JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
11 July 2019 (*)
(Civil service — Members of the contract staff — FRA — Fixed-term contract — Decision not to renew — New decision adopted following an annulment by the General Court — Rights of the defence — Principle of sound administration — Obligation to state reasons — Liability)
In Case T‑888/16,
BP, represented by E. Lazar, lawyer,
applicant,
v
European Union Agency for Fundamental Rights (FRA), represented by M. O’Flaherty, acting as Agent, and by B. Wägenbaur, lawyer,
defendant,
ACTION under Article 270 TFEU, seeking (i) annulment of the FRA decision of 4 April 2016 not to renew the applicant’s contract as a member of the contract staff, adopted as a result of the implementation of the judgment of 3 June 2015, BP v FRA, (T‑658/13 P, EU:T:2015:356); and (ii) compensation for the damage which the applicant allegedly suffered,
THE GENERAL COURT (Fifth Chamber),
composed of I. Labucka (Rapporteur), acting as President, A. Dittrich and I. Ulloa Rubio, Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
Facts and procedure before the Civil Service Tribunal
1        The applicant, BP, was recruited on 1 September 2007 by the European Union Agency for Fundamental Rights (FRA) as a member of the contract staff for a term of 2 years, as an assistant in the Administration Department’s Finance and Procurement team.
2        Her contract was renewed for a period of 3 years, expiring on 31 August 2012.
3        A career development report (‘the CDR’) was drawn up for the applicant in respect of 2009 and 2010.
4        During the months of March 2010, November 2010, August 2011 and September 2011, and at an unspecified date in 2012, the applicant drew to the attention of the FRA Director, 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 FRA’s public procurement procedures and which she had come across in the course of her duties.
5        In the CDR relating to the year 2010, the applicant received the same assessment points as those in the 2009 CDR. The 2011 CDR was not put before the Civil Service Tribunal.
6        The appraisal of the applicant 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’s poor personal relations with other staff members had had an impact on her efficiency during the appraisal period and recommended that she should strive continuously to overcome the situation. Regarding conduct in the service, the reporting officer also referred to the applicant’s poor personal relations with colleagues.
7        The applicant subsequently lodged a complaint, under Article 90(2) of the Staff Regulations, in which she sought, in particular, a review of the points awarded to her and the removal of the reporting officer’s comments under the three headings of the 2009 CDR.
8        On 4 March 2011, the FRA Director, acting as the authority authorised to conclude contracts of employment (‘the AACC’), first, decided to increase by half a point the mark for efficiency, which was changed to 6.5 points and, secondly, amended the comments under the heading ‘Conduct in the service’ as follows:
‘During the reporting period the jobholder had good working relationships with [FRA’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 the situation.’
9        As regards the 2010 CDR, the reporting officer stated, in relation to efficiency, that the continuation of the applicant’s poor personal relations with other staff members 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 the following:
‘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 continuous effort should be dedicated to overcome the situation.’
10      The applicant responded to the content of the 2010 CDR and made her disagreement known to the AACC by letters of 18 April
and 4 May 2011 and by email of 15 May 2011 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 FRA Director rejected all the applicant’s arguments.
11      The applicant did not challenge the 2009 and 2010 CDRs before the European Union judicature.
12      In the course of the procedure for renewing contracts for members of the contract staff, established by the FRA Director’s Decision 2009/13 of 29 May 2009 (‘Decision 2009/13’), the applicant met her head of department on 30 January 2012 and, the following day, the applicant’s lawyers forwarded her letter of motivation to the FRA Director, in which she expressed her desire to have her contract renewed.
13      On 21 February 2012, the applicant received by email an invitation to meet the FRA Director and the head of the Human Resources and Planning department (‘the Human Resources department’) on 27 February 2012, which she initially accepted but which she subsequently requested be postponed until 28 February because, inter alia, she wanted her lawyer to attend. The meeting that was postponed to 28 February did not take place because the applicant took sick leave.
14      By email of 24 February 2012, the applicant’s head of department forwarded his opinion on the renewal of the applicant’s contract to the FRA Director (‘the opinion of 24 February 2012’). In that opinion, structured around 10 points, the head of department highlights 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’s CDRs for the previous few years.
15      In that regard, the head of department states, inter alia, that the applicant’s CDRs for 2009 and 2010 were below the average for staff members; that, in 2011, the situation was unchanged; that the applicant 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 FRA Director, and despite also the training given to the applicant, the situation remained unchanged. The head of department also states that FRA had twice offered the applicant, in her own interests as much as in FRA’s interests, reassignment to another department, which she refused.
16      By letter of 27 February 2012, sent to the applicant on the same date, the FRA Director informed the applicant that, having studied her letter of motivation and the opinion of the head of department, he had taken a decision not to renew her contract on its expiry on 31 August 2012 (‘the initial decision not to renew’). The opinion of the head of department was annexed to that letter.
17      The reasons given by the FRA Director for the decision not to renew the applicant’s contract were, first, 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’s head of department and, secondly, the applicant’s efficiency and conduct in the service, both 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, which the applicant had refused.
18      The letter of 27 February 2012 contained a second decision by which the applicant 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’).
19      After lodging an unsuccessful complaint against the decision not to renew and the reassignment decision, the applicant brought an action before the European Union Civil Service Tribunal, seeking the annulment of those decisions and compensation for the damage allegedly suffered as a result of those decisions. That action was registered as Case F‑38/12.
20      The Civil Service Tribunal dismissed the action in its entirety by judgment of 30 September 2013, BP v FRA (F‑38/12, EU:F:2013:138; ‘the original judgment’).
Facts and procedure before the General Court
21      The original judgment was the subject of an appeal before the General Court.
22      By its judgment of 3 June 2015, BP v FRA (T‑658/13 P, EU:T:2015:356; ‘the judgment on appeal’), the General Court annulled the decision of 27 February 2012 whereby the FRA Director in post at that time decided not to renew the applicant’s contract as a member of the contract staff.
23      The General Court, in essence, held that, contrary to the finding of the Civil Service Tribunal, the appellant’s right to be heard had not been observed, since she had not been heard by the AACC — namely the FRA Director — before the adoption of the initial decision not to renew her contract, but by the head of department only. It followed that she had not been able to submit comments, before the adoption of that decision, on all the factors taken into consideration by the AACC when adopting that decision, including, in particular, the opinion of 24 February 2012. The appeal was dismissed as to the remainder.
Measures taken by FRA following the judgment on appeal
24      By email of 11 June 2015, the applicant expressed her point of view on the implementation of the judgment on appeal.
25      By email of 26 June 2015, FRA’s external legal counsel contacted the applicant’s legal representative with regard to the implementation of the judgment on appeal.
26      By letter of 30 June 2015, the applicant’s legal representative informed FRA’s external legal counsel that the applicant wished to be informed of the measures FRA intended to take in order to implement the judgment on appeal, and that the applicant should be informed directly.
27      By letter of 2 July 2015, FRA informed the applicant that its external legal counsel would inform her of the measures taken to implement the judgment on appeal.
28      In her reply of 3 July 2015 to FRA’s external legal counsel, the applicant stated, inter alia, that:
–        she ought to be given a 6-month contract;
–        her former head of department and former Interim Director, who wrote the opinion on the renewal of her contract for the FRA Director, had a conflict of interest;
–        the 2009 and 2010 CDRs were not final;
–        she was entitled to compensation for the ‘material damage’ suffered;
–        she had lost the chance of obtaining a permanent contract.
29      By letter of 28 July 2015, sent by both registered post and email, FRA’s external legal counsel:
–        informed the applicant of the measures for the implementation of the judgment on appeal;
–        provided her with a copy of the head of department’s opinion, which he had received from FRA;
–        requested that she provide her written comments by no later than 7 August 2015;
–        requested that she indicate whether she would be available on given dates in August 2015 in order to be heard by the acting head of the Human Resources department.
30      The registered letter was returned to FRA’s external legal counsel, as it could not be delivered to the address provided by the applicant.
31      By email of 29 July 2015, FRA’s external legal counsel again supplied the applicant with a copy of the opinion of 24 February 2012.
32      By letter of 31 July 2015, the applicant confirmed, inter alia, that she was in possession of the head of department’s opinion and that she had commented on that opinion by email of 11 June
2015 and in subsequent correspondence.
33      By letter of 4 August 2015, FRA’s external legal counsel informed the applicant that (i) she would be heard by the new Director, following his appointment; (ii) there was no 2011 CDR, since the applicant had not requested one at the time; and (iii) her 2009 and 2010 CDRs did not include annexes. A copy of the ‘Multi-annual Staff Policy Plan 2012-2014’ (‘MSPP’) was enclosed with that letter. The applicant was also informed that she would be contacted again when the new Director was in a position to hear her.
34      The applicant replied by two emails of 4 August 2015.
35      By further email of the same date, the applicant requested that the author of the opinion of 24 February 2012, who was the Interim Director as at 4 August 2015, ‘take the necessary measures for the execution of the judgment’.
36      By email of 7 August 2015, the applicant submitted her written comments to the Interim Director on his opinion, claiming that he had a conflict of interest. Moreover, she requested that she be given documents on the ‘reorganisation’ of the tasks of the ‘Finance and Procurement’ team, ‘lean management’ and ‘budgetary cuts’.
37      By email of 16 August 2015, the applicant informed FRA’s external legal counsel that she would ‘lodge a complaint with all four Bar associations (Hamburg, Brussels, Newcastle and Washington)’, because FRA’s external legal counsel had failed to reply to her requests of 3 and 4 August 2015 seeking confirmation as to whether he had dealt with her ‘applications to access FRA documents’ and whether he had ‘worked on the reply to ECJ, dealing with [her] application under Regulation [No] 1049/2001’.
38      By email of 18 October 2015, the applicant requested that she be ‘inform[ed] about the date for starting the implementation of [the judgment on appeal]’.
39      By letter of 19 October 2015, FRA’s external legal counsel informed the applicant that the Director would be taking up his duties on 16 December 2015, and enquired as to whether the applicant would be available for a meeting at some point after that date.
40      The applicant replied by email of 29 October 2015, confirming that she would attend the meeting with the Director in December 2015.
41      FRA’s external legal counsel replied by letter of 4 November 2015, informing the applicant that the Director would be fully apprised of the case prior to the meeting of December 2015.
42      By emails of 5 and 25 November 2015, the applicant confirmed that she was available for the meeting with the Director on 18 December 2015.
43      By email of 6 December 2015, the applicant requested, inter alia, the handover to the Director of the correspondence she had had with FRA and its external legal counsel ‘in relation to the execution of the judgment [on appeal]’.
44      On 18 December 2015, the new Director heard the applicant at a meeting in Vienna (Austria).
45      By email of 21 December 2015, the applicant submitted further written comments on the opinion of 24 February 2012.
46      By email of 22 December 2015, sent to the new FRA Director, the applicant submitted comments on FRA’s recruitment procedure.
47      By email of 3 January 2016, the applicant submitted comments on the draft minutes of the hearing of 18 December 2015.
48      The final version of the minutes of that hearing was signed on 15 January 2016.
49      On 29 January 2016, the FRA notified the applicant of the new Director’s draft decision not to renew her employment contract.
50      On 3 February 2016, the applicant lodged a request, within the meaning of Article 90(1) of the Staff Regulations, to begin CDRs for the years 2011 and 2012, and made statements as to why she had not been able to bring legal action with regard to her 2009 and 2010 CDRs after her complaints lodged under Article 90(2) of the Staff Regulations had been rejected in 2009.
51      By email of 6 February 2016, the applicant submitted the first of a series of comments on the draft decision of 29 January 2016.
52      By letter of 22 February 2016, the applicant submitted a further series of comments on the draft decision.
53      By email of 24 February 2016, the applicant stated that ‘as mentioned in [her] comments … the case files F‑38/12 and T‑658/13 P [were] an integral part of those comments’ and attached the case file in Case T‑658/13 P, BP v FRA, to that email.
54      By email of 25 February 2016, the applicant informed the new FRA Director that the draft decision contained defamatory statements concerning her, and she attached
to the email several items of evidence which, she claimed, contradicted the allegations that she deemed unfounded.
55      On 4 April 2016, the new Director adopted the decision not to renew the applicant’s contract (‘the contested decision’) and notified the applicant of that decision on 21 April 2016.
56      In that decision, the new FRA Director justified the non-renewal of the applicant’s contract by weighing up, on the one hand, the interests of the service, in the light of the negative opinion given by her head of department on
24 February 2012, her relative performance over a period of 3 years preceding the initial decision not to renew and budgetary aspects requiring, within FRA, the temporary engagement of an archivist and, on the other hand, the interests of the applicant.
57      On 18 May 2016, the applicant lodged a complaint, within the meaning of Article 90(2) of the Staff Regulations, which she supplemented on 23 June 2016, seeking (i) the withdrawal of the contested decision; (ii) her reinstatement to her previous position; and (iii) compensation for the damage suffered.
58      By decision of 16 September 2016, the new Director expressly rejected the complaint.
59      By letter of 15 November 2016, the new FRA Director wrote to the applicant regarding the question which she raised in relation to her 2009, 2010 and 2011 CDRs.
60      By his letter of 7 December 2016, the new Director reminded the applicant that her CDRs for 2009 and 2010 had become final, as confirmed by paragraph 23 of the initial judgment and paragraph 14 of the judgment on appeal.
Procedure and forms of order sought
61      By application lodged at the Court Registry on 8 December 2016, the applicant brought the present action.
62      By letter lodged at the Court Registry on the same day, the appellant submitted an application for anonymity, which the Court granted by decision of 8 February 2017.
63      On 29 March 2017, the President of the Fifth Chamber of the General Court decided, after hearing the parties, not to join the present case with Cases T‑838/16 and T‑917/16 REV, BP v FRA.
64      As the President of the Fifth Chamber of the General Court was unable to sit, he designated another Judge to replace him and complete the Chamber, pursuant to Article 17(2) of the Rules of Procedure of the General Court.
65      As the Judge Rapporteur was unable to sit, the President of the General Court reallocated the case to another Judge Rapporteur and designated another Judge to complete the Chamber.
66      By letters lodged at the Court Registry on 11 September and 30 October 2017, the applicant submitted offers of further evidence, pursuant to Article 85(3) of the Rules of Procedure. FRA submitted its observations on that evidence within the time limit prescribed and contended that that evidence was inadmissible and unfounded in its entirety.
67      By letter lodged at the Court Registry on 24 December 2017, the applicant submitted an application for measures of organisation of procedure. The FRA submitted its observations on that application within the time limit prescribed and took the view that it was inadmissible.
68      By letter lodged at the Court Registry on 17 January 2018, the applicant submitted offers of further evidence, pursuant to Article 85(3) of the Rules of Procedure. By letter lodged at the Court Registry on 5 February 2018, the applicant submitted further evidence. FRA submitted its observations on that evidence within the time limit prescribed and contended that that evidence was inadmissible and unfounded in its entirety.
69      By letter of 24 April 2018, the Court, by way of measures of organisation of procedure, asked the parties to reply in writing to certain questions. The parties complied with that request within the time allowed.
70      On 14 June 2018, the applicant submitted two further offers of evidence, in accordance with Article 85(3) of the Rules of Procedure. FRA submitted its observations on that evidence within the time limit prescribed and contended that that evidence was inadmissible and unfounded in its entirety.
71      The General Court (Fifth Chamber) decided, under Article 106(3) of the Rules of Procedure, to rule on the action without an oral part of the procedure.
72      By document lodged at the Court Registry on 2 July 2019, the applicant sought the confidential treatment of certain information with regard to the public.
73      The applicant claims that the Court should:
–        annul the contested decision;
–        ‘rule’ that the FRA Guidelines applicable to the appraisal and reclassification procedure and the rules on the renewal procedure are unlawful;
–        order FRA to compensate the applicant for the damage suffered by the award of damages and default interest;
–        ‘exercise its full jurisdiction to ensure the effectiveness of its decision’;
–        order FRA to pay all the costs.
74      The FRA contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs, including those incurred in dealing with the applications for the adoption of measures of organisation of procedure and the lodging of offers of further evidence.
Law
75      In her application, the applicant seeks (i) the annulment of the contested decision and (ii) compensation in respect of the damage allegedly suffered.
76      She also requests that the Court rule
that the FRA Guidelines and rules on the renewal procedure are unlawful. That head of claim cannot be assessed independently, as it is apparent from the application that the arguments put forward in support of that head of claim seek, in essence, the annulment of the contested decision or compensation in respect of the damage suffered, with the effect that those claims will be taken into account when considering the second plea in law, alleging that the FRA rules are unlawful.
77      Moreover, first, during the procedure before the General Court, the applicant submitted, in accordance with Article 85 of the Rules of Procedure, offers of further evidence which is, in FRA’s view, inadmissible. Second, the applicant submitted an application for adoption of a measure of organisation of procedure, which FRA contends is also inadmissible.
78      Consequently, it is necessary to assess the admissibility of the offers of further evidence and the application for a measure of organisation of procedure before examining the merits of the action for annulment and claim for compensation.
The application for adoption of a measure of organisation of procedure
79      In accordance with Article 89 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. Measures of inquiry under Article 91 of those rules are intended to allow proof of the truth of the factual allegations made by a party in support of its case to be adduced.
80      There is no need to order a measure of organisation of procedure or of inquiry suggested by an applicant where its purpose is not to clarify the pleas raised or to prove the truth of its factual submissions, but rather appears to be an attempt to obtain new evidence in support of its action, unless the applicant raises specific complaints which can be checked or clarified by a request for information or for specific documents (judgment of 8 November 2000, Bareyt and Others v Commission, T‑175/97, EU:T:2000:259, paragraphs 89 to 91).
81      If such a request is made at a stage in the procedure when the production of new evidence is, in principle, no longer allowed, it is necessary in particular for the party requesting those measures to set out the reasons why the request could not have been made earlier (judgment of 18 January 2005, Entorn v Commission, T‑141/01, EU:T:2005:10, paragraph 132).
82      The applicant’s arguments must be examined in the light of the foregoing considerations.
83      On 24 December 2017, the applicant lodged an application for measures of organisation of procedure. She adds that, should FRA refuse to cooperate, the Court should adopt a measure of inquiry.
84      In the first place, the applicant claims that, since the former management of FRA — namely the former Director and the former head of the Human Resources department — can no longer take part in a hearing, it is not in a position to contribute to establishing and presenting the facts. However, she claims that that could be done through measures of organisation of procedure, for example through written statements and witness testimony before the Court, given that the current management of FRA refused to provide the OLAF Reports sent to FRA on 5 December 2016 and in August 2017, which, it is argued, are relevant to the present case.
85      In the second place, the applicant argues that FRA was aware [confidential] (1) and that it consequently implemented the judgment on appeal as it did, that is, infringing, for the second time, the applicant’s rights of defence as well as many other of her rights. She adds that, if the Court is of the opinion that the evidence before it is insufficient, it will be able to request written statements or oral testimony from FRA staff.
86      In the third place, the applicant suggests that the Court request the parties or third parties to produce all the information that it deems necessary for the purposes of preparing the present case for hearing, pursuant to Article 24 of the Statute of the Court of Justice of the European Union. In the context of that provision, the applicant suggests that the Court request the submission of evidence demonstrating that the decisions and opinions of those parties or third parties were not biased.
87      In the fourth place, the applicant suggests that the parties be summoned to appear before the Court to answer any questions so as to clarify the facts and provide evidence thereof. The applicant claims that FRA refrained from providing any relevant evidence establishing the facts and the negative statements concerning the applicant.
88      FRA takes the view that the application for measures of organisation of procedure must be rejected.
89      As a preliminary point, it should be observed that the applicant takes the view that the adoption of measures of organisation of procedure would be more appropriate for a fair and complete resolution of the case than the organisation of a hearing. Furthermore, the applicant views the proposed measures of organisation of procedure as a means of avoiding the costs of a hearing.
90      FRA observes, in essence, that the assumption that a hearing is less appropriate than the adoption of measures of organisation of procedure is pure speculation. According to FRA, the applicant proposes the adoption of measures of organisation of procedure for purely financial reasons.
91      It should be observed, first of all, that the applicant’s reasoning is inconsistent. The applicant herself takes the view that the information before the Court contains enough evidence to demonstrate that FRA failed to implement the judgment on appeal correctly.
92      Secondly, the applicant has failed to explain how the former management of FRA might be able to contribute to the present proceedings, particularly as the dispute concerns the annulment of the decision not to renew made by the new management of FRA.
93      Lastly, she has failed to establish how the OLAF Reports, resulting from an investigation opened in 2014, after her departure from FRA, are relevant to the contested decision.
94      It follows that it must be held that the applicant has failed to provide the Court with the relevant information with regard to the measures which she considers necessary. She has failed in fact to indicate anywhere in her application which persons could be called upon, the type of information that they might provide, be it through a hearing or written statements, or the reasons justifying the submission of such an application at such a late stage in the procedure.
95      The application for measures of organisation of procedure must therefore be rejected as inadmissible.
The offers of further evidence
96      The applicant submitted offers of further evidence, in accordance with Article 85(3) of the Rules of Procedure,
on five occasions.
97      As regards the submission of further evidence during the proceedings by the applicant and her requests that it be added to the file, FRA contends that the submission of new evidence by the applicant is part of an overall strategy to submit supplementary evidence in support of her arguments against FRA, without having regard to the advanced stage of the proceedings.
98      FRA contends that all of the applicant’s applications must be declared inadmissible and that all the costs incurred by FRA in dealing with the submission of further evidence and the application for measures of organisation of procedure must be borne by the applicant.
Preliminary observations
99      Article 85 of the Rules of Procedure governs the lodging of evidence and offers of evidence by the main parties during the judicial proceedings. It provides for the stages at which evidence and offers of evidence are possible by distinguishing between the first exchange of pleadings (paragraph 1), the second exchange of pleadings (paragraph 2) and the final stage, up to which point it is still possible for a main party to submit evidence or make offers of evidence, since that is no longer permitted after the end of the oral part of the procedure (paragraph 3), without prejudice to the possibility of requesting that the oral procedure be reopened, provided for in Article 113(2)(c) of the Rules of Procedure.
100    Whilst highlighting the exceptional nature of situations in which evidence or offers of evidence are put forward, Article 85 of the Rules of Procedure makes them subject to an express obligation to state the reasons for the delay in the submission of that evidence, as required by settled case-law (see, by analogy, judgments of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraph 71, and of 14 April 2005, Gaki-Kakouri v Court of Justice, C‑243/04 P, not published, EU:C:2005:238, paragraph 33).
The first offer of evidence
101    By the submission of the first offer of evidence, on 11 September 2017, the applicant sought leave to add the following six documents to the case file, namely:
–        the letter from OLAF dated 30 August 2017, concerning Case OF/2014/0039, sent to the applicant on 31 August 2017;
–        the letter from the European Ombudsman of 19 June 2017 relating to FRA’s failure to comply with the judgment of 17 March 2016, Vanhalewyn v EEAS (T‑792/14 P, EU:T:2016:156), sent on 28 August 2017, in connection with a request for access to documents;
–        the email sent by the applicant on 6 January 2016 to the FRA Director in connection with the implementation of the judgment on appeal and the attachment to that email;
–        the complaint lodged on 26 November 2009 by Mr F. (FRA Data Protection Officer, head of the IT Department and head of the team responsible for access to FRA documents);
–        the OLAF Report in Case OF/2007/0488;
–        the minutes of the meeting of 11 November 2014 showing that the recruitment of an archivist was a ‘smokescreen recruitment’.
102    In so far as concerns the letter from OLAF of 30 August 2017, it should be observed that that letter is intended solely to inform the applicant of the end of the investigation into possible irregularities vitiating a tender procedure for services in 2013.
103    Since that letter is dated 30 August 2017, its submission in the present case on 11 September 2017 was not late, with the result that that offer of evidence is admissible.
104    However, the same does not apply to the email of 6 January 2016, sent by the applicant to the FRA Director, or the complaint of 26 November 2009 made by the FRA Data Protection Officer, head of the IT Department and head of the team responsible for access to FRA documents, against the applicant.
105    As regards the email of 6 January 2016, it is clear, first, that the applicant is the author of that email and that it was submitted late.
106    Secondly, as regards the complaint of 26 November 2009 made by the Data Protection Officer, it is clear that the applicant was aware of it, as she states, in the letter accompanying her first offer of evidence, that she mentioned it in comments made to FRA in 2009 and 2010.
107    In so far as concerns the Ombudsman’s letter of 19 June 2017, it shows, according to the applicant, that ‘FRA kept secret [from her] that it adopted new appraisal rules containing [a] right of appeal under Article 43 of the Staff Regulations’. The applicant claims that FRA failed to comply with the Ombudsman’s decision. In support of her application for submission of the Ombudsman’s letter, the applicant also refers to the minutes of the meeting of 11 November 2014 and alleges that that document demonstrates that ‘the recruitment of an archivist was a smokescreen recruitment’.
108    It must be observed that the Ombudsman’s letter is a letter inviting FRA to provide comments on a complaint lodged by the applicant with the Ombudsman concerning FRA’s alleged refusal to republish the applicant’s 2009 and 2010 CDRs and its alleged failure to comply with the judgment of 17 March 2016, Vanhalewyn v EEAS (T‑792/14 P, EU:T:2016:156).
109    It is clear that the applicant relies in that complaint on factors which are part of the arguments raised in the present case and that she is striving to draw conclusions on that basis for the purposes of the present proceedings. The applicant cannot therefore claim that she became aware of that problem only during the present proceedings.
110    With regard to the OLAF Report in Case OF/2007/0488, the applicant merely states that ‘since the moment the first OLAF report … was issued and communicated to … FRA, report which shows serious problems in official’s conduct, no measure was taken’. It should be observed that the OLAF Report was sent to the Registry of the Civil Service Tribunal on 11 October 2011 and that the applicant has failed to provide any justification for the late submission of that evidence other than it was not apparent that it might be relevant.
The second offer of evidence
111    By the submission of the second offer of evidence, on 30 October 2017, the applicant sought leave to add the following three documents to the case file:
–        medical documents covering the period from 28 August 2017 to 12 October 2017 (and supporting documents);
–        FRA’s letters of 26 and 29 September 2017 relating to requests for public access to documents;
–        the email from the Court of Justice of the European Union of 6 October 2017 and the two annexes thereto, which concern [confidential].
112    It must be observed that the applicant has not claimed that those annexes relate to the subject matter of the present dispute, or provided any indication as to how that evidence relates to the contested decision.
113    Furthermore, in so far as concerns the medical documents, it must be observed that that evidence concerns the period from 28 August to 12 October 2017 — that is, approximately a year and a half after the adoption of the contested decision by the Director — with the result that there is no connection with the subject matter of the present dispute.
The third offer of evidence
114    By the submission of the third offer of evidence, on 17 January 2018, the applicant sought leave to add the following seven documents to the case file:
–        [confidential];
–        the OLAF Report of 14 December 2016 in Case OF/2014/0192;
–        the letter of 30 November 2015 by
Mr T. to the new FRA Director;
–        the emails exchanged between the head of the Human Resources department and Mr T. around the time of the opinion of 24 February 2012;
–        [confidential];
–        the FRA investigation opened in February and March 2016, during the new FRA Director’s term of office;
–        the email of 9 January 2018 from [confidential].
115    On 5 February 2018, the applicant submitted evidence in addition to her most recent offer of evidence, namely the full annexes to the OLAF Report in joined cases OF/2014/0192 and OF/2015/0167.
116    It should be observed that the applicant argues, in order to justify the late submission of the third offer of evidence, that she received [confidential] and the email [confidential]
only recently. Furthermore, the applicant has failed to provide any justification for the late submission of the further evidence.
117    In so far as concerns [confidential], it is clear from the annex to FRA’s observations that the applicant’s [confidential] stated the following in an email of 11 May 2017:
‘[confidential]’
118    By email of 14 May 2017, the same [confidential] stated: ‘I had the opportunity to review the entire [confidential]’.
119    It follows that the applicant was fully aware of [confidential], [confidential] and the relevant case file, at the latest on 11 May 2017, with the result that the delay in submitting that item of evidence is not justified.
120    In any event, [confidential] cannot be relevant to establishing that the contested decision is unlawful.
121    As to the OLAF Report and the annexes thereto, the application to add a private civil party to criminal proceedings, and the FRA investigation, the applicant merely makes a general reference to the evidence contained in the abovementioned annexes.
122    It should be recalled, in that connection, that, although the body of the application may be supported and supplemented, in regard to specific points, by references to extracts of documents appended thereto, a general reference to the annexes to the application, and, a fortiori, to the annexes in other actions, in order to indicate essential parts of the legal arguments, does not satisfy the requirements of the Rules of Procedure. Since the annexes have a purely evidential and auxiliary function, it is not for the Court to seek and identify in the annexes as a whole the grounds on which it may consider the action to be based (see, to that effect and by analogy, order of 29 November 1993, Koelman v Commission, T‑56/92, EU:T:1993:105, paragraphs 21 and 23).
123    Consequently, the applicant cannot validly rely exclusively on the content of the annexes.
124    With regard to the letter of 30 November 2015 and the emails exchanged between the head of the Human Resources department and Mr T., it should be observed that the documents mention [confidential]. The applicant has failed to demonstrate in any way the connection that those documents might have with the subject matter of the present dispute, with the result that they cannot be taken into account in the present case.
125    In so far as concerns the email of 9 January 2018 from the Spanish Public Prosecutor’s Office, it is clear that that item of evidence has no connection with the subject matter of the present dispute.
The fourth and fifth offers of evidence
126    In submitting the fourth and fifth offers of evidence on 14 June 2018, first, the applicant sought leave from the Court to add to the case file an email received from the magazine Stern, her reply to the journalist who had contacted her, FRA’s proposed amendments to the article, and various emails exchanged by
the applicant and her lawyer, and also the cabinet of the President of the Court of Justice, concerning [confidential]. Secondly, the applicant sought leave to add to the case file a document [confidential].
127    It is clear that those last two offers of evidence are not sufficiently directly connected with the present case, with the result that the applicant cannot rely on them to any purpose in support of her action for annulment and claim for compensation.
The action for annulment
128    In support of her action for annulment, the applicant relies, in essence, on eight pleas in law.
129    The first plea alleges breach of the rights of the defence. The second alleges that the FRA’s rules are unlawful. The third plea alleges conflict of interest, non-observance of the interest of the service, misuse of powers, manifest error of assessment and misapplication of the principle of non-retroactivity. The fourth plea alleges, in essence, infringement of Article 266 TFEU. The fifth plea alleges irregularities vitiating the acts preparatory to the contested decision. The sixth plea alleges infringement of FRA’s rules on renewal. The seventh plea alleges breach of the obligation to state reasons,
and the eighth plea infringement of the principle of sound administration.
Preliminary observations
130    First of all, it should be borne in mind that the annulment of a measure by the Court has the effect of retroactively eliminating that measure from the legal order (see judgment of 31 March 2004, Girardot v Commission, T‑10/02, EU:T:2004:94, paragraph 84 and the case-law cited).
131    Secondly, under Article 266 TFEU, the institution, body, office or entity whose act has been declared void is required to take the necessary measures to comply with the judgment annulling the measure.
132    The defendant institution is therefore required, pursuant to that provision, to take the necessary measures to reverse the effects of the illegalities found to exist (see order of 29 June 2005, Pappas v Committee of the Regions, T‑254/04, EU:T:2005:260, paragraph 37 and the case-law cited, and judgment of 12 April 2016, CP v Parliament, F‑98/15, EU:F:2016:76, paragraph 59 and the case-law cited).
133    Where the annulled measure has already been implemented, the cancellation of its effects requires, in principle, that the legal situation in which the applicant found himself before the adoption of that measure be reinstated (see judgment of 31 March 2004, Girardot v Commission, T‑10/02, EU:T:2004:94, paragraph 84 and the case-law cited).
134    In order to comply with a judgment annulling a measure and to implement it fully, the institution whose measure has been annulled is required to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure. The procedure for replacing such a measure may thus be resumed at the very point at which the illegality occurred (see order of 20 September 2013, Van Neyghem v Council, T‑113/13 P, EU:T:2013:568, paragraph 21 and the case-law cited).
135    It is in the light of those considerations that the present action must be examined.
136    To that end, it is appropriate to assess in this order: (i) the seventh plea in law, alleging breach of the obligation to state reasons; (ii) the first plea in law, alleging infringement of the rights of the defence; (iii) the fourth plea, alleging infringement of Article 266 TFEU; (iv) the eighth plea, alleging infringement of the principle of sound administration; (v) the fifth plea, alleging irregularities vitiating the acts preparatory to the contested decision; (vi) the sixth plea, alleging infringement of FRA’s rules on renewal; (vii) the third plea, alleging conflict of interest, non-observance
of the interest of the service, misuse of powers, manifest error of assessment and misapplication of the principle of non-retroactivity; and (viii) the second plea, alleging that the FRA’s rules are unlawful.
The seventh plea: breach of the obligation to state reasons
137    The applicant criticises FRA, in essence, for failing to state reasons, in the contested decision, for not taking into account her comments on the alleged irregularities vitiating the acts preparatory to the contested decision.
138    She also claims that no explanation was given for the amendment of the opinion of 24 February 2012 or the legitimacy of the use of the MSPP 2012-2014.
139    In that connection, it should be borne in mind that the purpose of the obligation to state the reasons is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the measure is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the Courts of the European Union and, second, to enable the latter to review the legality of that measure (judgment of 14 December 2017, Trautmann v EEAS, T‑611/16, not published, EU:T:2017:917, paragraph 35).
140    It should also be recalled that the statement of reasons for a measure must be sufficient but not exhaustive, and that it is sufficient for the administration to set out the facts and legal considerations having decisive importance in the context of the decision (see judgment of 29 September 2011, AJ v Commission, F‑80/10, EU:F:2011:172, paragraph 117 and the case-law cited).
141    It follows that the administration is not required to adopt a position on all the complaints put forward before it (see, to that effect, judgment of 12 December 2014, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑643/11, EU:T:2014:1076, paragraph 130).
142    In the present case, first, it should be noted that, in the contested decision, FRA set out, to the requisite legal standard, the facts and legal considerations on which that decision was based, including the MSPP 2012-2014, as is clear from paragraph 56 of the present judgment; FRA cannot, however, be required to answer all the complaints put to it by the applicant in relation, inter alia, to any irregularities vitiating the acts preparatory to the contested decision.
143    Secondly, inasmuch as the applicant argues that no explanation was given for the amendment, on 24 July 2015, of the opinion of 24 February 2012, it is sufficient to note that that argument is based on the premiss that that opinion was indeed amended. It does not appear from the information before the Court that that opinion was updated or underwent any amendments. On the contrary, a comparison of the applicant’s letters of 7 August and 21 December 2015, in which the applicant quotes the 10 points of the opinion of 24 February 2012, highlights the fact that that opinion was neither updated nor otherwise amended.
144    In the light of the foregoing, the seventh plea must be rejected as unfounded.
First plea in law: infringement of the rights of the defence
145    The applicant claims, in essence, that the contested decision was taken in breach of her rights of defence.
146    That plea is divided into two parts.
147    The first part alleges infringement of the right to be heard, while the second part alleges infringement of the right to have access to her file.
–       The first part: infringement of the right to be heard
148    The applicant alleges failure to hold a fair and effective hearing before the new FRA Director, in breach of Article 41(2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’).
149    She also claims, in essence, that FRA failed to have regard to her comments on the alleged irregularities vitiating the acts preparatory to the contested decision.
150    Furthermore, she maintains that, in so far as concerns the meeting of 18 December 2015, the new Director selected only those items of evidence which served his interests and refused to discuss the CDRs.
151    FRA contends that the applicant’s arguments are unfounded.
152    In that connection, it should, in the first place, be recalled that the principle of respect for the rights of the defence requires that the person concerned must be afforded the opportunity effectively to make known his views on any information against him which might be taken into account in the measure to be adopted (see, to that effect, judgment of 12 May 2016, FS v EESC, F‑50/15, EU:F:2016:119, paragraph 115 and the case-law cited).
153    In the present case, it is apparent from the information before the Court that, first, FRA afforded the applicant the opportunity to submit written comments on the opinion of 24 February 2012 and the MSPP for the period 2012-2014.
154    Second, the applicant was heard by the new FRA Director
on 18 December 2015.
155    Third, the applicant submitted written comments on the minutes of the hearing of 18 December 2015.
156    Fourth, she submitted written comments prior to receiving the draft decision of 29 January 2016.
157    Fifth, she submitted written comments on that draft decision, followed by further written comments.
158    Sixth, the applicant’s argument alleging that the new FRA Director infringed her right to be heard by refusing to discuss the 2009 and 2010 CDRs during the hearing must be rejected. In so far as concerns the 2009 and 2010 CDRs, the new FRA Director had no need whatsoever to reopen the discussion on that subject since, as the applicant had not contested the 2009 and 2010 CDRs before the European Union judicature, they had become final.
159    Seventh, as to the alleged existence of a 2011 CDR, it is sufficient to state that the contested decision is not based on that CDR, but takes account of the opinion of 24 February 2012.
160    Eighth, it should be observed that, contrary to the applicant’s claim, she was granted 16 working days in which to submit written comments on the draft decision of 29 January 2016 and not 5 days, since she sent them on 22 February 2016.
161    Consequently, FRA cannot, in the circumstances of the present case, have infringed the applicant’s right to be heard.
162    In the second place, in a situation where the arguments put forward by the applicant also allege infringement of the principle of sound administration, it should be borne in mind that, pursuant to that principle, it is for the institution concerned to examine carefully and impartially all the relevant aspects of a case and to gather all the factual and legal information necessary to exercise its discretion, as well as ensure the proper conduct and effectiveness of the procedures that it implements (see, to that effect, judgment of 25 October 2018, KF v SatCen, T‑286/15, EU:T:2018:718, paragraph 176).
163    First, it must be observed that the fact that FRA did not renew the applicant’s contract in no way demonstrates, on its own, that FRA failed to take into account the facts relied upon and the evidence adduced by the applicant. As FRA rightly contends, the fact that the applicant’s comments are taken into consideration does not mean that FRA must necessarily endorse them.
164    Second, the applicant cannot claim that the new FRA Director relied solely on the information provided by the former FRA Director in order to make his decision. Whilst it is admittedly apparent from the minutes of the hearing that his decision was based on the information provided by the Director in post at the time — namely the 2009 and 2010 CDRs and the opinion of 24 February 2012 — the minutes also show that, in order to adopt the contested decision, the FRA Director examined the comments made by the applicant on 7 August 2015 on the implementation of the judgment on appeal and her statements at her hearing.
165    In the third place, in so far as, by her arguments, the applicant seeks to claim that the reasons given for the contested decision were insufficient, it is sufficient to recall that, as set out in paragraphs 138 to 144 above, (i) the reasons given for the contested decision were sufficient and (ii) FRA was under no obligation to respond to all the arguments put forward by the applicant.
166    The first part of the first plea must therefore be rejected as unfounded.
–       The second part: infringement of the right of access to the file
167    The applicant takes the view that the FRA Director’s refusal to grant her access to her personal file so that she might properly express her views on the documents used for the initial decision not to renew
gives rise to an infringement of Articles 25 and 26 of the Staff Regulations and Article 41(2)(b) of the Charter. In that connection, she relies on the delays in drawing up her CDRs and the fact that she was not in possession of all the documents on which the contested decision is based.
168    More specifically, the applicant claims that ‘the following documents were not communicated to [her] but it were taken into consideration for the negative decision: her CDRs 2009 and 2010, CDR 2011 (invoked in [the] negative decision but never drafted), [the] opinion of 24 [February] 2012, the updated Opinion [of] 24 [July] 2015, documents to prove negative characterization and defamatory statements inserted in CDRs; documents showing limited budgetary availability’.
169    Moreover, in order to defend herself properly against the unfounded allegations set out in the opinion of 24 February 2012, the applicant claims that she ought to have been granted access to internal emails, the intranet and witness statements.
170    For its part, FRA contends that the applicant’s arguments are unfounded.
171    In that connection, it should, in the first place, be recalled that Article 41(2) of the Charter states that the right to good administration includes, inter alia, the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy. The right of access to a personal file means that the institution in question must give to the person concerned the opportunity to examine all the documents in the investigation file that might be relevant for his defence. These include, in particular, both incriminating and exculpatory evidence, save for internal documents of the institution in question and other confidential information (judgment of 19 September 2018, Selimovic v Parliament, T‑61/17, not published, EU:T:2018:565, paragraph 78).
172    Article 26 of the Staff Regulations of Officials of the European Union — applicable by analogy in the present case by virtue of Article 11 of the Conditions of Employment of Other Servants of the European Union — provides that the personal file is to contain all documents concerning an official’s administrative status and all reports relating to his ability, efficiency and conduct, together with any comments by the official on such documents.
173    In the second place, it must be observed that the applicant cannot claim that she was not in possession of all existing documents on which the contested decision is based.
174    First, it is clear from the information before the Court that the applicant was able to submit complaints concerning her 2009 and 2010 CDRs, which she would not have been able to do had the CDRs not been in her possession.
175    Second, in so far as concerns the 2011 CDR, it should be recalled that there was no such CDR at the time when the initial decision not to renew was adopted, and was therefore not a factor that could have been taken into consideration.
176    In paragraphs 41 and 42 of the contested decision, the new FRA Director simply observed that the applicant’s head of department had given his views on the applicant’s performance throughout 2011 and concluded that there was therefore ‘a continuity of shortcomings throughout the years 2009, 2010 and 2011’.
177    Third, in so far as concerns the alleged updating, on 24 July 2015, of the opinion of 24 February 2012, it suffices to recall that it is in no way apparent from the information before the Court that that opinion had been updated or undergone the slightest amendment (see paragraph 143 above).
178    Fourth, as regards the documents to prove the negative assessment and defamatory statements included in the CDRs, it should be recalled that the applicant’s CDRs had become final, with the result that FRA was under no obligation to provide documents relating to the contents of those CDRs.
179    Fifth, regarding the documents showing limited budgetary resources, it should be observed that that is illustrated by the MSPP 2012-2014, which the applicant received by letter of 4 August 2015. It is apparent from page 10 of the MSPP on the subject of contractual agents in long-term employment that ‘all renewals of contract will be subject to an examination of the performance of the staff member and will depend on available budgetary provisions and the business needs for the function occupied’.
180    In the third place, in so far as the applicant claims that she ought to have had access to, inter alia, the emails remaining on FRA’s computer, the FRA intranet and witness statements of former FRA colleagues, it should be borne in mind that the provisions relied upon by the applicant confer a right of access to the personal file and the investigation file, and that the applicant has failed to show that those documents were in those files.
181    Consequently, the second part of the first plea and, accordingly, the first plea as a whole must be rejected.
The fourth plea: infringement of Article 266(1) TFEU
182    In support of her fourth plea in law, the applicant refers, first of all, to her complaint of 18 May 2016 and repeats the following points: the new FRA Director’s refusal to conduct a detailed analysis of the case; infringement of the applicant’s right to have her case handled impartially, fairly and within a reasonable time, in accordance with Article 41(1) of the Charter; and ‘diversion of execution of the judgment on appeal to harmful facts’.
183    Second, the applicant argues that, for the purposes of the proper exercise of her right to be heard, FRA was under an obligation to take measures entailing
the implementation of the judgment on appeal by placing itself in the legal situation as it stood at a date prior to that on which the opinion of 24 February 2012 was sent.
184    Lastly, she claims that the draft decision not to renew ought to have been sent to her prior to the meeting of 18 December 2015.
She argues that since that hearing took place prior to the communication of that draft decision, the applicant reasonably assumed that the new Director wished to take a positive decision.
185    FRA disputes the applicant’s arguments.
186    In the first place, as the applicant confines herself to referring to the contents of the complaint of 18 May 2016, it should be recalled that whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents cannot make up for the absence of the essential arguments in law, which must appear in the application itself in order to guarantee legal certainty and the sound administration of justice (see, to that effect and by analogy, order of 21 May 1999, Asia Motor France and Others v Commission, T‑154/98, EU:T:1999:109, paragraph 49, and judgment of 7 May 2009, NVV and Others v Commission, T‑151/05, EU:T:2009:144, paragraph 60).
187    It is settled case-law that any plea which is not adequately articulated in the application initiating proceedings must be held inadmissible (see, to that effect and by analogy, judgments of 13 September 2001, Michail v Commission, F‑100/09, EU:F:2011:132, paragraph 22, and of 30 June 2015, Petsch v Commission, F‑124/14, EU:F:2015:69, paragraph 21).
188    It therefore follows that, as it consists in a mere reference to the complaint of 18 May 2016, the fourth plea is inadmissible.
189    In the second place, it must be borne in mind that, in accordance with the case-law cited in paragraphs 131 to 134 of the present judgment, the institution whose act has been declared void is required, under Article 266 TFEU, to take the necessary measures to reverse the effects of the illegalities found to exist.
190    Where the annulled measure has already been implemented, the cancellation of its effects requires, in principle, that the legal situation in which the applicant found himself before the adoption of that measure be reinstated (see judgment of 31 March 2004, Girardot v Commission, T‑10/02, EU:T:2004:94, paragraph 84 and the case-law cited).
191    The new FRA Director was therefore required, in the present case, to resume the procedure for replacing the annulled measure at the exact point at which the unlawful act had occurred.
192    As is clear from paragraph 58 of the judgment on appeal, the initial decision not to review was annulled on account of the fact that the applicant had not been heard regarding all the factors taken into consideration by the AACC, in particular the opinion of 24 February 2012, prior to the adoption of that decision.
193    Consequently, contrary to the applicant’s claim, the Court did not intend, in paragraph 60 of the judgment on appeal, to call in question every stage in the adoption of the initial decision not to renew, but declared that decision unlawful only to the extent that the applicant had not been heard regarding the opinion of 24 February 2012 (see, by analogy, judgment of 17 April 2007, C and F v Commission, F‑44/06 and F‑94/06, EU:F:2007:66, paragraphs 42 and 43).
194    In that judgment, the Court found only that the head of department had sent an opinion concerning the renewal of the appellant’s contract to the AACC and the applicant had become aware of that opinion only after the adoption of the decision not to renew her contract of employment, without having had the opportunity to express her views in that regard, even though that opinion contained several reasons why the appellant’s contract should not be renewed (judgment on appeal, paragraph 60).
195    Thus, contrary to the argument put forward by the applicant, Article 266 TFEU did not require the new FRA Director to place himself in the legal situation as it stood prior to the date on which the opinion of 24 February 2012 was sent.
196    In the third place, it should be recalled that the Court held, in paragraph 54 of the judgment on appeal, that a decision such as the decision not to renew a contract of employment can be taken only after the person concerned has been given the opportunity to put forward his view concerning the draft decision, in the context of an oral and/or written exchange of views initiated by the AACC, proof of which must be adduced by the latter.
197    In the present case, FRA notified the applicant of the draft decision of 29 January 2016 and gave her the opportunity to submit written comments.
198    FRA therefore neither prejudged the situation nor adopted the draft decision before the applicant had been heard, with the result that FRA complied with its obligations under
Article 266 TFEU.
199    Moreover, it should be observed that the applicant also had the opportunity to express her views on the minutes of the hearing before receiving the draft decision. She was therefore given a further opportunity to submit comments.
200    Accordingly, all the arguments alleging infringement of Article 266 TFEU must be rejected.
201    Consequently, the fourth plea must be dismissed.
The eighth plea: infringement of the principle of sound administration
202    The applicant argues, in essence, first, that FRA infringed the principle of sound administration by holding a hearing with the new FRA Director only 2 days after he took up his duties. He could not, in the applicant’s view, have been in a position in such a short amount of time to study and fully understand the applicant’s case.
203    Secondly, it is claimed that FRA infringed the principle of sound administration in failing to grant the applicant a period of 5 days in which to reply to the draft decision not to renew, sent on 29 January 2016.
204    FRA contends that
the applicant’s arguments are unfounded.
205    As a preliminary point, it should be borne in mind that, pursuant to the principle of sound administration, it is for the administration to examine carefully and impartially all the relevant aspects of a case and to gather all the factual and legal information necessary to exercise its discretion, as well as ensure the proper conduct and effectiveness of the procedures that it implements (see paragraph 162 above).
206    In the first place, in so far as concerns the applicant’s argument that, at the hearing of 18 December 2015, the new FRA Director could not have sufficient understanding of her situation, it should be noted that the applicant has failed to demonstrate in any way why a period of 2 days was insufficient to allow the new FRA director to understand her case
fully.
207    In any event, the new FRA Director was able, at the hearing, to hear the applicant’s version of the facts justifying the non-renewal of her contract.
208    In the second place, as regards the applicant’s argument that the period of 5 days in which to submit her comments on the draft decision not to renew was insufficient, it suffices to observe that, as FRA rightly points out, the applicant was granted a period that was, in fact, 16 working days and not 5 days in which to submit her comments on the draft decision not to renew
sent to her on 29 January 2016, which cannot be regarded as insufficient in the circumstances of the present case.
209    Hence, the eighth plea must be rejected as unfounded.
The fifth plea: irregularities vitiating the acts preparatory to the contested decision
210    The applicant argues, in essence, that the contested decision should be annulled, in so far as it is based on the opinion of 24 February 2012, which is improper.
211    First, she claims that the opinion of 24 February 2012 is improper, in that it mentions a 2011 CDR when there was no such document, and that it contains various untrue statements, inter alia, about the applicant.
212    She adds that the opinion of 24 February 2012 was unilaterally amended on 24 July 2015 by the simple removal of any reference made to the 2011 CDR.
213    Secondly, the applicant points out that, on account of the irregularity which, she claims, vitiated the opinion of 24 February 2012, the draft decision of 29 January 2016 was equally improper, particularly as it does not take into account the various complaints put forward by the applicant.
214    FRA contends, for its part, that the applicant’s arguments are inadmissible, in that the Court did not call into question the validity of the opinion in its judgment and that, in any event, those arguments are unfounded.
215    In that connection, it should be borne in mind that acts preparatory, prior and necessary to a final decision, may not be the subject of a separate action for annulment, although their lawfulness may always be disputed in the course of an action directed against such a decision (see, to that effect, order of 8 October 2008, Gippini Fournier v Commission, T‑23/05, EU:T:2008:417, paragraph 62).
216    In the present case, as is apparent from the information before the Court and paragraph 143 of the present judgment, the opinion of 24 February 2019 was not the subject of any amendment relating to a reference to the 2011 CDR.
217    Second, the applicant cannot validly argue that the 2009 and 2010 CDRs remained open.
On the contrary, those two documents became
final in the absence of any action before the Court within the prescribed time limits.
218    Third, the applicant cannot claim that the draft decision of 29 January 2016 was improper on account of a failure to take into account the complaints she submitted to FRA. As is clear from paragraph 164 above, no irregularity has been established in that regard.
219    Consequently, the fifth plea must be rejected as unfounded.
The sixth plea: breach of FRA’s rules on renewal
220    The applicant argues, in essence, that there was a failure to comply with the procedure to be followed and the rights relating thereto, provided for in paragraphs 1.3 and 1.5 of Decision 2009/13 of the FRA Director, of 29 May 2009, regarding the renewal of the contract of employment of contract agents.
221    FRA disputes the merits of the applicant’s arguments.
222    In the first place, the applicant maintains that the opinion of 24 February 2012 was sent to her after the former FRA Director received it, in breach of paragraph 1.3 of Decision 2009/13.
223    It is apparent, in essence, from paragraph 1.3 of Decision 2009/13 that the head of department is to draft an opinion for the attention of the FRA Director, a copy of which is to be given to the contract agent.
224    In other words, it is in no way apparent from paragraph 1.3 of Decision 2009/13 that the applicant ought, in the present case, to have received the opinion of 24 February 2012 before or at the same time as the former FRA Director.
225    In any event, even assuming that the applicant maintains that FRA ought to have sent the opinion of 24 February 2012 to her prior to the adoption of the initial decision not to renew, it should be pointed out that the present action does not seek the annulment of that decision — which was annulled by the judgment on appeal — but the annulment of the contested decision, which was adopted after the applicant’s comments thereon had been sent and received.
226    The argument alleging infringement of paragraph 1.3 of Decision 2009/13 must therefore be rejected.
227    In the second place, the applicant argues that FRA failed to send her the letter giving notice and information concerning the procedure to be followed, in breach of paragraph 1.5 of Decision 2009/13. She claims, in essence, that, following the annulment of the initial decision not to renew, FRA ought to have sent her a further letter, 6 months prior to the end of her contract.
228    In that connection, it should be recalled that paragraph 1.5 of Decision 2009/13 provides, in essence, that 6 months before the expiry date of the contract, the staff member is to receive a letter stating either that his contract will be renewed or that his contract will come to an end on a specific date.
229    In the present case, it is clear that FRA fulfilled that obligation by sending to the applicant, on 27 February 2012, a letter informing her that her contract would expire on 31 August 2012, with the result that it cannot be claimed that it failed to fulfil that obligation.
230    As regards the argument alleging that FRA ought to have sent a further letter, it should be borne in mind that the adoption of the contested decision is the result of the annulment, by the judgment on appeal, of the initial decision not to renew, with the result that FRA had to give effect to the legal consequences of the annulment, pursuant to Article 266 TFEU.
231    In other words, the procedure for adopting the contested decision was not only governed by Decision 2009/13, but also and above all by the obligations incumbent on the administration on the basis of Article 266 TFEU.
232    The initial decision not to renew was annulled only on the ground of infringement by FRA of the applicant’s right to be heard concerning the opinion of 24 February 2012, an unlawful act which was remedied on 18 December 2015 following the applicant’s hearing before the new FRA Director.
233    Thus, in the circumstances of the present case, where such a letter was sent and the initial decision not to renew was annulled on the ground of infringement of the right to be heard, it cannot be held that FRA was under an obligation to send a further letter to the applicant.
234    The argument alleging breach of paragraph 1.5 of Decision 2009/13, on account of the failure to send the letter giving notice and information concerning the procedure to be followed, must therefore be rejected.
235    In the third place, the applicant maintains that the author of the opinion of 24 February 2012 acted in a biased manner and lacked objectivity, in breach, in essence, of paragraph 1.3 of Decision 2009/13.
236    In that connection, it should be recalled that, pursuant to Article 76(d) of the Rules of Procedure, the application must contain, in addition to the subject matter of the dispute, pleas in law and arguments relied on and a summary of those pleas in law. Moreover, in order to ensure legal certainty and the sound administration of justice, it is necessary, in order for an action to be admissible, that the essential matters of law and fact relied on are stated coherently and intelligibly in the application itself.
237    It should be noted that, in her application, the applicant merely mentions such
bias
and lack of objectivity, without substantiating her line of argument on that point.
238    The applicant claims, admittedly, that OLAF’s letter of 30 August 2017, lodged with the Court Registry on 11 September 2017, informing her of the completion of an OLAF investigation into possible irregularities in public procurement at FRA in 2013, shows that the author of the opinion of 24 February 2012 gave a negative opinion of the applicant in so far as she was aware of such irregularities.
239    The fact nonetheless remains that, irrespective of the findings of the OLAF investigation and the date of the calls for tender targeted by that investigation, it cannot be inferred from that letter that the author of the opinion of 24 February 2012 either acted in a biased manner or lacked objectivity.
240    Consequently, that argument must also be rejected.
241    In the fourth place, the applicant argues that FRA failed to comply with the provisions of Decision 2009/13, in that the author of the opinion of 24 February 2012 had a conflict of interest on account of his position as FRA Interim Director in 2015.
242    It is clear that the contested decision was not adopted by the author of the opinion of 24 February 2012, but by the new FRA Director, who took up his duties on 16 December 2015, prior to the applicant’s hearing.
243    There can therefore be no finding of infringement of Decision 2009/13 on that point.
244    In the fifth place, the applicant maintains that the new FRA Director failed to send her the amended opinion of 24 February 2012, but sent it to FRA’s external legal counsel.
245    In that respect, first, it should be recalled that it is not apparent from the information before the Court that the opinion of 24 February 2012 was amended (see paragraph 143 above).
246    Secondly, it should be observed that the applicant was duly informed by FRA that it would task its external legal counsel with sending the opinion of 24 February 2012 to the applicant.
247    Consequently, there can be no finding of irregularity on this point.
248    The sixth plea must therefore be rejected as unfounded.
The third plea: conflict of interest, non-observance of the interest of the service, misuse of powers, manifest error of assessment and misapplication of the principle of retroactivity
249    The present plea is divided into four parts.
250    The first part alleges conflict of interest. The second branch alleges breach of interest of the service. The third part alleges manifest error of assessment, and the fourth part, misapplication of the principle of retroactivity.
251    FRA contends that the third plea is inadmissible and, in any event, unfounded.
–       The first part: conflict of interest
252    The applicant claims, in essence, that the FRA Director at the time when the initial decision not to renew was adopted and the author of the opinion of 24 February 2012 had a conflict of interest.
253    She refers, on that point, to the comments made in the context of her complaint she sent to FRA on
18 May 2016, and the application lodged at the Court Registry in Case T‑838/16, BP v FRA.
254    FRA contends that the applicant’s arguments are unfounded.
255    In that connection, it should be recalled from the outset that whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents cannot make up for the absence of the essential arguments in law, which must appear in the application in order to guarantee legal certainty and the sound administration of justice (see, to that effect and by analogy, order of 21 May 1999, Asia Motor France and Others v Commission, T‑154/98, EU:T:1999:109, paragraph 49, and judgment of 7 May 2009, NVV and Others v Commission, T‑151/05, EU:T:2009:144, paragraph 60).
256    The applicant cannot therefore confine herself to referring to both her written submissions in a separate case and the comments she made in the context of a complaint submitted to FRA.
257    In so far as concerns, first, the alleged conflict of interest on the part of the former FRA Director when the initial decision not to renew was adopted, it is clear that that decision was annulled by the judgment on appeal and is therefore not the subject of the present action.
258    The applicant cannot therefore rely on an alleged conflict of interest on the part of the former FRA Director for the purposes of the annulment of the contested decision.
259    In so far as concerns, secondly, the author of the opinion of 24 February 2012, it should be pointed out that FRA chose not to involve the latter, who served as Interim Director over the period from 3 June 2015, the date of the judgment on appeal, and 16 December 2015, the date on which the new Director took up his duties, and await the arrival of the new Director before hearing the applicant.
260    In those circumstances, from an objective point of view, there cannot be said to be conflict of interest in that regard.
261    Furthermore, as is apparent from paragraphs 237 and 239 of the present judgment, it cannot be inferred from the evidence submitted by the applicant to the Court that the author of the opinion of 24 February 2012 acted in a biased manner.
262    Consequently, the applicant’s argument alleging that there was a conflict of interest on the part of the author of the opinion of 24 February 2012 must be rejected.
263    The first branch of the third plea must therefore be rejected.
–       The second part: misuse of powers and non-observance of the interest of the service by the former FRA Director
264    The applicant relies on alleged non-observance of the interest of the service, in that she was not kept in post, and a misuse of powers on the part of the former FRA Director.
265    She argues that ‘the former FRA [D]irector … misused his powers when [he] took the decision to terminate the applicant’s contract’ and ‘the interest of the service required to retain the applicant in the post’.
266    FRA contends that the second part of the third plea is manifestly inadmissible.
267    In that connection, it should be observed that the applicant refers, in that part, only to the decision adopted by the former FRA Director, namely the initial decision not to renew.
268    That decision was annulled by the judgment on appeal and is not the subject of the present application for annulment.
269    The second part of the third plea must therefore be rejected as inadmissible.
–       The third part: manifest error of assessment
270    The applicant relies on a manifest error of assessment on FRA’s part, in that the handling of her case is ‘manifestly implausible’.
271    FRA contends that the applicant’s arguments are unfounded.
272    In that regard, it is clear that the applicant simply makes a general reference to ‘evidence appended to her applications’ and to ‘many other evidences she could not append’.
273    It should be borne in mind that, whilst the body of the application may be supported and supplemented, in regard to specific points, by references to extracts of documents appended thereto, a general reference to the annexes to the application, in order to indicate essential parts of the legal arguments, does not satisfy the requirements of the Rules of Procedure. Since the annexes have a purely evidential and auxiliary function, it is not for the Court to seek and identify in the annexes the grounds on which it may consider the action to be based (see, to that effect, order of 29 November 1993, Koelman v Commission, T‑56/92, EU:T:1993:105, paragraphs 21 and 23). Nor is it for the Court to guess the content of ‘many evidences [which the applicant] could not append’ and speculate as to its importance for the case in point.
274    The third part of the third plea must therefore be rejected as inadmissible.
–       The fourth part: misapplication of the principle of retroactivity
275    The applicant alleges misapplication of the principle of retroactivity, in that the MSPP 2012-2014, sent to her by FRA in the course of the implementation of the judgment on appeal, was no longer in force.
276    Furthermore, it is argued that the application of that MSPP rather than the MSPP 2015-2017 goes against the principles of protection of legitimate expectations and legal certainty.
277    FRA contends that the applicant’s arguments are unfounded.
278    In that regard, it should be observed that the applicant misinterprets the fact that, in accordance with the settled case-law cited in paragraphs 133 and 134 above, FRA had to have regard to the legal situation as it stood at the time of the initial decision not to renew.
279    At the time the initial decision not to renew was adopted, the MSPP 2012-2014 was indeed in force, with the effect that the principles of retroactivity, protection of legitimate expectations and legal certainty were not infringed because the MSPP 2015-2017 had not been applied.
280    The fourth part of the third plea must therefore be rejected as unfounded.
281    Moreover, as regards the new facts which emerged during the proceedings and the evidence on which the applicant relies in her reply, they are both irrelevant and inadmissible.
282    In so far as concerns, first, the new facts relating to the initial decision not to renew and to the former FRA Director, which,
according to the applicant, demonstrated, inter alia, the conflict of interest on the part of the former FRA Director, it should be recalled that the subject matter of the present action is the contested decision, namely the decision of 4 April 2016 not to renew, not the initial decision not to renew adopted by the former FRA Director, which was annulled by the judgment on appeal.
283    Secondly, the applicant has submitted further evidence in support of the new facts relating to the FRA Interim Director who, inter alia, according to the applicant, made false statements concerning FRA’s budgetary restrictions and disclosed the applicant’s personal data in connection with a request for access to documents.
284    In that connection, first, the evidence submitted by the applicant relates to documents which were in the applicant’s possession before the reply was lodged, in so far as they are the same as those placed on the files in separate cases, namely Cases T‑917/16 REV and T‑838/16, BP v FRA.
285    The applicant has failed to justify, to the requisite legal standard, either the late lodging of those documents or the existence of new facts which emerged over the course of the proceedings in the present case, with the result that they must be rejected as inadmissible.
286    Secondly, the applicant makes reference to the evidence submitted in Cases T‑917/16 REV and T‑838/16, BP v FRA.
287    It should be borne in mind that each case brought before the Court has its own file, containing in particular the procedural documents produced by the parties in that case, and that each of those files is entirely independent (judgment of 26 October 2016, Hamcho and Hamcho International v Council, T‑153/15, EU:T:2016:630, paragraph 33).
288    Consequently, the applicant cannot confine herself to referring to evidence submitted in Cases T‑917/16 REV and T‑838/16, BP v FRA, for the purposes of it being taken into account in the present case, even though those cases involve the same parties.
289    Thirdly, the applicant refers to the annexes to the rejoinder lodged by FRA in Case T‑838/16, BP v FRA, in order to establish new facts relating to the new FRA Director.
290    In accordance with the case-law cited in paragraph 287 of the present judgment, the applicant cannot simply refer to the annexes to FRA’s rejoinder in Case T‑838/16, BP v FRA.
291    Accordingly, the third plea must be rejected in its entirety.
The second plea: unlawfulness of FRA’s rules
292    The present plea in law comprises three parts.
293    The first part alleges that the rules on appraisal are unlawful. The second part alleges that the rules on reclassification are unlawful, and the third part alleges that the rules on renewal are unlawful.
–       The first part: unlawfulness of the rules on appraisal
294    The applicant claims, in essence, that the absence of lawful rules on appraisal had a direct effect on the lawfulness of the CDRs adopted on the basis of unlawful guidelines and procedure, and an indirect effect on the opinion of 24 February 2012, the draft decision and the contested decision. She asks the Court, in that connection, to declare FRA’s rules on appraisal unlawful at the time of her appraisal in 2009 and 2010.
295    In that regard, it is necessary, as a preliminary point, to refer to the considerations set out in paragraph 76 above.
296    In so far as concerns the 2009 and 2010 CDRs, which were admittedly taken into account by FRA in support of the adoption of the contested decision, even if
it were established that the rules on appraisal were unlawful, that cannot entail the annulment of the CDRs, as those reports are
final
with regard to the applicant.
297    Thus, as the 2009 and 2010 CDRs have become final, the lawfulness of the opinion of 24 February 2012, the draft decision and the contested decision cannot be disputed, inasmuch as they refer to the 2009 and 2010 CDRs.
298    The arguments that FRA’s rules on appraisal are unlawful must therefore also be rejected.
–       The second part: unlawfulness of the rules on reclassification
299    The applicant claims that the absence of lawful rules on reclassification, together with the delays in drawing up her CDRs, denied her the benefit of a reclassification procedure.
300    As FRA rightly points out, the rules on reclassification do not form the legal basis of the contested decision, and nor are they a matter of public policy, contrary to the applicant’s claims.
301    Consequently, the second part of the second plea must be rejected as inoperative.
–       The third part: unlawfulness of rules on renewal
302    The applicant argues that FRA Decision 2009/13 contains contradictory articles which affect the proper observance of the two components of the rights of the defence. She adds that that decision was adopted by an authority without competence to do so and that the Staff Committee was not consulted prior to the adoption of the decision.
303    FRA disputes those arguments.
304    In that connection, it should, in the first place, be borne in mind that the summary of the pleas relied on must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. Similar requirements are called for where a submission is made in support of a plea in law (judgment of 14 December 2005, Honeywell v Commission, T‑209/01, EU:T:2005:455, paragraph 55).
305    In the present case, first, it is clear that the applicant has failed to support, in her written submissions, the arguments she puts forward with regard to the unlawfulness of the rules on renewal.
306    Secondly, whilst she admittedly relies on an alleged contradiction between Articles 3 and 5 of Decision 2009/13, she has failed to explain how those articles are contradictory. The same applies to her argument alleging a lack of competence on the part of the author of Decision 2009/13, especially since the applicant has failed to clarify in any way the legal basis which might establish that lack of competence.
307    In the second place, the applicant claims that the Staff Committee was not consulted prior to the adoption of Decision 2009/13.
308    On that point, it is clear that Decision 2009/13 states, in the preamble thereto, that that committee had indeed been consulted. The applicant cannot, therefore, simply claim that that was not the case.
309    Accordingly, the third part of the second plea and, accordingly, the second plea in its entirety, must be rejected.
310    The action for annulment must therefore be dismissed.
The claim for compensation
311    In support of her claim for compensation, first, the applicant maintains that she suffered damage as a result of the contested decision and the unlawful implementation of the judgment on appeal. Secondly, the applicant claims that she suffered damage as a result of the adoption by FRA of unlawful rules on appraisal, reclassification and renewal, and as a result of the delay in drawing up the CDRs.
312    Furthermore, the applicant claims that the Court should order FRA to pay default interest at the European Central Bank (ECB) reference rate, increased by two percentage points, on the amount actually awarded, or to pay any other interest which the Court deems just and appropriate.
313    In the first place, it should be recalled that, pursuant to the second paragraph of Article 340 TFEU, in the case of non-contractual liability, the European Union is, in accordance with the general principles common to the laws of the Member States, to make good any damage caused by its institutions or by its servants in the performance of their duties.
314    In the second place, according to settled case-law regarding civil service matters, the European Union can be held liable for damages only if a number of conditions are satisfied as regards the illegality of the allegedly wrongful act committed by the institutions, the actual harm suffered and the existence of a causal link between the act and the damage alleged to have been suffered. Those three conditions are cumulative, which means that if one of them is not satisfied the European Union cannot be held non-contractually liable (judgment of 17 May 2017, PG v Frontex, T‑583/16, not published, EU:T:2017:344, paragraph 97).
315    Lastly, claims for compensation of material or non-material damage must be rejected where, as in the present case, they are closely linked with the claims seeking annulment, which themselves were rejected as inadmissible or unfounded (see, to that effect, judgment of 30 April 2014, López Cejudo v Commission, F‑28/13, EU:F:2014:55, paragraph 105 and the case-law cited).
316    In the present case, the claim for compensation based on the unlawfulness of the contested decision and the failure to properly implement the judgment on appeal are closely linked with the application for annulment of the contested decision, which has been dismissed.
317    Accordingly, the claim for compensation as a result of the unlawfulness of the contested decision and the failure to properly implement the judgment on appeal must be rejected.
318    In the second place, in support of her claim for compensation, the applicant alleges that the rules on appraisal, reclassification and renewal are unlawful and relies on the delay in drawing up the CDRs, with the result that it is necessary to assess the merits of her claim in the light of the case-law cited above.
319    First of all, the applicant claims that the absence of lawful rules on appraisal had an effect on the lawfulness of (i) the CDRs adopted on the basis of unlawful guidelines and procedure and (ii) the opinion of 24 February 2012, the draft decision and the contested decision. She asks the Court to declare FRA’s rules on appraisal unlawful at the time of her appraisal in 2009 and 2010.
320    In that connection, it should be borne in mind that an action for compensation must be declared inadmissible when it is actually aimed at securing withdrawal of
an individual decision which has become final and would, if upheld, have the effect of nullifying the legal effects of that decision (see, to that effect, judgments of 26 February 1986, Krohn Import-Export v Commission, 175/84, EU:C:1986:85, paragraphs 32 and 33, and of 15 March 1995, Cobrecaf and Others v Commission, T‑514/93, EU:T:1995:49, paragraph 59).
321    However, it is contrary to the autonomy of an action for compensation, and to the effectiveness of the system of remedies established by the Treaty, to consider that an action for compensation is inadmissible on the sole ground that it might lead to a result comparable to the results of an action for annulment. It is only where an action for compensation is actually aimed at securing withdrawal of an individual decision addressed to the applicant which has become definitive that the action for compensation could be considered to be an abuse of process (judgment of 28 February 2018, Vakakis kai Synergates v Commission, T‑292/15, not published, EU:T:2018:103, paragraph 31).
322    In the present case, in relying on the alleged unlawfulness of FRA’s rules on appraisal, the applicant seeks indirectly to challenge the lawfulness of the 2009 and 2010 CDRs, which have become final.
323    Even assuming that the rules on appraisal were unlawful, that would have the effect of rendering the 2009 and 2010 CDRs improper, allowing the applicant to get around the fact that she did not bring an action for annulment of those CDRs within the time limits prescribed.
324    The claim for compensation must therefore be dismissed as inadmissible, in that it is based on a claim that FRA’s rules on appraisal are unlawful.
325    Secondly, the applicant claims that the absence of lawful rules on reclassification, together with the delays in drawing up her CDRs, denied her the benefit of a reclassification procedure.
326    In that connection, it should be recalled that the summary of the pleas relied on must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. Similar requirements are called for where a submission is made in support of a plea in law (judgment of 14 December 2005, Honeywell v Commission, T‑209/01, EU:T:2005:455, paragraph 55).
327    It is clear, first, that the applicant has failed to support in any way her application on that point and confines herself to referring to the audit report of the European Commission’s Internal Audit Service, with no indication as to the relevant annex.
328    Secondly, the applicant claims that the Staff Committee ought to have been consulted prior to the adoption of rules on reclassification, without demonstrating that that was not the case.
329    Thirdly, the applicant maintains that it is a matter of public policy, which the General Court ought to address of its own motion. However, it should be noted that such an infringement cannot lead the Court to address the matter of its own motion. On the contrary, it was for the applicant to establish, to the requisite legal standard, that the rules on reclassification are unlawful, which is not apparent from her written submissions.
330    Consequently, the complaint alleging that FRA’s rules on reclassification are unlawful must be declared inadmissible.
331    Lastly, the applicant argues that FRA Decision 2009/13 contains contradictory articles which affect the proper observance of the two components of the rights of the defence. She adds that that decision was adopted by an authority without competence to do so and that the Staff Committee was not consulted prior to the adoption of the decision.
332    In accordance with paragraphs 302 to 309 of the present judgment, the complaint alleging that FRA’s rules on renewal are unlawful must be rejected.
333    In so far as there has been no finding of unlawfulness vitiating FRA’s conduct, the claim for compensation, along with the fourth head of claim in the action, whereby the applicant requests that the Court ensure that proper effect is given to its decision, must be dismissed. Since the applicant has also referred to the Court exercising its full jurisdiction, assuming that the second sentence of Article 91(1) of the Staff Regulations is applicable, it should be noted that the examination of the pleas in law has not disclosed any factors justifying its exercise in the present case.
334    The action must, therefore, be dismissed in its entirety.
Costs
335    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.
336    Since the appellant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by FRA.
On those grounds,
THE GENERAL COURT (Fifth Chamber),
hereby:
1.      Dismisses the action;
2.      Orders BP to bear her own costs and pay those incurred by the European Union Fundamental Rights Agency (FRA).
Labucka
Dittrich
Ulloa Rubio
Delivered in open court in Luxembourg on 11 July 2019.
E. Coulon
Registrar
President
*      Language of the case: English.
1 Confidential information omitted.