ORDER OF THE GENERAL COURT (Seventh Chamber)
14 April 2021 (*)
(Action for annulment and for damages – Civil service – Officials – Request for information – Rejection of a complaint – No act adversely affecting the applicant – Action manifestly inadmissible)
In Case T‑462/20,
ZU, represented by C. Bernard-Glanz, lawyer,
applicant,
v
European Commission, represented by I. Melo Sampaio, L. Vernier and D. Milanowska, acting as Agents,
defendant,
APPLICATION pursuant to Article 270 TFEU seeking, in the first place, annulment, first, of the Commission’s letter of 5 September 2019 refusing to answer the applicant’s questions and, second, of the Commission’s letter of 6 April 2020 rejecting his complaint and, in the second place, compensation for the damage allegedly suffered by the applicant as a result of those measures,
THE GENERAL COURT (Seventh Chamber),
composed of R. da Silva Passos, President, I. Reine and L. Truchot (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1        The applicant, ZU, entered the service of the European Commission on 1 June 2007, when he was assigned to the European Anti-Fraud Office (OLAF) in Brussels (Belgium) until 29 February 2016.
2        As from 1 March 2016, the applicant was assigned to the European External Action Service (EEAS), within the European Union Delegation to Russia (‘the delegation’), based in Moscow (Russia). He held the post of Trade Affairs Manager in the Trade and Economic Section of the delegation.
3        By note of 14 September 2018, the Commission informed the applicant of its intention to transfer him back to his original Directorate-General, OLAF, in Brussels. In order to justify that decision, the Commission stated, in particular, as follows:
‘… you have not demonstrated the necessary conduct and flexibility to adapt to the diplomatic environment and you failed to meet the requirements of the job. The need for a significant improvement of your performance has been communicated in your two consecutive appraisal reports (2016 and 2017). However, there was no improvement so far.’
4        By email of 26 September 2018, the applicant submitted his comments to the Commission.
5        By note of 12 October 2018, the Commission responded to the applicant’s observations. It made no change to its assessment of the applicant’s performance and decided, on the basis of Article 7 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), to transfer him to OLAF in the interests of the service.
6        With effect from 1 December 2018, the applicant was assigned to OLAF.
7        Furthermore, the applicant was informed by letter of 1 March 2019 that the Investigation and Disciplinary Office of the Commission (IDOC) had been instructed to conduct an administrative inquiry into his conduct while he was in post at the delegation, both in a professional context and in the private sphere.
8        In addition, in May 2019, a Polish court informed the applicant that his wife had commenced divorce proceedings.
9        On 22 August 2019, the applicant sent a letter to the Director-General for Human Resources and Security (‘the letter of 22 August 2019’).
10      In the letter of 22 August 2019, the applicant referred to the fact that an administrative inquiry into his conduct had been initiated. He also referred to the divorce proceedings initiated by his wife in Poland. He stated that she had had contact with various EU departments, both in Brussels and in Moscow. In that context, the applicant sought to obtain certain ‘clarifications’ and ‘explanations’ concerning the exchanges which his wife had had with those departments and the measures which those departments might have adopted following those exchanges. He asked the Director-General for Human Resources and Security:
–        ‘to clarify who contacted [his] spouse on behalf of which EU service(s), when exactly, and on what basis she was invited to make allegations against her husband;
–        to clarify, which particular services of EC and EEAS (including delegation) were notified about [his] wife’s allegations and when;
–        to explain why [he had not been] confronted with these allegations by competent EU services within a reasonable time after the institution(s) became aware of them and, in any case, before the initiation of [his] forced transfer from Moscow to Brussels;
–        why the Brussels headquarters [had] asked [his] spouse to reveal some facts, allegedly charging [his] person, specifically to [his] hierarchy in Moscow and not to competent services in Brussels;
–        to explain why the competent services [had] not initiated any relevant proceedings shortly after receiving [his] spouse’s allegations in 2017 aimed at verifying facts relating to [his] alleged misconduct in the private sphere;
–        what specific measures [had] been taken by competent services (EEAS/EC) and when to follow-up on [his] wife’s allegations received in 2017 and 2018.’
11      In the letter of 22 August 2019, the applicant claimed that the answers to his questions were relevant for the divorce proceedings initiated by his wife and in order to establish which bodies or institutions of the European Union were responsible for the failure to adopt appropriate measures in his regard.
12      By letter of 5 September 2019, the Commission refused to answer the applicant’s questions contained in the letter of 22 August 2019 (‘the contested measure’).
13      By letter of 5 December 2019, the applicant lodged a complaint against the contested measure (‘the complaint’). In that letter, he also submitted a request for assistance on the basis of Article 24 of the Staff Regulations and a claim for compensation for the damage allegedly caused to him by the contested measure and the administration’s mishandling of his wife’s allegations against him.
14      In the complaint, the applicant, in order to establish, inter alia, that the contested measure adversely affected him, claimed that, since he was not able to ‘prepare a defence against his spouse’s pleas’, that measure was likely to have consequences for his legal situation in the divorce proceedings initiated by her.
15      By letter of 6 April 2020, the Commission rejected the applicant’s complaint (‘the decision rejecting the complaint’). In the same letter, it also refused his request for assistance and rejected his claim for compensation. It took the view, inter alia, that, by his complaint, the applicant was challenging the administrative inquiry into his conduct and that such a challenge was premature, as the administration had not adopted a definitive position at that stage.
16      By letter of 6 July 2020, the applicant lodged a complaint against the decision of 6 April 2020 refusing his request for assistance. He also made another claim for compensation in respect of the damage allegedly caused to him by a number of acts identified in his request for assistance.
Procedure and forms of order sought
17      By application lodged at the Registry of the General Court on 16 July 2020, the applicant brought an action ‘pursuant to Article 270 [TFEU] and Article 91 of the Staff Regulations’ seeking annulment of the contested measure and of the decision rejecting the complaint.
18      On a proposal from the Judge-Rapporteur, the Court (Seventh Chamber), in the context of the measures of organisation of procedure provided for in Article 89 of its Rules of Procedure, asked the applicant to submit his written observations on whether there was an absolute bar to proceedings on the ground that there was no act adversely affecting him, since the applicant’s challenge could be regarded as premature in so far as the administration had not yet definitively adopted its position regarding the administrative inquiry initiated into his conduct. The applicant replied within the prescribed period that his claims did not concern that inquiry, but other procedures, in particular the divorce proceedings initiated by his wife.
19      The applicant claims that the Court should:
–        annul the contested measure and the decision rejecting the complaint;
–        order the Commission to pay an amount of EUR 50 000, in compensation for the non-material damage suffered, together with interest at the legal rate until payment in full has been made;
–        order the Commission to pay the costs.
20      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
21      Under Article 126 of the Rules of Procedure, where it is clear that the Court has no jurisdiction to hear and determine an action or where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings. In the present case, the Court considers that it has sufficient information from the documents in the file and therefore has decided to give a decision without taking further steps in the proceedings.
Subject matter of the dispute
22      In the first place, as is apparent from the wording of the application, in particular from paragraphs 2 and 77 thereof, the subject matter of the dispute, as regards the claim for annulment contained therein, covers only the contested measure and the rejection of the complaint.
23      At no time does the applicant seek annulment of the refusal, dated 6 April 2020, of the request for assistance which he submitted by letter of 5 December 2019 (see paragraphs 13 and 15 above).
24      In any event, such claims would be manifestly inadmissible.
25      It should be noted that Articles 90 and 91 of the Staff Regulations make the admissibility of an action brought by an official against the institution to which he or she belongs conditional on the proper conduct of the prior administrative procedure. In particular, under Article 91(2) of the Staff Regulations, appeals against an act adversely affecting an official lie only if the appointing authority has previously had a complaint submitted to it pursuant to Article 90(2) of the Staff Regulations within the required time limit, and if that complaint has been rejected by an express or implied decision (judgment of 15 January 1985, Pasquali-Gherardi v Parliament, 168/83, EU:C:1985:5, paragraph 11, and order of 25 March 2015, Singou v Council, F‑143/14, EU:F:2015:27, paragraphs 10 to 15).
26      It is not apparent from the documents in the file that the complaint of 6 July 2020, submitted against the decision of 6 April 2020 refusing the applicant’s request for assistance (see paragraph 16 above), was rejected by a decision which predated the lodging of the application of 16 July 2020 (see paragraph 17 above).
27      In the second place, according to settled case-law, a claim for annulment formally directed against the decision rejecting a complaint has the effect of bringing before the Court the act against which the complaint was submitted, where that claim, as such, lacks any independent content (see judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 63 and the case-law cited).
28      However, where the scope of the decision rejecting the complaint differs from that of the measure against which that complaint was made, in particular when it amends the initial decision or where it contains a re-examination of the applicant’s situation on the basis of new matters of law and of fact which, if they had arisen or had been known to the competent authority before the adoption of the initial decision, would have been taken into consideration, the General Court may find it necessary to rule specifically on the claims formally directed against the decision rejecting the complaint (see judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 36 and the case-law cited).
29      In the present case, the decision rejecting the complaint merely confirmed the contested measure without altering it and without relying on a re-examination of the applicant’s situation in the light of new matters of law and of fact.
30      Consequently, the claim for annulment in the present action must be regarded as seeking the annulment of the contested measure.
31      In any event, even if the claim for annulment was also directed against the decision rejecting the complaint, it would have to be rejected as being manifestly inadmissible (see paragraphs 37, 48 and 49 below).
Admissibility of the claim for annulment submitted pursuant to Article 270 TFEU
32      It should be noted that, under Article 91(1) of the Staff Regulations, only actions brought against an act adversely affecting the applicant are admissible.
33      According to settled case-law, only measures the legal effects of which are binding on, and capable of affecting, directly and immediately, the interests of the applicant by bringing about a distinct change in his or her legal position are acts or decisions which may be the subject of an action for annulment (see judgment of 23 November 2016, Alsteens v Commission, T‑328/15 P, not published, EU:T:2016:671, paragraph 113 and the case-law cited).
34      In the present case, the applicant seeks annulment of the contested measure, by which the Commission refused to answer his questions set out in the letter of 22 August 2019, and of the decision rejecting the complaint by which the Commission confirmed that refusal.
35      By the questions referred to in paragraph 34 above, which were addressed to the Director-General for Human Resources and Security, the applicant sought to obtain certain ‘clarifications’ and ‘explanations’ in relation to contact which allegedly took place between his wife and various EU departments.
36      In the light of its subject matter and wording (see paragraph 10 above), such a letter, which can at most be treated as a mere request for information, cannot be regarded as a formal request for a decision by the administration, for the purpose of Article 90(1) of the Staff Regulations, that is to say, an act capable of producing legal effects. (see order of 15 February 1995, Moat v Commission, T‑112/94, EU:T:1995:31, paragraph 22 and the case-law cited).
37      Consequently, the Commission’s refusal to provide the applicant with the ‘clarifications’ and ‘explanations’ which he requested – as it appears from the contested measure and from the rejection of the complaint which confirmed that measure – cannot be regarded as an act adversely affecting the applicant.
38      The conclusion in paragraph 37 above cannot be called into question by the arguments put forward by the applicant.
39      In the first place, the applicant has not established that, if the explanations and clarifications which he requests are not provided, his ability to ‘prepare a defence against his spouse’s pleas’ in the divorce proceedings would be adversely affected.
40      In that regard, in the letter of 22 August 2019, the applicant refers to two pleas in law on which his wife bases her claims, namely, first, the allegation that she was the victim of domestic abuse and, second, the fact that he was transferred to OLAF ‘due to [his] excessive interest in contacts with the Russian side’.
41      Those two pleas, however, have no obvious links with any contact that the applicant’s wife might have had with the departments of the Commission or of the EEAS and therefore with the explanations and clarifications requested by the applicant.
42      Moreover, as regards the second plea, the Commission, when it adopted the decision to transfer the applicant to OLAF, did not rely on possible contact between him and ‘the Russian side’, but on the difficulties he encountered in satisfying the requirements of the post he occupied (see paragraphs 3 and 5 above).
43      Furthermore, the applicant has not established, and does not even allege, that the documents in the file relating to the divorce proceedings, in particular the evidence on which his wife based her pleas, have not been communicated to him.
44      Lastly, the link between any contact that the applicant’s wife might have had with the services of the Commission or of the EEAS and his ability to establish that his wife was responsible for ‘the erosion of their marriage’ is too indirect and implausible for it to be found that the contested measure is capable of adversely affecting the applicant’s right to an effective remedy and, in particular, his ability to defend his interests in the divorce proceedings.
45      Similarly, in the second place, the link between any contact that the applicant’s wife might have had with the departments of the Commission or of the EEAS and his ability to bring an action before a national court against certain Commission staff members whom the applicant suspects of having committed criminal offences is too indirect and implausible for it to be concluded that the contested measure is capable of infringing the applicant’s right to an effective remedy.
46      In the third place, the applicant, in response to the measure of organisation of procedure referred to in paragraph 18 above, stated that, if he had obtained the ‘clarifications’ and ‘explanations’ which he had requested, he would have been better able to assert his rights in four other sets of proceedings which he had brought before the Court, namely in Cases T‑671/18, T‑140/19, T‑689/19 and T‑499/19.
47      However, it is for the applicant, if he considers it appropriate, to request that the Court, in the context of the abovementioned proceedings, adopt, on the basis of Articles 89 and 91 of the Rules of Procedure, measures of organisation of procedure or measures of inquiry, and the Court has jurisdiction under those provisions to grant such requests if it considers that those measures are necessary for the resolution of the disputes in question.
48      Consequently, the contested measure and the decision rejecting the complaint which confirms it are not capable of infringing the applicant’s right to an effective remedy in the context of disputes before the Court to which he is a party.
49      It follows from the findings above that, in the absence of an act adversely affecting the applicant, the claim for annulment submitted by the applicant must be rejected as being manifestly inadmissible.
Claim for compensation
50      According to case-law, under the system of remedies established by Articles 90 and 91 of the Staff Regulations, an action for damages, which constitutes an autonomous remedy, separate from the action for annulment, is admissible only if it has been preceded by a pre-contentious procedure in accordance with the provisions of the Staff Regulations. That procedure differs according to whether the damage for which reparation is sought results from an act having adverse effects within the meaning of Article 90(2) of the Staff Regulations or from conduct on the part of the administration which contains nothing in the nature of a decision. In the first case, it is for the person concerned to submit to the administration, within the prescribed time limits, a complaint directed against the act in question. In the second case, on the other hand, the administrative procedure must commence with the submission of a request, within the meaning of Article 90(1) of the Staff Regulations, for compensation. It is only the express or implied rejection of such a request that constitutes a decision adversely affecting the person concerned and against which he or she may submit a complaint, and it is only after the express or implied rejection of that complaint that an action seeking compensation may be brought before the Court (judgments of 25 September 1991, Marcato v Commission, T‑5/90, EU:T:1991:50, paragraph 50, and of 11 May 2010, Nanopoulos v Commission, F‑30/08, EU:F:2010:43, paragraph 83).
51      In the present case, the applicant claims that it is the contested measure and the decision rejecting the complaint which are the cause of the non-material damage in respect of which he is seeking compensation.
52      In view of the finding set out in paragraph 37 above, the heads of damage relied on derive not from an act adversely affecting the applicant but from conduct on the part of the administration which contains nothing in the nature of a decision.
53      Even if the applicant had submitted, on the basis of Article 90(1) of the Staff Regulations, a claim for compensation on the basis of the heads of damage at issue and a complaint had subsequently been lodged against the refusal of that request, it is not apparent from the documents in the file that a decision rejecting that complaint had been adopted before his action was brought on 16 July 2020 (see paragraphs 13 to 17 above).
54      Since the submission of the claim for compensation was not preceded by a pre-litigation procedure in accordance with the provisions of the Staff Regulations, that claim is manifestly inadmissible.
55      In any event, the applicant’s claim for compensation is manifestly unfounded.
56      In that regard, in accordance with settled case-law, in a claim for damages brought by an official, the European Union’s non-contractual liability arises only where three conditions are satisfied: the unlawfulness of the allegedly wrongful act committed by the institutions, actual harm suffered, and the existence of a causal link between the alleged unlawfulness and the harm invoked (see judgment of 21 February 2008, Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraph 52 and the case-law cited). Those three conditions are cumulative, which means that if one of them is not satisfied, the action for compensation must be dismissed (judgment of 29 November 2018, Di Bernardo v Commission, T‑811/16, not published, EU:T:2018:859, paragraph 60).
57      It is also apparent from case-law that it is for the person claiming damages to adduce evidence of the causal link (judgments of 8 July 2008, Franchet and Byk v Commission, T‑48/05, EU:T:2008:257, paragraph 397, and of 14 December 2018, FV v Council, T‑750/16, EU:T:2018:972, paragraph 179).
58      In the present case, the causal link between, on the one hand, the contested measure, by which the Commission merely refused to provide the applicant with certain ‘clarifications’ and ‘explanations’ and, on the other hand, the damage to the applicant’s health, his professional reputation and his ‘ability [to function] normally in the EU institutional system’ has not been established.
59      The same applies to the causal link between that measure and the infringement of the right to an effective remedy allegedly suffered by the applicant (see paragraphs 39 to 48 above).
60      Consequently, the applicant’s claim for compensation must, in any event, be rejected as being manifestly unfounded.
61      It follows from all the findings above that the present action must be dismissed in its entirety as being manifestly inadmissible and, in the alternative and in part, as being manifestly unfounded.
Costs
62      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. Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1.      The action is dismissed.
2.      ZU shall pay all of the costs.
Luxembourg, 14 April 2021.
E. Coulon
R. da Silva Passos
Registrar
President
*      Language of the case: English.