Orders nº T-505/19 of Tribunal General de la Unión Europea, March 31, 2020

• Resolution Date: March 31, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-505/19

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

In Case T-505/19,

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

applicant,

v

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

defendant,

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

THE GENERAL COURT (Eighth Chamber),

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

Registrar: E. Coulon,

makes the following

Order

Background to the dispute

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

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

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

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

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

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

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

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

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

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

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

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

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

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

9 By letter of 5 December 2018, the applicant lodged a complaint with the Secretary-General of the Parliament against the contested act. The applicant stated therein that that act infringed, first, the principle of uniform application of the texts by the EU institutions, since the Commission and the Committee of the Regions had granted special leave of 20 weeks to parents in situations comparable to that of the applicant, second, the principle of equal treatment, third, the principle...