Information;Order — ECLI:EU:T:2019:814
Date: 2019-11-18
Language of the case: English
Court formation: Second Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC;Procedural provisions
Procedure: Staff cases;Application for interpretation of a judgment - inadmissible;Application for revision of a judgment

ORDER OF THE GENERAL COURT (Fifth Chamber) 11 July 2019 (*) (Civil service — Members of the contract staff — Application for revision — No new facts — Inadmissibility) In Case T‑917/16 REV, BP, represented by E. Lazar, lawyer, applicant for revision, the other party to the proceedings being: European Union Agency for Fundamental Rights (FRA), represented by M. O’Flaherty, acting as Agent, and by B. Wägenbaur, lawyer, defendant in the main proceedings, APPLICATION for revision of the judgment of 30 September 2013, BP v FRA (F‑38/12, EU:F:2013:138), THE GENERAL COURT (Fifth Chamber), composed of I. Labucka (Rapporteur), acting as President, A. Dittrich and I. Ulloa Rubio, Judges, Registrar: E. Coulon, makes the following Order Factual background to the application Initial facts and proceedings before the Civil Service Tribunal 1 The applicant for revision, BP, was hired by the European Union Agency for Fundamental Rights (FRA) on 1 September 2007 as a member of the contract staff in function group III, grade 10, for a period of 2 years, as an assistant in the ‘Procurement and Finance’ team in the ‘Administration’ department. Her contract was renewed for a period of 3 years, expiring on 31 August 2012. 2 A career development report (‘CDR’) was drawn up for the applicant for revision for 2009 and 2010. 3 During the months of March 2010, November 2010, August 2011 and September 2011, and at an unspecified date in 2012, the applicant for revision drew to the attention of the Director of the FRA, under Article 22a of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), various possible irregularities which she claimed had occurred in the FRA’s public procurement procedures and which she had come across in the course of her duties. 4 In the CDR relating to the year 2010, the applicant for revision received the same assessment mark as in the 2009 CDR. The 2011 CDR was not placed on the case file. 5 The numerical assessment of the applicant for revision in respect of 2009 and 2010 was accompanied by negative comments made by the reporting officer. Thus, in the 2009 CDR, the reporting officer stated, inter alia, with regard to efficiency, that the applicant for revision’s poor personal relations with other staff members had had an impact on her efficiency during the period under appraisal and recommended that she should strive continuously to overcome the situation. Regarding conduct in the service, the reporting officer also referred to the poor personal relations which the applicant for revision had with colleagues. 6 In his response of 4 March 2011 to the complaint, brought by the applicant for revision under Article 90(2) of the Staff Regulations, seeking a review of the mark awarded to her and the annulment of the reporting officer’s comments in the three headings of the 2009 CDR, the Director of the FRA, acting as the authority authorised to conclude contracts of employment (‘the AACC’), first decided to increase by half a point her mark for efficiency, which was changed to 6.5 points, and, second, amended the comments under the heading ‘conduct in the service’ as follows: ‘During the reporting period the jobholder had good working relationships with the Agency’s staff from other departments but she had some difficulties to deal with some colleagues within her department. Efforts have been made by both the hierarchy and the jobholder to resolve the situation in a constructive way. A continuous effort should be dedicated to overcome this situation.’ 7 As regards the 2010 CDR, the reporting officer stated, in relation to efficiency, that the continuation of the applicant for revision’s poor personal relations with other staff members had affected her efficiency during the appraisal period and recommended again that she strive continuously to overcome the situation. With regard to conduct in the service, the reporting officer wrote: ‘During the reporting period the jobholder had some difficulties to deal with some of her colleagues. Efforts have been dedicated by the hierarchy to resolve her frictions with other members of the staff in a constructive way. The situation continued to impact on the performance of the jobholder during the appraisal period. A further effort should be dedicated to overcome this situation.’ 8 The applicant for revision responded to the content of the 2010 CDR and made her disagreement known to the AACC by a letter of 18 April 2011, a letter of 4 May 2011 and an email of 15 May 2011, addressed to the Director, by which she also requested that the matter be referred to the Joint Evaluation Committee. In his response of 29 July 2011, the Director of the FRA rejected all arguments put forward by the applicant for revision. 9 The applicant for revision did not challenge the 2009 and 2010 CDRs before the Courts of the European Union. 10 In the context of the procedure for renewing contracts for members of the contract staff, established by Decision 2009/13 of the Director of the FRA of 29 May 2013, the applicant for revision met her Head of Department on 30 January 2012. The following day, her lawyers forwarded her letter of motivation to the Director of the FRA, in which she expressed her desire to have her contract renewed. 11 On 21 February 2012, the applicant for revision received by email an invitation to meet the Director of the FRA and the head of the ‘Human Resources and Planning’ department on 27 February 2012. She initially accepted the invitation but subsequently requested that the meeting be postponed until 28 February because, inter alia, she wanted her lawyer to attend. The meeting, postponed until 28 February, did not take place because the applicant for revision departed on sick leave. 12 By email of 24 February 2012, the applicant for revision’s Head of Department forwarded his opinion on the renewal of the contract of the applicant for revision (‘the Head of Department’s opinion’) to the Director of the FRA. In that opinion, structured around 10 points, the Head of Department highlights, inter alia, certain information relating to a recent reorganisation of the department which transferred tasks to colleagues in other departments and to the main features of the applicant for revision’s CDRs for the previous few years. 13 In that regard, the Head of Department states, inter alia, that the 2009 and 2010 CDRs of the applicant for revision were below the average for staff members; that, in 2011, the situation was unchanged; that the applicant for revision had had problems with her colleagues, which had an impact on her performance; and that, despite efforts made by her line management, the Human Resources department and the Director of the FRA, and also notwithstanding the training given to the applicant for revision, the situation remained unchanged. The Head of Department also states that the FRA had twice offered the applicant for revision, in her own interests as much as in those of the FRA, reassignment to another department, which she had refused. 14 By letter of 27 February 2012, communicated to the applicant for revision on the same date, the Director of the FRA informed the applicant for revision that, having studied her letter of motivation and the Head of Department’s opinion, he had taken a decision not to renew her contract on its expiry on 31 August 2012 (‘the initial decision not to renew’). The Head of Department’s opinion was annexed to that letter. 15 The reasons given by the Director of the FRA for the decision not to renew the applicant for revision’s contract were, first, the FRA’s limited availability of budgetary resources, which obliged him to reconsider the allocation of posts to members of the contract staff, as was apparent from the opinion of the applicant for revision’s Head of Department, and, second, the applicant for revision’s efficiency and conduct in the service, both of which were affected by her poor personal relations with colleagues — a situation which had not improved despite attempts by the hierarchy to resolve friction in a constructive way, in particular by reassignment to another department, something which the applicant for revision had refused. 16 The letter of 27 February 2012 contained a second decision by which the applicant for revision was reassigned in the interests of the service, with immediate effect and for the last 6 months of her contract, to the ‘Communication and Awareness Raising’ department (‘the reassignment decision’). 17 After unsuccessfully bringing a complaint against the decision not to renew her contract and the reassignment decision, the applicant for revision brought an action before the European Union Civil Service Tribunal seeking annulment of those decisions and compensation for the harm which she claimed to have suffered as a result of them. That action was registered as Case F‑38/12. 18 The Civil Service Tribunal ruled on that action, brought by the applicant for revision against the FRA, in the judgment of 30 September 2013, BP v FRA (F‑38/12, EU:F:2013:138) (‘the original judgment’). 19 In the original judgment, the Civil Service Tribunal dismissed the action in its entirety. As regards respect for the rights of defence of the applicant for revision, the Civil Service Tribunal found, in paragraph 106 of its judgment, that FRA Decision 2009/13, concerning the procedure for the renewal of the employment contracts of contract staff, provides for the person concerned to be heard at two stages: first of all, during a meeting with the Head of Department and, subsequently, by way of letter of motivation sent by the member of the contract staff in question to the Director of the Agency 7 months before the expiry of his or her contract. The Civil Service Tribunal pointed out that, in her letter of motivation, the applicant for revision had had the opportunity to express herself and to put forward all the reasons militating in favour of a decision that would have been positive for her. 20 The Civil Service Tribunal found, in paragraph 108 of the original judgment, that the Head of Department’s opinion, of which the applicant for revision had received a copy and on which she wished to express her point of view, constituted a preparatory measure for the initial decision not to renew her contract. As it was not an act adversely affecting the applicant for revision, within the meaning of Article 90(2) and Article 91(1) of the Staff Regulations, she could not validly claim the right to make observations with regard to its content. 21 The applicant for revision was on sick leave from 8 March 2012 until the end of her contract. Appeal proceedings before the General Court 22 The original judgment was the subject of an appeal before the General Court. 23 By its judgment of 3 June 2015, BP v FRA (T‑658/13 P, EU:T:2015:356) (‘the judgment on the appeal’), the Court annulled the decision of 27 February 2012 by which the then Director of the FRA had decided not to renew the contract of the applicant for revision as a member of the contract staff. 24 The Court held, in paragraph 58 of its judgment on the appeal, that, in essence, contrary to the ruling of the Civil Service Tribunal, the applicant for revision’s right to be heard had not been respected, since she had not been heard by the AACC before the adoption of the initial decision not to renew her contract, but only by the Head of Department, with the result that she could not state her views, prior to the adoption of that decision, on all the factors taken into consideration by the AACC in the context of that adoption, including, in particular, the opinion of the Head of Department. 25 The appeal was dismissed as to the remainder. Measures taken by the FRA following the judgment on the appeal 26 Following the appeal against the original judgment, the applicant for revision was allowed to submit observations on the Head of Department’s opinion and was subsequently heard by the new Director of the FRA. The applicant for revision submitted her comments on the draft decision of the Director, notified on 29 January 2016, not to renew her employment contract. 27 The new decision not to renew was notified on 21 April 2016. On 18 May 2016, the applicant for revision lodged a complaint under Article 90(2) of the Staff Regulations, which she supplemented on 23 June 2016, seeking, first, withdrawal of the new decision not to renew, second, reinstatement to her previous position and, third, compensation for non-material damage. On 16 September 2016 that complaint was rejected by decision of the Director of the FRA. Procedure and forms of order sought 28 By document lodged at the Registry of the General Court on 27 December 2016, the applicant for revision brought the present action, under Article 44 of the Statute of the Court of Justice of the European Union and Article 169 of the Rules of Procedure of the General Court, against the original judgment. 29 On 16 January 2017, the applicant for revision submitted, in Case T‑838/16, BP v FRA, a request for joinder of Cases T‑838/16, T‑888/16 and T‑917/16 REV, BP v FRA. 30 By letter lodged at the Court Registry on the same day, the applicant for revision submitted an application for anonymity, which the Court granted by decision of 8 March 2017. 31 By document lodged at the Court Registry on 10 March 2017, the FRA requested that the Court dismiss the request for joinder of Cases T‑838/16, T‑888/16 and T‑917/16 REV, BP v FRA. 32 By document lodged at the Court Registry on 14 March 2017, the FRA submitted its observations on the application for revision. 33 On 30 March 2017, the President of the Fifth Chamber of the General Court decided, after hearing the parties, not to join the present case to Cases T‑838/16 and T‑888/16. 34 By letters lodged at the Court Registry on 28 April, 3 September and 7 November 2017, the applicant for revision submitted new offers of evidence in accordance with Article 85(3) of the Rules of Procedure. The FRA submitted its observations on that evidence within the period specified and maintained that it was inadmissible and unfounded in its entirety. 35 By letter lodged at the Court Registry on 5 January 2018, the applicant for revision applied for measures of organisation of procedure and submitted new offers of evidence in accordance with Article 85(3) of the Rules of Procedure. The FRA submitted its observations on that application and on that evidence within the period specified and expressed the view that they were inadmissible in their entirety. 36 By letter lodged at the Court Registry on 15 January 2018, the applicant for revision submitted new offers of evidence in accordance with Article 85(3) of the Rules of Procedure. By letters lodged at the Court Registry on 19 January and 5 February 2018, the applicant for revision produced additional evidence. The FRA submitted its observations on that evidence within the period specified and maintained that it was inadmissible and unfounded in its entirety. 37 As the President of the Fifth Chamber of the General Court was unable to sit in the present case, he designated another Judge to replace him and to complete the Chamber. 38 As the Judge-Rapporteur was unable to sit in the present case, the President of the General Court reallocated the case to another Judge-Rapporteur and designated another Judge to complete the Chamber. 39 The applicant for revision claims that the General Court should: – revise the original judgment; – order the FRA to pay the costs. 40 She also asks the Court to order that the application for revision should proceed: – primarily, as an independent application; – in the first alternative, as a supplement to the application in Case T‑888/16, BP v FRA; – in the second alternative, as a joined application with the applications in Cases T‑888/16 and T‑838/16, BP v FRA. 41 She requests, in addition, that the Court take any decision which can be taken of its own motion in such a manner that the rights and remedies of the applicant for revision not mentioned in that application are observed and respected. 42 The FRA contends that the Court should: – declare the application for revision inadmissible; – order the applicant for revision to pay the costs. Law The application for revision 43 In support of her application, the applicant for revision claims that, following several requests for access to documents under Regulation (EC) No 1049/2001 of the Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), new decisive facts relating to the original judgment were discovered, namely: – at the time when the initial decision not to renew and the reassignment decision were adopted, the Director of the FRA was in a double undeclared conflict of interest that impacted negatively on those decisions, which were contrary to the interest of the service; – at the date on which the initial decision not to renew was adopted, the FRA needed contract agents and had no rules for appraisal, lawfully adopted; – the non-renewal of the contract of the applicant for revision triggered serious shortcomings within the FRA: lack of formal verification procedures in place at the FRA, serious problems in document management of FRA procurement files, and delegation of procurement tasks to operational units whose staff have different profiles than requested and which had a negative impact on the interest of the service; – the 2011 CDR was never drafted but was used as a ground for non-renewal of the contract. 44 The applicant for revision considers that her application for revision was made within the 3-month period provided for in Article 169 of the Rules of Procedure. 45 The FRA contends that the application for revision is inadmissible since, first, the time limit for bringing that application was not respected and, second, the facts to which the applicant for revision refers are not new and, in any event, do not have decisive influence on the outcome of the case. 46 In order to determine whether the present application for revision is admissible, it should be noted that, according to the first paragraph of Article 44 of the Statute of the Court of Justice of the European Union, which is applicable to proceedings before the General Court pursuant to the first paragraph of Article 53 thereof, an application for revision of a judgment may be made to the Court only on discovery of a fact which is of such a nature as to be a decisive factor, and which, when the judgment was given, was unknown to the Court of Justice and to the party claiming the revision. In accordance with the second paragraph of Article 44 of the Statute of the Court of Justice of the European Union, the revision is to be opened only if the competent Court expressly records the existence of a new fact, recognising that it is of such a character as to lay the case open to revision and declares the application for revision admissible on that ground for the purpose of examining its substance. 47 In that regard, it is necessary to point out that revision is not an appeal procedure but an exceptional review procedure that allows the authority of res judicata attaching to a final judgment to be called into question on the basis of the findings of fact relied upon by the Court. Revision presupposes the discovery of elements of a factual nature that existed prior to the judgment, which were unknown at that time to the Court which delivered that judgment as well as to the party applying for revision and which, had the Court been able to take them into consideration, could have led it to a different determination of the proceedings (judgment of 2 April 2009, Yedaş Tarim ve Otomotiv Sanayi ve Ticaret v Council and Commission, C‑255/06 P‑REV, not published, EU:C:2009:212, paragraph 16, and order of 16 April 2012, De Brito Sequeira Carvalho v Commission, T‑40/07 P‑REV and T‑62/07 P‑REV, not published, EU:T:2012:182, paragraph 12; also see order of 4 December 2014, JAS v Commission, T‑573/11 REV, not published, EU:T:2014:1124, paragraph 23 and the case-law cited). 48 Furthermore, pursuant to Article 169(2) of the Rules of Procedure, without prejudice to the period of 10 years prescribed in the third paragraph of Article 44 of the Statute of the Court of Justice of the European Union, an application for revision must be made within 3 months of the date on which the facts on which the application is founded came to the knowledge of the applicant for revision. In accordance with Article 169(3)(d) of the Rules of Procedure, the application must indicate the nature of the evidence to show that there are facts justifying revision and that the time limits laid down in paragraph 2 of that article have been observed. 49 In addition, in the light of the exceptional nature of the revision procedure, the conditions governing the admissibility of an application for revision of a judgment are to be interpreted strictly (order of 16 April 2012, De Brito Sequeira Carvalho v Commission, T‑40/07 P‑REV and T‑62/07 P‑REV, not published, EU:T:2012:182, paragraph 12; also see order of 4 December 2014, JAS v Commission, T‑573/11 REV, not published, EU:T:2014:1124, paragraph 23 and the case-law cited). 50 In accordance with the second paragraph of Article 44 of the Statute of the Court of Justice of the European Union, the revision is to be opened by a judgment expressly recording the existence of a new fact, recognising that it is of such a character as to lay the case open to revision and declaring the application admissible on that ground. Article 169(5) of the Rules of Procedure provide that, after giving the parties an opportunity to submit their observations, the General Court is to give its decision on the admissibility of the application by way of an order, without prejudice to its decision on the substance. 51 As a preliminary point, it should be noted that the application for revision concerns, first, paragraphs 65, 72, 94, 95 and 99 of the original judgment, which come within the part of that judgment in which the Civil Service Tribunal ruled on the first head of claim, seeking annulment of the initial decision not to renew, and, second, paragraph 128 of that judgment, which comes within the part of that judgment in which the Civil Service Tribunal ruled on the second head of claim, seeking annulment of the reassignment decision. 52 In the first place, it is appropriate to examine the application for revision in so far as it concerns the findings of the Civil Service Tribunal set out in paragraphs 65, 72, 94, 95 and 99 of the original judgment. 53 In that regard, first, it should be noted that these concern findings on which the Civil Service Tribunal based its decision to reject the application for annulment of the initial decision not to renew. 54 In the judgment on the appeal, the Court set aside the original judgment in part, in so far as the latter dismissed the action brought against the initial decision not to renew and annulled that decision. 55 Second, it must be noted that, while it follows from paragraph 154 of the original judgment, the rejection, by the Civil Service Tribunal, of the application for damages brought by the applicant for revision was also based on the considerations set out in paragraphs 65, 72, 94, 95 and 99 of that judgment. 56 However, the fact remains that, as is apparent from paragraphs 82 to 84 of the judgment on the appeal, the Court itself ruled on the claim for damages submitted at first instance on the basis of its own considerations. 57 In the light of these considerations, it must be concluded that the assessments in paragraphs 65, 72, 94, 95 and 99 of the original judgment were annulled by the Court and that the application for revision must therefore be dismissed in so far as it concerns those paragraphs. 58 In the second place, it is appropriate to examine the application for revision in so far as it concerns paragraph 128 of the original judgment, which comes within the part of the grounds of the original judgment on which the Civil Service Tribunal based the rejection of the application for annulment of the reassignment decision. 59 In that context, it should be noted that the Court dismissed the appeal brought against the original judgment in so far as it concerned the rejection, by the Civil Service Tribunal, of the application for annulment of the reassignment decision. The assessments of the Civil Service Tribunal set out in paragraph 128 of the original judgment have not, therefore, been annulled by the Court. 60 In her application for revision, the applicant for revision submits that the audit reports of 8 January and 5 May 2014 demonstrate that the former director of the FRA had a conflict of interests and had disregarded the interest of the service when he adopted the reassignment decision. She claims that that fact is liable to bring into question the Civil Service Tribunal’s finding in paragraph 128 of the original judgment that, as regards the misuse of powers, she had confined herself to speculation and conjecture, providing only suspicions as to the reasons that prompted her superiors to adopt the reassignment decision. 61 In that regard, it should be noted that the revision of the original judgment presupposes the discovery of elements of a factual nature which could have led the Civil Service Tribunal to a different determination of the proceedings (see paragraphs 47 and 48 above). 62 As the Civil Service Tribunal noted in paragraph 86 of the original judgment, the concept of misuse of powers applies to cases where an administrative authority has used its powers for a purpose other than that for which they were conferred on it. 63 In paragraph 128 of the original judgment, the Civil Service Tribunal based its rejection of the arguments of the applicant for revision alleging misuse of powers on two independent considerations. 64 First, it stated that the applicant for revision had confined herself to speculation and conjecture. Second, it stated that the decision to reassign the applicant for revision appeared to be justified in the light of her poor personal relations, which negatively affected her efficiency and her conduct in the service, as had been noted in the 2009 and 2010 CDRs, which had become final. 65 In those circumstances, even if it were assumed that the content of the audit reports of 8 January and 5 May 2014 were liable to challenge the Civil Service Tribunal’s finding that the evidence put forward was limited to speculation and conjecture, it would not be able to challenge the Civil Service Tribunal’s finding that, in the light of the poor personal relations of the applicant for revision, her reassignment appeared to be justified and a misuse of power could thus be excluded. 66 As a result, the application for revision must also be dismissed as inadmissible in so far as it concerns the findings set out in paragraph 128 of the original judgment and, therefore, the application for revision must be dismissed in its entirety. The request for adoption of a measure of organisation of procedure and the offers of evidence 67 As set out in paragraphs 34 to 36 above, by letters lodged at the Court Registry on 28 April, 3 September and 7 November 2017, as well as on 15 and 19 January and 5 February 2018, the applicant for revision submitted new offers of evidence. In addition, by letter lodged at the Court Registry on 5 January 2018, she made a request for measures of organisation of procedure and submitted new offers of evidence, in accordance with Article 85(3) of the Rules of Procedure. 68 According to the FRA, those offers of evidence and that request must be rejected. 69 As a preliminary point, it should be noted that, by her request for adoption of measures of procedure, the applicant for revision asks, in essence, for the opportunity to place on the case file new offers of evidence which, she claims, would allow her to establish and demonstrate the new facts put forward in support of her application for revision. 70 In the present case it must be noted that the applicant for revision put forward, on seven occasions, new offers of evidence in accordance with Article 85(3) of the Rules of Procedure. 71 In that regard, first, it is sufficient to note that, in so far as those offers of evidence seek to challenge the findings of the Civil Service Tribunal set out in paragraphs 65, 72, 94, 95 and 99 of the original judgment, they should be rejected in view of what is set out in paragraphs 52 to 57 above. 72 Second, in so far as those offers of evidence seek to challenge the findings of the Civil Service Tribunal in paragraph 128 of the original judgment, it is sufficient to note that none of those offers of evidence seeks to challenge the finding of the Civil Service Tribunal that the decision to reassign the applicant for revision appeared justified in the light of her poor personal relations (see paragraphs 61 to 66 above). 73 Third, on the assumption that the offers of evidence do concern other elements of the original judgment, it should be noted that, pursuant to Article 169(3)(b) of the Rules of Procedure, the application for revision must indicate the points on which the judgment is contested. 74 However, it must be stated that, in her offers of evidence, the applicant for revision refers to no points other than those referred to above. 75 In the light of those considerations, the applicant for revision’s offers of evidence must be rejected, without it being necessary to rule on the question as to whether it is possible to submit, on the basis of Article 85 of the Rules of Procedure, in the context of revision proceedings, new offers of evidence. 76 Consequently, the requests for the adoption of a measure of organisation of procedure and to submit new offers of evidence must also be rejected. The request that the Court take any decision which can be taken of its own motion in such a manner that the rights and remedies of the applicant for revision are guaranteed 77 The applicant for revision also requests that the Court take any decision which can be taken of its own motion in such a manner that all the other rights and remedies of the applicant for revision not mentioned in the application for revision are observed and respected. 78 However, such a request cannot satisfy the conditions laid down in Article 76(d) of the Rules of Procedure. Indeed, the essential elements of fact and law on which that request is based are not even summarily indicated in a coherent and intelligible manner in the application for revision itself. 79 Accordingly, the request that the Court take any decision which can be taken of its own motion in such a manner that the rights and remedies of the applicant for revision are guaranteed must be rejected as inadmissible. Costs 80 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 81 Since the applicant for revision has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the FRA. On those grounds, THE GENERAL COURT (Fifth Chamber) hereby orders: 1. The application for revision is dismissed as inadmissible. 2. BP shall bear her own costs and pay those incurred by the European Union Agency for Fundamental Rights (FRA). Luxembourg, 11 July 2019. E. Coulon I. Labucka Registrar President * Language of the case: English.