ORDER OF THE COURT (Sixth Chamber)
3 October 2024 (*)
( Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Civil service – Official – Compliance with the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291) – Decision not to include the name of the appellant on the list of officials promoted as part of the 2021 promotion exercise – Action for annulment and for damages – Appeal in part manifestly inadmissible and in part manifestly unfounded )
In Case C‑256/24 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 11 April 2024,
XH, represented by K. Górny, adwokat,
appellant,
the other party to the proceedings being:
European Commission,
defendant at first instance,
THE COURT (Sixth Chamber),
composed of T. von Danwitz, President of the Chamber, P.G. Xuereb (Rapporteur) and I. Ziemele, Judges,
Advocate General: A.M. Collins,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1        By her appeal, the appellant seeks to have set aside the judgment of the General Court of the European Union of 7 February 2024, XH v Commission (T‑353/22, EU:T:2024:63; ‘the judgment under appeal’), by which the General Court dismissed her action brought on the basis of Article 270 TFEU seeking, first, annulment of the European Commission’s decision published in Administrative Notice
No 31-2021 of 10 November 2021 not to include her name on the list of officials promoted as part of the 2021 promotion exercise (‘the decision not to promote’) and, second, compensation for the damage she allegedly suffered.
The appeal
2        Pursuant to Article 181 of the Rules of Procedure, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court of Justice may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.
3        It is appropriate to apply that provision in the present case.
4        On 16 July 2024, the Advocate General took the following position:
‘1.      For the reasons set out below, I propose that the Court should rule on the appeal in the present case on the basis of Article 181 of the Rules of Procedure of the Court of Justice.
2.      In support of her appeal, the appellant raises seven grounds of appeal, the first alleging distortion of the evidence, the second alleging infringement of the procedural rules inasmuch as the General Court held that the explicit decision of the appointing authority, signed electronically on 31 May 2022, rejecting her complaint (“the explicit decision rejecting the complaint”) lacked any independent content, the third relating to the absence of an oral part of the procedure and alleging a failure properly to consider the measures of organisation of procedure and measures of inquiry requested at first instance, the fourth alleging inadequacy of the statement of reasons for the decision not to promote, the fifth alleging irregularities during the 2017, 2020 and 2021 promotion exercises and a failure to comply with the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), and, in that respect, a continued negative impact of the interim probation report on the 2017, 2020 and 2021 promotion exercises, the sixth alleging a lack of fair comparison of the candidates’ merits due to conflicts of interest, and the seventh alleging a manifest error of assessment by the appointing authority in the 2021 promotion exercise.
Preliminary observations
3.      In accordance with settled case-law, it follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) and Article 169(2) of the Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of that appeal, failing which the appeal or ground of appeal concerned will be inadmissible (judgment of 11 January 2024, Planistat Europe and Charlot v Commission, C‑363/22 P, EU:C:2024:20, paragraph 40 and the case-law cited).
4.      More specifically, a ground of appeal supported by an argument that is not sufficiently clear and precise to enable the Court to exercise its powers of judicial review, in particular because essential elements on which the ground of appeal relies are not indicated sufficiently coherently and intelligibly in the text of the appeal, which is worded in a vague and ambiguous manner in that regard, does not satisfy those requirements and must be declared inadmissible. The Court has also held that an appeal lacking any coherent structure which simply makes general statements and contains no specific indications as to the points of the decision under appeal which may be vitiated by an error of law must be dismissed as being manifestly inadmissible. Those requirements are also not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the decision under appeal, merely reproduces the pleas in law and arguments previously submitted to the General Court. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake (order of 20 May 2022, Germann Avocats v Commission, C‑233/21 P, EU:C:2022:409, paragraph 16 and the case-law cited). A mere abstract statement of the grounds in the application does not alone satisfy the requirements of Article 21 of the Statute of the Court of Justice of the European Union, concerning the subject matter of the application, and of Article 169 of the Rules of Procedure (order of 31 January 2019, Iordăchescu v Parliament and Others, C‑426/18 P, EU:C:2019:89, paragraph 29 and the case-law cited).
5.      Furthermore, it follows from Article 256 TFEU and from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal is to be limited to points of law. The General Court thus has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The assessment of those facts and that evidence does not therefore, save where it distorts those facts and evidence, constitute a point of law which is, as such, subject upon appeal to review by the Court of Justice. Such distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence. The appellant must indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in its view, led to that distortion (order of 20 May 2022, Germann Avocats v Commission, C‑233/21 P, EU:C:2022:409, paragraph 17 and the case-law cited).
6.      Lastly, according to settled case-law, the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the General Court’s thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review (judgment of 27 June 2024, Niche Generics v Commission, C‑164/19 P, EU:C:2024:547, paragraph 133 and the case-law cited).
The first ground of appeal
7.      By the first ground of appeal, the appellant complains that the General Court distorted the content of her application at first instance and the annexes thereto by failing to refer to certain evidence contained therein.
8.      That ground of appeal, the wording of which, moreover, is unclear, consists merely in a list of the evidence allegedly distorted and fails to indicate precisely the contested elements of the judgment under appeal which the appellant seeks to have set aside as well as the arguments specifically advanced in support of the appeal. Since it does not comply with either the provisions or the case-law cited in points 3 to 5 of the present position, that ground of appeal must be rejected as manifestly inadmissible.
The second ground of appeal
9.      By the second ground of appeal, the appellant claims, in essence, that the General Court infringed a series of legal rules by holding that the explicit decision rejecting the complaint lacked any independent content for the purposes of an action for annulment. The appellant alleges, inter alia, infringement of Articles 84 to 86, 94 and 106 of the Rules of Procedure of the General Court, of Article 91 of the Staff Regulations of Officials of the European Union, and of Articles 41 and 47 of the Charter of Fundamental Rights of the European Union.
10.      In the light of the case-law cited in point 4 of the present position, it must be stated that the second ground of appeal is not worded in a sufficiently clear and precise manner to enable the Court of Justice to exercise its power of review in the context of the appeal. Accordingly, the second ground of appeal must be rejected as manifestly inadmissible.
The third ground of appeal
11.      The third ground of appeal consists of two parts. By the first part, the appellant complains that the General Court distorted her request for a hearing and decided to rule on her action without an oral part of the procedure, providing an inadequate and legally incorrect statement of reasons. By the second part, the appellant complains that the General Court failed to examine properly her request for the adoption of measures of organisation of procedure and measures of inquiry.
12.      As regards the first part of that ground of appeal, it is apparent from paragraphs 22 to 24 of the judgment under appeal that, by her letter of 23 March 2023, the appellant requests a hearing for the sole reason that “the parties [can] be granted the opportunity to conduct witness interviews”. According to the General Court, that reason was similar to a request for the summoning of witnesses, within the meaning of Articles 93 and 94 of the Rules of Procedure of the General Court, and did not therefore relate to an element of the case whose content had already been placed in the file and could be developed at a hearing, for the purposes of Article 106 of the Rules of Procedure. Moreover, the General Court considered that it had sufficient information to rule without an oral part of the procedure.
13.      Contrary to what the appellant claims, there is nothing to indicate that the General Court distorted the content of that letter of 23 March 2023, by which the appellant did indeed request the summoning of witnesses. As the General Court correctly observes, the request for a hearing for the purposes of the summoning of witnesses was, in actual fact, aimed at requesting further investigation. Furthermore, the reasoning of the General Court on that point is clear and unequivocal, thus satisfying the requirements relating to the statement of reasons set out in point 6 of the present position. As regards the alleged error of law in the reasoning of the judgment under appeal, that complaint must be rejected as the appellant does not develop sufficiently precise legal arguments to enable the Court of Justice to exercise its power of review in the context of the appeal, as required by the case-law cited in points 3 and 4 of the present position. It follows that the first part of the third ground of appeal is in part manifestly inadmissible and in part manifestly unfounded.
14.      As regards the second part of the third ground of appeal, it must be noted that, in paragraphs 118 to 121 of the judgment under appeal, the General Court examined the measures of organisation of procedure and the measures of inquiry requested by the appellant. After pointing out that it is for the General Court to adopt the measures of organisation of procedure and the measures of inquiry which it considers appropriate, it concluded that the measures sought were irrelevant for the purpose of resolving the dispute, since the dispute could be resolved on the basis of the documents in the file.
15.      As the General Court noted in paragraph 120 of the judgment under appeal, under Article 90(1) of its Rules of Procedure, it is for it to decide on measures of organisation of procedure (judgment of 13 October 2021, IB v EUIPO, T‑22/20, EU:T:2021:689, paragraph 163). Furthermore, according to Article 92(1) of those Rules of Procedure, the General Court has exclusive jurisdiction to assess the usefulness of measures of inquiry for the purpose of resolving the dispute (order of 7 February 2024, Mylan Ireland v Commission, T‑227/23, EU:T:2024:88, paragraph 57 and the case-law cited). It must be stated that the appellant has not developed sufficiently precise legal arguments, within the meaning of the case-law cited in points 3 and 4 of the present position, capable of establishing that that paragraph of the judgment under appeal is vitiated by an error of law. Accordingly, the second part of the third ground of appeal must be rejected as manifestly inadmissible.
The fourth ground of appeal
16.      By the fourth ground of appeal, the appellant criticises the General Court for rejecting her complaints alleging an inadequate statement of reasons for the decision not to promote, as communicated in the explicit decision rejecting the complaint.
17.      It should be noted that, in paragraphs 47 and 48 of the judgment under appeal, the General Court explains in detail that the statement of reasons for the decision not to promote, as set out in the explicit decision rejecting the complaint, is clear and unequivocal. The General Court adds that that statement of reasons enabled the appellant to contest the merits of that decision in her action for annulment and the Courts of the European Union to exercise their power to review the legality of that decision.
18.      In so far as, by her arguments, the appellant is seeking a new assessment of the facts by the Court of Justice, without, however, demonstrating that the General Court distorted the facts, it is appropriate to conclude, in the light of the case-law cited in point 4 of the present position, that that claim falls outside the jurisdiction of the Court of Justice in the context of an appeal.
19.      Consequently, the fourth ground of appeal must be rejected as manifestly inadmissible.
The fifth ground of appeal
20.      By the fifth ground of appeal, the appellant criticises the General Court for rejecting the complaints alleging, first, that irregularities were made during the 2017, 2020 and 2021 promotion exercises, and second, that the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), was not complied with, and, in that respect, that the interim probation report had a continued negative impact on the 2017, 2020 and 2021 promotion exercises.
21.      It is apparent from paragraphs 61 to 70 of the judgment under appeal that the General Court rejected those complaints as being in part inadmissible and in part unfounded. In particular, the General Court stated, in paragraphs 65 and 66 of the judgment under appeal, that the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), had not ordered the withdrawal of the interim probation report from the appellant’s personal file and that, in any event, that report had been removed, in 2018, from the appellant’s personal file in the IT system called Sysper 2. In addition, the General Court pointed out that the decision not to promote was based on the appraisal reports drawn up for the years 2018 to 2020.
22.      In so far as, by the fifth ground of appeal, the appellant is seeking a new assessment of the facts by the Court of Justice, without, however, demonstrating any distortion of the facts by the General Court, that claim falls outside the jurisdiction of the Court of Justice in the context of an appeal, in the light of the case-law cited in point 4 of the present position. Accordingly, the fifth ground of appeal must be rejected as manifestly inadmissible.
The sixth ground of appeal
23.      By the sixth ground of appeal, the appellant criticises the General Court for rejecting her complaints alleging that there was a lack of fair comparison of the candidates’ merits on account of, in particular, infringement of the rules for declaring conflicts of interest by several of her colleagues.
24.      It is apparent from paragraphs 76 to 84 of the judgment under appeal that the General Court rejected those complaints as being in part inadmissible on account of their late submission, in part ineffective in so far as they concerned persons who had not been involved in the 2021 promotion procedure, and in part unfounded in so far as they concerned the appellant’s deputy head of unit.
25.      Although the appellant alleges a distortion of the facts in the context of that ground of appeal, her line of argument is not sufficiently precise in order to enable the Court of Justice to rule on its merits in the context of this appeal, within the meaning of the case-law cited in point 5 of the present position. Consequently, given that, by the sixth ground of appeal, the appellant is seeking primarily a new assessment of the facts by the Court of Justice, without, however, demonstrating that the General Court distorted the facts, it must be stated that that claim falls outside the jurisdiction of the Court of Justice in the context of an appeal, in accordance with the case-law cited in point 4 of the present position.
26.      It follows that the sixth ground of appeal must be rejected as manifestly inadmissible.
The seventh ground of appeal
27.      By the seventh ground of appeal, the appellant criticises the General Court for rejecting the complaint alleging that the appointing authority failed to have due regard to its discretion in the 2021 promotion exercise. In particular, the appellant submits that the General Court distorted the evidence and erred in concluding that the appointing authority had not exceeded the limits of its discretion.
28.      As is apparent from paragraphs 94 to 107 of the judgment under appeal, the General Court held that the decision not to promote was not vitiated by a manifest error of assessment. In particular, the General Court noted that the promoted officials had all obtained a higher general assessment than that of the appellant and that it was therefore without committing a manifest error of assessment that the appointing authority had been able to conclude, after comparing the merits of all the candidates, that the promoted candidates had greater merits than the appellant.
29.      As regards the alleged distortion of the evidence, it must be stated that there is nothing in the appeal to support the conclusion that the General Court manifestly distorted the evidence submitted. In actual fact, the appellant is merely seeking a re-examination of the arguments put forward before the General Court, which the Court of Justice does not have jurisdiction to undertake, as is clear from the case-law cited in point 4 of the present position.
30.      As to the remainder, it should be noted that, contrary to the requirements laid down in the case-law cited in points 3 and 4 of the present position, the appellant does not identify the error of law allegedly committed by the General Court in concluding that the appointing authority had not exceeded the limits of its discretion.
31.      It follows that the seventh ground of appeal must be rejected as manifestly inadmissible.
32.      In the light of the foregoing, the appeal must be dismissed as being in part manifestly inadmissible and in part manifestly unfounded.’
5        For the same reasons as those given by the Advocate General, the appeal must be dismissed in its entirety as being in part manifestly inadmissible and in part manifestly unfounded.
Costs
6        Under Article 137 of the Rules of Procedure of the Court of Justice, applicable to proceedings on appeal pursuant to Article 184(1) of those Rules of Procedure, a decision as to costs is to be given in the order which closes the proceedings. In the present case, since the present order has been adopted before the appeal was served on the Commission and, therefore, before the Commission could have incurred costs, XH must be ordered to bear her own costs.
On those grounds, the Court (Sixth Chamber) hereby orders:
1.      The appeal is dismissed as being in part manifestly inadmissible and in part manifestly unfounded.
2.      XH shall bear her own costs.
Luxembourg, 3 October 2024.
A. Calot Escobar
T. von Danwitz
Registrar
President of the Chamber
*      Language of the case: English.