appeal the Civil Service Tribunal rejected the latter claim. However, it ordered the Parliament to pay half of the costs incurred by the applicant, because of the error by which it was considered that the decision rejecting the complaint had been vitiated.

 Procedure before the General Court and forms of order sought

13      By application lodged at the Court Registry on 5 June 2015, the appellant brought the present appeal.

14      On 29 September 2015, the Parliament lodged its response.

15      By letter lodged at the Court Registry on 23 October 2015, the appellant requested permission, pursuant to Article 201(1) of the Rules of Procedure of the General Court, to lodge a reply. By decision of 9 November 2015, the President of the Appeal Chamber granted that request. The appellant lodged her reply on 10 December 2015. The Parliament lodged its rejoinder on 27 January 2016.

16      Acting upon a proposal from the Judge-Rapporteur, the General Court (Appeal Chamber) held that no request for a hearing had been submitted by the parties within three weeks after service of notification of the close of the written part of the procedure and decided to rule on the appeal without an oral part of the procedure, in accordance with Article 207(2) of the Rules of Procedure.

17      The appellant claims that the Court should:

–        declare the appeal admissible;

–        set aside the judgment under appeal;

–        annul the decision refusing assistance and the decision rejecting the complaint;

–        award damages;

–        order the Parliament to pay the costs.

18      The Parliament contends that the Court should:

–        reject as inadmissible or, in the alternative, as unfounded, the ground of appeal asserting that the Civil Service Tribunal’s finding that no harassment occurred must be rejected as ineffective;

–        dismiss the appeal as unfounded;

–        order the appellant to pay the costs.

 Law

19      In support of the appeal, the appellant puts forward two grounds of appeal, the first alleging that the Civil Service Tribunal distorted the evidence and erred in law in finding that, in the decision rejecting the complaint, the appointing authority had sought to endorse, with regard to the substance, the decision refusing assistance, and the second alleging that the Civil Service Tribunal distorted the evidence and erred in law in considering that the Parliament had not made a manifest error of assessment in its choice of measures and methods for applying Article 24 of the Staff Regulations.

20      Concerning the first ground of appeal, the appellant claims, in essence, that the Civil Service Tribunal distorted the sense of the decision rejecting the complaint and erred in law in holding that that decision clarified certain aspects of the statement of reasons for the decision refusing assistance.

21      According to the appellant, it is apparent from case-law that, in view of the evolving nature of the pre-litigation procedure, it is the statement of reasons for the decision rejecting the complaint which must be taken into account in the review of legality of the initial act adversely affecting the applicant, since that statement of reasons is deemed to cover the latter act (judgments of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraph 59, and 13 June 2012, Mocová v Commission, F‑41/11, EU:F:2012:82, paragraph 21). In the present case, the statement of reasons for the decision rejecting the complaint was not seeking to ‘clarify’ or ‘endorse’ the decision refusing assistance, as the Civil Service Tribunal incorrectly held in paragraphs 33 and 155 of the judgment under appeal, but was based on the premature nature of such a complaint, given that it was impossible for the appointing authority to take a position, at the time that complaint was brought, on whether or not psychological harassment had occurred, as the Advisory Committee on Harassment had not yet conducted an inquiry in that regard. The reference to the applicable case-law in the decision rejecting the complaint was thus nothing more than a simple reminder to the appellant and did not constitute a clarification concerning the position taken by the appointing authority on the non-existence of such harassment.

22      The Parliament opposes the appellant’s arguments.

23      In particular, the Parliament contends that the Civil Service Tribunal (i) correctly considered that both decisions had to be reviewed by the EU judicature, given that they differed in terms of their reasoning and that the second decision was not merely confirmatory of the first decision, (ii) did not distort the sense of the decision rejecting the complaint in considering that the appointing authority had intended by that decision to clarify the decision refusing assistance or, at the very least, not to undermine it, and (iii) correctly, for that reason, considered that the incorrect ground on which the decision rejecting the complaint was based was not capable of undermining the legality of the decision rejecting the complaint or that of the decision refusing assistance. Despite the clumsy wording of the decision rejecting the complaint, that decision clearly constitutes a rejection of the complaint and an endorsement of the decision refusing assistance. Concerning the fact that the decision rejecting the complaint is based on an incorrect ground, the Parliament remarks that the Civil Service Tribunal has already penalised it by ordering it to pay half of the costs incurred by the appellant.

24      As a preliminary point, it should be borne in mind that Article 12a(3) of the Staff Regulations of Officials of the European Union, in the version applicable to the dispute (‘the Staff Regulations’), provides:

‘“Psychological harassment” means any improper conduct that takes place over a period, is repetitive or systematic and involves physical behaviour, spoken or written language, gestures or other acts that are intentional and that may undermine the personality, dignity or physical or psychological integrity of any person.’

25      The first paragraph of Article 24 of the Staff Regulations provides:

‘The Union shall assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties.’

26      In addition, it is apparent from settled case-law that a claim for annulment formally directed against the rejection of a complaint has the effect of bringing before the General Court the act against which the complaint was submitted, where that claim, as such, lacks any independent content (see, to that effect, judgment of 13 December 2012, Commission v Strack, T‑197/11 P and T‑198/11 P, EU:T:2012:690, paragraph 162 and the case-law cited). The decision purely and simply rejecting 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, by itself, a decision which may be challenged (see, to that effect, judgment of 15 July 2004, Valenzuela Marzo v Commission, T‑384/02, EU:T:2004:239, paragraph 36 and the case-law cited).

27      It has also been held that the administrative complaint and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. Consequently, the action before the judicature, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the applicant against which the complaint was submitted, except where the scope of the rejection of the complaint would differ from that of the measure against which that complaint was made. An express decision rejecting a complaint may, in the light of its content, not be confirmatory of the measure contested by the applicant. That is the case where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such circumstances, the rejection of the complaint constitutes a measure subject to review by the judicature, which will take it into consideration when assessing the legality of the contested measure or will even regard it as an act adversely affecting the applicant replacing the contested measure (see judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 32 and the case-law cited).

28      The Civil Service Tribunal held in paragraph 33 of the judgment under appeal that, first, the statement of reasons given in the decision rejecting the complaint differed from the statement of reasons given in the decision refusing assistance, with the result that the claim for annulment of the decision rejecting the complaint did not lack independent content, and that it was therefore necessary for the Tribunal to give a ruling on the substance of that claim. Second, as the decision rejecting the complaint clarified certain aspects of the decision refusing assistance, those elements had to be taken into account in the review of legality of the decision refusing assistance. In addition, it stated in paragraph 155 of the judgment under appeal that, as the appointing authority sought, by the case-law reference included in the decision rejecting the complaint (‘the case-law reference at issue’), to endorse, with regard to the substance, albeit in the alternative, the detailed examination which had been carried out in the decision refusing assistance, or, at the very least, did not seek to undermine the results of that examination, the legality of the decision rejecting the complaint was not undermined by the incorrect ground, concerning the premature nature of the complaint, on which that decision was based.

29      In the present case, it should be noted that, in the decision refusing assistance, the appointing authority (the Director-General for Personnel) took a position in relation to the various events which the appellant had invoked as constituting psychological harassment within the meaning of Article 12a of the Staff Regulations. By contrast, the appointing authority (the Secretary-General of the Parliament) rejected the administrative complaint, considering it to be premature, as the appellant had not yet approached the Advisory Committee concerning the invoked psychological harassment. That decision also includes the case-law reference at issue, according to which the fact that difficult, even conflictual relations exist between an official and his superiors does not, in itself, constitute proof of psychological harassment (judgment of 16 May 2012, AF v Commission, F‑61/10, EU:F:2012:65, paragraph 96). As the two decisions therefore differed with regard to their statement of reasons, the Civil Service Tribunal was correct to consider that the claim for annulment directed against the decision rejecting the complaint did not lack independent content and that it was therefore necessary to give a ruling on the substance of that claim.

30      However, the Civil Service Tribunal’s finding that it was necessary to take into account the elements of the decision rejecting the complaint, which were deemed to clarify the decision refusing assistance, in the review of the legality of the latter decision, is contested by the appellant, in so far as she argues that that finding is based on a distortion of the sense of the decision rejecting the complaint.

31      It is therefore necessary to analyse the decision rejecting the complaint in order to determine whether the Civil Service Tribunal distorted its content.

32      In the decision rejecting the complaint, the appointing authority first of all stated that, having examined the administrative complaint in detail, it had to reject that complaint as premature.

33      Next, the appointing authority recalled that, according to case-law, the administration was required to take measures to implement Article 24 of the Staff Regulations only where the facts giving rise to the request for assistance had been established, and that it had a broad discretion, subject to review by the EU judicature as part of its review of any potential manifest error of assessment, regarding the measures and methods to be used. It added, first, that the question whether that discretion was exercised properly was to be determined on the basis of an administrative inquiry conducted by the administration, second, that, in cases of harassment, inquiries were conducted within the Parliament by the Advisory Committee on Harassment, and, third, that the appellant had been invited by two letters from the Director-General for Personnel (the second constituting the decision refusing assistance) to approach that Committee, which she had not yet done, and that it had therefore not yet been possible to conduct an appropriate inquiry.

34      The case-law reference at issue is set out, in the seventh paragraph of the decision rejecting the complaint, as follows:

‘I would add that the existence of difficult, even conflictual, relations between an official and his/her superior[s] does not, in itself, constitute proof of psychological harassment (Civil Service Tribunal judgment of 16 May 2012, [Case] F‑61/10, AF v Commission, [paragraph] 96). An inquiry by the [Advisory] Committee on Harassment must therefore be conducted before I can conclude whether or not [psychological] harassment has occurred.’

35      It is apparent that, in the seventh paragraph of the decision rejecting the complaint, the appointing authority does not make any explicit reference to the decision refusing assistance. In addition, in the light of the wording of that paragraph and, in particular, the presence of the adverb ‘therefore’ in the sentence immediately following the case-law reference at issue, that reference must be read as an element on which the conclusion immediately following it is based, according to which it was necessary to conduct an inquiry in order to take a position on whether or not the appellant had been subject to psychological harassment.

36      Moreover, it must be pointed out that the seventh paragraph of the decision rejecting the complaint, which is very succinctly worded, is included in a decision which is very clearly and precisely worded and which is essentially based on the premature nature of the complaint and on the lack of sufficient evidence to take a position on the merits of the allegations of harassment raised by the appellant (see paragraphs 32 to 34 above).

37      Accordingly, the case-law reference at issue cannot in any way support the conclusion, forming the subject matter of the decision refusing assistance, that, in the present case, the appellant had not been a victim of psychological harassment.

38      It is apparent from the decision rejecting the complaint that the appointing authority considered that, as no inquiry had been conducted by the Advisory Committee on Harassment and the facts had therefore not been established, the complaint was premature. Thus, the case-law reference at issue was merely intended to support that conclusion by explaining that, without an inquiry, the appointing authority could not take a position on whether psychological harassment had occurred. It must therefore be held that the appointing authority to whom the complaint was made did not take any definitive position on the existence of such psychological harassment.

39      It follows from all of the foregoing that the Civil Service Tribunal distorted the sense of the decision rejecting the complaint and erred in law in considering, incorrectly, in paragraphs 33 and 155 of the judgment under appeal that (i) by that decision, the appointing authority took a position on whether psychological harassment had occurred and sought to endorse, with regard to the substance, albeit in the alternative, the detailed examination which had been carried out in the decision refusing assistance, or, at the very least, did not seek to undermine the results of that examination, and (ii) in so far as it was based on the incorrect ground concerning the supposedly premature nature of the complaint, such a ground was not capable of undermining the legality of the decision rejecting the complaint or that of the decision refusing assistance.

40      Consequently, the first ground of appeal should be upheld and justifies, in itself, the setting aside of the judgment under appeal.

 Consequences of setting aside the judgment under appeal

41      Under Article 4 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), where the General Court sets aside a decision of the Civil Service Tribunal but considers that the state of the proceedings does not permit a decision, it is to refer the case to a chamber other than that which ruled on the appeal.

42      In the present case, the General Court is not in a position to take a position on, inter alia, the claim for damages. Accordingly, as the state of the proceedings does not permit a decision, it is necessary to refer the case to a chamber other than that which ruled on the present appeal so that the General Court may rule at first instance on the action initially brought before the Civil Service Tribunal by CW.

On those grounds,

THE GENERAL COURT (Appeal Chamber)

hereby:

1.      Sets aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 26 March 2015, CW v Parliament (F‑124/13);

2.      Refers the case to a chamber of the General Court other than that which ruled on the present appeal;

3.      Reserves the costs.

Delivered in open court in Luxembourg on 27 October 2016.

[Signatures]

* Language of the case: English.

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