ORDER OF THE GENERAL COURT (Fourth Chamber)
19 December 2022 (*)
(Staff case – Officials – Promotion – 2020 promotion exercise – Decision refusing to amend the applicant’s Sysper 2 file – Decision not to promote the applicant – Time limits for lodging an appeal – Public policy nature – Starting point – Application for legal aid – Suspension of time limits – Computation of time limits – Lateness – Unforeseeable circumstances or force majeure – Excusable error – Inadmissibility)
In Case T‑522/21,
XH, represented by K. Górny-Salwarowska, lawyer,
applicant,
v
European Commission, represented by M. Brauhoff, L. Hohenecker and L. Vernier, acting as Agents,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos (Rapporteur), President, S. Gervasoni and T. Pynnä, Judges,
Registrar: E. Coulon,
having regard to the written part of the procedure,
makes the following
Order
1        By her action under Article 270 TFEU, the applicant, XH, seeks, first, annulment of the decision of the European Commission of 24 November 2020 refusing to amend her Sysper 2 file, confirmed by decision of 16 June 2021 rejecting her complaint, secondly, annulment of the decision of the Commission of 12 November 2020 not to include her name on the list of officials promoted in 2020, confirmed by decision of 8 June 2021 rejecting her complaint, and, thirdly, compensation for the damage suffered.
Background to the dispute and forms of order sought by the parties
2        The applicant is a [confidential] official.
3        On 12 November 2020, the Commission published a Communication to the Administrative Notices
No 32-2020. That communication contained the list of officials promoted under the 2020 promotion exercise. The applicant’s name did not appear on that list (‘the decision of non-promotion’).
4        On 24 November 2020, a head of unit in the Commission Directorate-General (DG) for Human Resources adopted Decision D/386/20 by which he refused to amend the applicant’s Sysper 2 file (‘the decision refusing to amend her Sysper 2 file’).
5        On 5 February 2021, the applicant lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the decision of non-promotion.
6        On 22 February 2021, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the decision refusing to amend her Sysper 2 file.
7        By Decision R/80/21 of 8 June 2021, the competent appointing authority (‘the AA’) rejected the complaint lodged by the applicant against the decision of non-promotion.
8        By Decision R/125/21 of 16 June 2021, the AA rejected the complaint lodged by the applicant against the decision refusing to amend her Sysper 2 file.
9        On 26 August 2021, the applicant lodged an application for legal aid at the Court Registry under Article 147 of the Rules of Procedure of the General Court. That application was registered under case number T‑522/21 AJ.
10      By order of 19 November 2021, the President of the General Court rejected the application for legal aid.
11      By application lodged at the Court Registry on 18 January 2022, the applicant brought the present action.
12      The applicant claims that the Court should:
–        annul the decision refusing to amend her Sysper 2 file, confirmed by the decision rejecting her complaint;
–        annul the decision of non-promotion, confirmed by the decision rejecting her complaint;
–        compensate for the damage suffered;
–        order the Commission to pay the costs.
13      The Commission contends that the Court should:
–        dismiss the action as inadmissible;
–        order the applicant to pay the costs.
Law
14      Under Article 130(1) and (7) of the Rules of Procedure, if the defendant so requests, the Court may rule on inadmissibility without going to the substance of the case. Furthermore, under Article 126 of those rules, where the action is manifestly inadmissible, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give judgment by reasoned order without taking further steps in the proceedings.
15      In the present case, the Commission requested, by separate document lodged on 17 June
2022, that the action be declared inadmissible. Furthermore, the Court considers that it has been sufficiently informed by the documents in the file and decides, pursuant to those provisions, to give judgment by way of a reasoned order, without taking further steps in the proceedings.
16      The Commission claims, in essence, that the applications for annulment made by the applicant are inadmissible because they are out of time. Furthermore, it submits that the applicant’s claim for damages must be rejected because of its close link with those applications for annulment.
17      In her observations on the plea of inadmissibility, the applicant asks the Court to reject the plea of inadmissibility raised by the Commission.
The applications for annulment
18      Under Article 91(3) of the Staff Regulations, an action before the Court must be brought within three months of the date of notification of the decision taken in response to the complaint submitted pursuant to Article 90(2) of the Staff Regulations. In addition, according to Article 60 of the Rules of Procedure, the procedural time limits are extended on account of distance by a single period of 10 days.
19      Furthermore, under Article 147(7) of the Rules of Procedure, the lodging of an application for legal aid suspends, for the applicant, the time limit for lodging an appeal until the date of service of the order determining the application or, in the cases referred to in Article 148(6) of those rules, of the order designating the lawyer to represent the applicant.
20      The time limits for lodging complaints and appeals laid down in Articles 90 and 91 of the Staff Regulations are a matter of public policy and cannot be left to the parties and to the Court, which must check, even of its own motion, whether they have been observed. Those time limits meet the requirement of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (judgment of 29 June 2000, Politi v ETF, C‑154/99 P, EU:C:2000:354, paragraph 15; see also, to that effect, judgment of 3 March 2022, WV v EEAS, C‑172/20 P, not published, EU:C:2022:155, paragraphs 43 and 45 and the case-law cited).
21      It is for the party claiming that an application is out of time to show from what day the time limit for making that application began to run (judgment of 21 February 2018, LL v Parliament, C‑326/16 P, EU:C:2018:83, paragraph 49, and order of 31 July 2020, TO v EEAS, T‑272/19, EU:T:2020:361, paragraph 31).
22      In the present case, it is necessary, first, to determine the starting point of the time limits for appealing against the decision of non-promotion and the decision refusing to amend the applicant’s Sysper 2 file, secondly, to determine the date on which the suspension of those time limits, linked to the lodging of the application for legal aid, came to an end, thirdly, to determine the date on which the time limits for lodging appeals expired, and, fourthly, to examine the arguments put forward by the applicant in order to justify the date of the lodging of the application.
The starting point of the time limits for lodging appeals
23      The applicant claims that she was not in a position to become aware of the content of the decisions rejecting her complaints before 2 August 2021, the date on which she had access to those decisions. She concludes that it was on that date that the time limits for appealing against the decision of non-promotion and the decision refusing to amend her Sysper 2 file began to run.
24      It should be pointed out that, in order for a decision to be validly notified within the meaning of the Staff Regulations, it is necessary not for the addressee to have actually taken cognisance of its content, but for the addressee to have been put in a position to have effective knowledge of it (order of 31 July 2020, TO v EEAS, T‑272/19, EU:T:2020:361, paragraph 42; see also, to that effect, judgment of 3 March 2021, Barata v Parliament, T‑723/18, EU:T:2021:113, paragraphs 31 and 32).
25      In order to establish that a decision notified by email was duly notified to its addressee on a specific date for the purposes of Article 91(3) of the Staff Regulations and that, consequently, the time limit for lodging an appeal began to run from that date, the interested party must show, by providing the necessary evidence in that regard, not only that that decision was communicated to its addressee, in the sense that it was transmitted to the email address of that addressee and that the addressee received it at that address, but also that the addressee was in a position to take cognisance of the content of that decision on that date, that is to say, that he or she was able to open the email containing the decision in question and thus to take cognisance of it on that date (judgment of 1 August 2022, Kerstens v Commission, C‑447/21 P, not published, EU:C:2022:612, paragraph 22).
26      Neither a presumption that the addressee of a decision notified by email can, in any event, only have been able to become acquainted with its content on the date on which he or she consulted his or her email, nor a presumption that the addressee of such a decision is in any event able to become acquainted with its contents as soon as it is received in his or her email account, can be in conformity with Article 91(3) of the Staff Regulations (see, to that effect, judgment of 1 August 2022, Kerstens v Commission, C‑447/21 P, not published, EU:C:2022:612, paragraph 25).
27      In the present case, in the first place, it should be noted that the decisions rejecting the applicant’s complaints were adopted on 8 and 16 June 2021 respectively.
28      In the second place, it is apparent from the documents produced by the Commission in the annex to its reply to the measure of organisation of procedure adopted by the Court on 7 April 2022 and in the annex to its plea of inadmissibility that the Commission sent the decisions rejecting the complaints to the applicant on the same day as they were adopted, that is to say, on 8 and 16 June 2021, by means of the document system known as the ‘Advanced Records System’ (‘ARES system’). On the same dates, the Commission sent an email to the applicant’s professional email address. Each of those emails mentioned the decision rejecting the complaint in question in its subject line. In addition, each of those emails contained a hyperlink to the relevant decision in that system and a request for confirmation that the decisions in question had been received. There was no response to those requests for confirmation.
29      In the third place, in her reply to the request for regularisation of the application under Article 78(2) of the Rules of Procedure, the applicant explains, first, that between 21 May and 18 June 2021 she was on sick leave. She also states that she was then abroad until the end of her annual leave, namely on 11 July 2021. Furthermore, she states that she subsequently teleworked, under ‘COVID 19 conditions’, with a limited possibility to solve all technical problems. Finally, she claims that shortly after her return to the office, on 2 August 2021, she accessed
the decisions rejecting her complaints. In her reply to the measure of organisation of procedure adopted by the Court on 7 April 2022, she states that, ‘between 21 May and 18 June 2021 [she] was on sickness leave, until 11 of July 2021, she was therefore abroad for reasons of medical treatment with no access to her professional tools, neither email, nor [ARES]’. She added that, ‘subsequently, until 11 July 2021, with the consent of the [AA], she was abroad, firstly teleworking out of office under COVID 19 conditions between [21 June
and 3 July 2021] and secondly she was on 100% annual leave until 11 July 2021’.
According to her, at that time she had little opportunity to resolve technical problems or to access all the Commission’s computer systems, in particular that system. In her observations of 14 July 2022, on the Commission’s plea of inadmissibility, she stressed that she was unable to consult her email and access the decisions rejecting her complaints because of her 100% sick leave, her stay abroad and mobility constraints.
30      In that regard, first, it must be pointed out that, in certain respects, the explanations given by the applicant and referred to in paragraph 29 above are not borne out by the calendar of absences and attendances produced by the applicant in response to the measure of organisation of procedure adopted by the Court. It is true that that calendar shows that the applicant was on sick leave from 21 May 2021 to 18 June 2021. However, it is also apparent from that timetable that the applicant was at her place of work during the period from 21 June to 2 July 2021.
31      Secondly, the Commission produced documents before the Court which show that the applicant sent several emails to the administration from her professional email address on 9, 10, 13 and 21 June 2021. In those emails, the applicant, inter alia, contested the administration’s calculation of her sick leave days for the period 2017-2018, referred to a claim she had lodged in that regard and addressed the [confidential] judgment.
32      Thus, the documents produced by the Commission show that the applicant had access to her professional email on at least 9 and 21 June 2021 and that she exchanged emails with the administration concerning disputes with it. On 9 June 2021, the decision rejecting the applicant’s complaint against the decision of non-promotion had already been communicated to her by means of the ARES system and the Commission had already sent an email containing a link to that decision to her professional email address. Furthermore, on 21 June 2021, the decision rejecting the applicant’s complaint against the decision refusing to amend her Sysper 2 file had already been communicated to the applicant in the same way (see paragraph 28 above).
33      In the fourth place, the applicant contests the regularity of the electronic notification of the decisions rejecting her complaints. She claims that the Commission should have sent her those decisions by registered letter with acknowledgement of receipt.
34      However, it should be noted that the second paragraph of Article 25 of the Staff Regulations provides that ‘any decision relating to a specific individual which is taken under [the] Staff Regulations shall at once be communicated in writing to the official concerned’. In the absence of a prescription as to the method or methods by which an individual decision may be communicated ‘in writing’, that provision must be interpreted as meaning that the administration has several possibilities in that regard, including electronic means (see judgment of 3 March 2021, Barata v Parliament, T‑723/18, EU:T:2021:113, paragraph 25 and the case-law cited).
35      Thus, the administration is in principle free to choose the method which it considers most appropriate in the light of the circumstances of the case in order to notify a decision rejecting a complaint, since the Staff Regulations do not impose any order of priority between the various possible methods, such as electronic means or registered letter with acknowledgement of receipt (see judgment of 3 March 2021, Barata v Parliament, T‑723/18, EU:T:2021:113, paragraph 27 and the case-law cited).
36      In the fifth place, the applicant does not produce any evidence to demonstrate the technical problems which she alleges. Moreover, the evidence referred to in paragraph 31 above shows that no technical problem prevented the applicant from accessing her professional email on 9, 10, 13 and 21 June 2021. That finding is corroborated by certain documents produced by the applicant on 14 July 2022, from which it emerges that, on 19 June 2021, the applicant, first, lodged a complaint against the decision not to include her name on the list of officials promoted in 2021 and, secondly, consulted her 2017 electronic promotion file.
37      It must therefore be held that the Commission has adduced evidence that the applicant was in a position to become acquainted, first, with the decision rejecting her complaint against the decision of non-promotion by 9 June
2021 at the latest and, secondly, of the decision rejecting her complaint against the decision refusing to amend her Sysper 2 file by 21 June
2021 at the latest.
38      Consequently, the time limit for lodging an appeal against the decision of non-promotion began to run on 9 June 2021 at the latest and the time limit for lodging an appeal against the decision refusing to amend the applicant’s Sysper 2 file began to run on 21 June 2021 at the latest.
The date on which the suspension of the time limits for lodging an appeal came to an end
39      As a preliminary point, it should be noted that, in her various observations submitted to the Court, the applicant does not dispute that the order of the President of the Court of 19 November 2021, rejecting her application for legal aid, was sent by registered letter with acknowledgement of receipt to a postal address in [confidential: country A]. Furthermore, the applicant does not dispute that the acknowledgement of receipt of that order was signed on 26 November 2021.
40      However, the applicant claims, in essence, that the suspension of the time limits for bringing an action, linked to the submission of an application for legal aid, did not end on 26 November 2021. First, she explains that the order of the President of the Court of 19 November 2021 was not sent to the address of her lawyers. Secondly, she claims that that order should have been sent to her in [confidential: Country B]. Thirdly, in her observations filed on 6 May 2022 following the inspection of the file in Case T‑522/21 AJ, she submits that the acknowledgement of receipt of that order was not signed by her. In her observations on the plea of inadmissibility, she adds that she had not authorised a third party to receive that order.
41      In that regard, first, it should be noted that, when she submitted her application for legal aid, the applicant was not represented by a lawyer. Thus, in accordance with Article 147(6) of the Rules of Procedure, she completed the application for legal aid herself and sent or lodged the original of that application at the Court Registry in paper form.
42      Moreover, Article 148(9) of the Rules of Procedure provides that, where the applicant for legal aid is not represented by a lawyer, service is to be effected on him or her by registered post, with acknowledgement of receipt, of a copy of the document to be served, or by delivery of that copy against receipt. The applicant’s lawyers did not appear in the application for legal aid filed by the applicant. Furthermore, the applicant did not provide the names of her lawyers before the order of the President of the Court of 19 November 2021 was made. That order could therefore not be sent to the address of the applicant’s lawyers.
43      Secondly, the applicant does not dispute that she gave an address in [confidential: Country A] in the application for legal aid and that the order of the President of the Court of 19 November 2021 was sent to her by registered letter with acknowledgement of receipt to that address, in accordance with Article 148(9) of the Rules of Procedure.
44      Thirdly, in its response to the measure of organisation of procedure adopted by the Court on 7 April 2022, the applicant explains that she had concluded a contract with a service provider located in [confidential: country A] whose role was precisely to receive correspondence sent to her at the address mentioned in her application for legal aid. It follows that that service provider was duly mandated to receive correspondence addressed to the applicant.
45      Furthermore, in her response to the measure of organisation of procedure adopted by the Court on 7 April 2022, the applicant also acknowledges that it was that service provider who signed, on 26 November 2021, the acknowledgement of receipt of the order of the President of the Court of 19 November 2021. She even adds that the service provider was obliged to forward that order to her by means of an email.
46      It must therefore be concluded that the order of the President of the Court of 19 November 2021 was duly and regularly served on the applicant on 26 November 2021.
47      Consequently, the suspension of the time limits for lodging an appeal against the decision of non-promotion and against the decision refusing to amend the applicant’s Sysper 2 file ended on 26 November 2021.
The date of expiry of the time limit for lodging an appeal
48      In the first place, the time limit for lodging an appeal against the decision of non-promotion began to run on 9 June 2021 at the latest, as is apparent from paragraph 38 above. Since 19 September 2021 was a Sunday, the three-month period provided for in Article 91(3) of the Staff Regulations, plus the 10-day extension period on account of distance provided for in Article 60 of the Rules of Procedure, originally expired on 20 September
2021 pursuant to Article 58(2) of those rules.
49      Next, in accordance with Article 147(7) of the Rules of Procedure, the time limit for lodging an appeal was suspended on 26 August 2021 by the submission of the application for legal aid. Since that time limit originally expired on 20 September 2021, the applicant still had 25 days in which to lodge her appeal at the time of its suspension.
50      Finally, the suspension of the time limit for lodging an appeal ended on 26 November 2021, as can be seen from paragraph 47 above.
51      As a result, the time limit for lodging an appeal against the decision of non-promotion expired 25 days later, namely, on 21 December 2021.
52      Since the applicant filed the application with the Court Registry on 18 January 2022, the time limit for lodging an appeal against the decision of non-promotion was exceeded.
53      In the second place, the period for bringing an appeal against the decision refusing to amend the applicant’s Sysper 2 file began to run at the latest on 21 June 2021, as is apparent from paragraph 38 above. The three-month period laid down in Article 91(3) of the Staff Regulations, plus the 10-day period for distance provided for in Article 60 of the Rules of Procedure, therefore originally expired on 1 October 2021.
54      Next, in accordance with Article 147(7) of the Rules of Procedure, the time limit for lodging an appeal was suspended on 26 August 2021 by the submission of the application for legal aid. Since that period originally expired on 1 October 2021, the applicant still had a period of one month and five days to lodge her appeal at the time of its suspension.
55      Finally, the suspension of the time limit for lodging an appeal ended on 26 November 2021, as can be seen from paragraph 47 above.
56      Consequently, the time limit for lodging an appeal against the decision refusing to amend the applicant’s Sysper 2 file expired one month and five days later, that is, on 31 December 2021.
57      In so far as the applicant filed the application at the Court Registry on 18 January 2022, the time limit for lodging an appeal against the decision refusing to amend her Sysper 2 file was exceeded.
58      It should be added that, as is apparent from paragraphs 53 to 57 above, the time limit for lodging an appeal against the decision of non-promotion would still be exceeded if it were to be considered that the applicant was in a position to become acquainted with the decision rejecting the complaint lodged by the applicant against the decision of non-promotion not on 9 June 2021 at the latest but on 21 June 2021 at the latest, that is to say, a date on which, according to the file, she was at her place of work and sent an email to the administration (see paragraphs 30 and 31 above).
59      In the light of the foregoing, it must be concluded that the time limits for bringing an appeal against the decision of non-promotion and against the decision refusing to amend the applicant’s Sysper 2 file were exceeded without there being any need to rule on the admissibility and evidential value of the note to the file signed by a head of unit in the Commission Directorate-General for Informatics, which was produced by that institution in order to demonstrate that the applicant consulted the decisions rejecting her complaints on the date of their adoption.
The arguments put forward by the applicant to justify the date of filing of the application
60      The arguments put forward by the applicant to justify the date on which the application was lodged must be interpreted as aiming, in part, to demonstrate that there were unforeseeable circumstances or force majeure and, in part, to demonstrate the existence of an excusable error.
–       The existence of unforeseeable circumstances or force majeure
61      The applicant claims that, owing to a technical error beyond her control, she was unable to access the email by which her service provider forwarded to her, on 26 November 2021, the order of the President of the Court of 19 November 2021.
62      It must be held that, by its argument, the applicant relies on the existence of unforeseeable circumstances or force majeure preventing any loss of rights resulting from the expiry of the time limit for bringing proceedings, pursuant to the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, which is applicable to the proceedings before the General Court by virtue of Article 53 of that statute.
63      It should be noted that the concepts of ‘unforeseeable circumstances’ and ‘force majeure’ comprise the same elements and have the same legal consequences. Those concepts include an objective element, relating to abnormal circumstances which are alien to the applicant, and a subjective element relating to the applicant’s obligation to guard against the consequences of the abnormal event by taking appropriate measures without making excessive sacrifices (see, to that effect, judgment of 19 June 2019, RF v Commission, C‑660/17 P, EU:C:2019:509, paragraph 37 and the case-law cited).
64      The applicant must carefully monitor the progress of the proceedings and, in particular, exercise diligence in order to meet the time limits. The concepts of ‘unforeseeable circumstances’ and ‘force majeure’ do not apply to a situation in which a diligent and informed person would objectively have been able to avoid the expiry of a time limit for bringing proceedings (see, to that effect, judgment of 19 June 2019, RF v Commission, C‑660/17 P, EU:C:2019:509, paragraph 38 and the case-law cited).
65      In the present case, it is apparent from the documents produced by the applicant in response to the measure of organisation of procedure adopted by the Court on 7 April 2022 that, on 26 November 2021, the applicant’s service provider sent her the order of the President of the Court of 19 November 2021 by means of an email. Furthermore, the applicant produced a document before the Court which shows that on the same day that that order was sent by email, she received another email. That further email indicated that her personal mailbox was full and that, as a result, she could not send or receive messages without taking the steps indicated, namely, increasing the storage or managing the storage so as to free up space for new emails.
66      In that regard, first, the lack of storage space in a mailbox does not constitute an abnormal circumstance which is external to the applicant. The storage space of a mailbox is an element which is managed by the applicant and which she can influence at any time. Thus, the applicant was in a position to ensure that her personal mailbox had sufficient storage space to receive the emails addressed to her.
67      Next, the saturation of a mailbox is a foreseeable event against which the person concerned can take precautions before the event occurs. In the present case, a diligent and informed person would have taken the necessary steps to ensure that the storage space in his or her mailbox, which was intended in particular to receive copies of official correspondence, remained sufficient to receive them. That is all the more so because an email, such as the one received by the applicant on 26 November 2021 concerning the saturation of her personal mailbox, is generally preceded by an alert message informing the person concerned of the forthcoming saturation of that mailbox and enabling him or her to take the appropriate steps.
68      Finally, a diligent and informed person who received an email informing him or her that his or her mailbox was full would have taken the necessary steps, with the requisite speed, to ensure that the persons likely to forward official correspondence to him or her, such as the applicant’s service provider, resent the messages which they had sent to him or her while that mailbox was full. The documents produced by the applicant show that it was only on 11 December 2021 that the applicant asked her service provider to send her ‘future’ correspondence to a new personal email address. Furthermore, those documents show that it was not until 21 February 2022 that the applicant asked her service provider to resend the documents which the latter had sent to her while her personal mailbox was full and, in particular, the order of the President of the Court of 19 November 2021.
69      Thus, the circumstances invoked by the applicant and the documents produced by the latter do not demonstrate the existence, in the present case, of unforeseeable circumstances or force majeure within the meaning of the case-law cited in paragraphs 63 and 64 above.
–       The existence of an excusable error
70      In the first place, the applicant claims that she believed that the order of the President of the Court of 19 November 2021 had not been transmitted and that the time limit for lodging an appeal was suspended on the ground that, on the website www.curia.europa.eu (‘the Curia website’), the legal aid proceedings were displayed as ‘open and ongoing’ until February 2022.
71      In the second place, first, the applicant considers that the order of the President of the Court of 19 November 2021 should also have been served on her habitual place of residence, namely in [confidential: country B], on the ground that the acknowledgement of receipt of her application for legal aid was sent to her in that country.
72      Secondly, the applicant claims that she enquired about the correspondence addressed to her in Case T‑522/21 AJ. In her observations filed on 6 May 2022, following her consultation of the file in Case T‑522/21 AJ, she claims that, by registered letter addressed to the Court Registry on 27 December 2021, she requested information concerning the service of the order of the President of the Court of 19 November 2021. Furthermore, in her observations on the plea of inadmissibility, she explains that, at the beginning of November 2021, she indicated to the Court her address in [confidential: country B] for the receipt of correspondence relating to her application for legal aid. She points out that her enquiries were not answered in 2021 and 2022 and that her letters were not included in the file in Case T‑522/21 AJ. The fact that those letters were not placed in the file in Case T‑522/21 AJ led to confusion as to the address to which the correspondence should have been sent.
73      By her arguments, the applicant therefore relies on the existence of an excusable error.
74      The concept of excusable error must be interpreted strictly and refers only to exceptional circumstances in which, in particular, the institution concerned has engaged in conduct which is, either alone or to a decisive extent, such as to give rise to pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally well-informed person (see, to that effect, order of 14 January 2010, SGAE v Commission, C‑112/09 P, EU:C:2010:16, paragraph 20, and judgment of 3 March 2022, WV v EEAS, C‑172/20 P, not published, EU:C:2022:155, paragraph 65).
75      In that regard, it is apparent from paragraphs 66 to 68 above that the lack of storage space in the applicant’s personal mailbox did not constitute an abnormal circumstance external to the applicant and that she was able to take appropriate measures to avoid the consequences of the occurrence of such an event.
76      If the applicant had taken appropriate measures to avoid the consequences of the saturation of her personal mailbox, the status of the legal aid procedure posted on the Curia website and the facts referred to in paragraphs 71 and 72 above, invoked by the applicant, would not have prevented her from complying with the time limits for bringing an action for annulment of the decision of non-promotion and the decision refusing to amend her Sysper 2 file.
77      In any event, in the first place, it is clear from the ‘Disclaimer and warning’ section of the Curia website that ‘only the versions of the documents published in the “Reports of Cases” or the “Official Journal of the European Union” are authentic’. It is also stated that ‘the other documents available on the Institution’s website are given for the purposes of public information and are subject to amendment’. Furthermore, the information published on the Curia website is intended for the general information of the public and is not a substitute for the information which the Registries of the Courts that constitute the Court of Justice of the European Union provide to the parties to proceedings before them.
78      Thus, it is clear from the Curia website that, for a person exercising due diligence, it cannot be considered an appropriate tool for monitoring legal aid applications. That is particularly true when an order is made on an application for legal aid by a person who is not represented by a lawyer. In the present case, the order in question is served by post by means of a registered letter accompanied by a request for an acknowledgement of receipt which must be returned to the sender by the same postal channel. A certain period of time may therefore elapse between, first, the date of service of an order adopted following the filing of an application for legal aid, which marks the end of the legal aid procedure, and, secondly, the date on which the Court is actually informed of that service.
79      The applicant’s argument, based on the status of the legal aid procedure posted on the Curia website, is therefore rejected.
80      Consequently, the request made by the applicant on 12 August 2022 that the Court adopt a measure of inquiry to confirm the status of Case T‑522/21 AJ on the Curia site at the date on which the application was lodged in the present case must be rejected. The facts which that measure of inquiry seeks to establish are irrelevant since they cannot call into question the considerations set out in paragraphs 75 to 78 above.
81      In the second place, it should be noted that, admittedly, the Court Registry erroneously sent the acknowledgement of receipt of the application for legal aid in Case T‑522/21 AJ to the applicant’s address in [confidential: country B] and not to the address which appeared on the legal aid application form.
82      However, in the light of paragraphs 75
and 76 above, that error cannot be regarded as having been of such a nature as to cause pardonable confusion in the mind of the applicant.
83      Furthermore, in the application for legal aid, the applicant had mentioned exclusively an address in [confidential: country A]. Thus, she had consented to the order of the President of the Court of 19 November 2021 being sent to her at that address and she had no assurance that the order would be sent to her in [confidential: country B].
84      As regards the facts referred to in paragraph 72 above, relied on by the applicant, it should be noted that, in an annex to her observations on the plea of inadmissibility, the latter produced postal documents which show that two registered letters were sent to the Court Registry. The first postal document comes from the post office [confidential: post office of country B] and mentions a dispatch made on 4 November 2021. The second postal document is from the post office [confidentialL: post office of country A] and mentions a dispatch made on 27 December 2021. In that second document, the applicant gave the same address in [confidential: country A] as that which appeared on the legal aid application form.
85      In the annexes to her observations on the plea of inadmissibility, the applicant also produced two handwritten letters addressed to the Court Registry.
86      On 12 August 2022, the applicant produced before the Court postal documents relating to the tracking of the documents referred to in paragraph 84 above. According to those tracking documents, the item sent from [confidentialL: country B] on 4 November 2021 was delivered on 8 November 2021 and the item sent from [confidentialL: country A] on 27 December 2021 was delivered on 7 January 2022.
87      At the outset, it should be pointed out that it is not apparent from the material in the file that the applicant made any written or telephone enquiries about the status of the proceedings in Case T‑522/21 AJ. In the first handwritten letter produced by the applicant, the latter explains that she is providing additional supporting documents and requests an update of her file and address, which she locates in [confidential: country B]. In the second handwritten letter produced by the applicant, the latter requests the Court Registry to send her correspondence to the address available to her.
88      With regard to the documents referred to in paragraphs 84 to 86 above, first, it should be noted that the handwritten letters produced by the applicant are not dated or marked with a registered letter number. It is therefore not possible to assess which letter was received by the Court Registry on 8 November 2021 and which letter was received on 7 January 2022.
89      Next, it must be noted that, on 7 January 2022, that is to say, the date on which the Court Registry received the second handwritten letter produced by the applicant, the order of the President of the Court of 19 November 2021 had already been served in [confidential: country A] and the legal aid procedure had therefore been closed. The letter received on that date could not therefore be included in the file in Case T‑522/21 AJ. It should be added that, on the same day, the time limits for lodging an appeal against the decision of non-promotion and against the decision refusing to amend the applicant’s Sysper 2 file had already expired (see paragraphs 51 and 56 above).
90      Last but not least, it is important to underline that point 205 of the Practice Rules for the Implementation of the Rules of Procedure provides:
‘Without prejudice to the Court’s power to request information or the production of further documents under Articles 89 and 90 of the Rules of Procedure, the application for legal aid may not be supplemented by the subsequent filing of additional material. Such material shall be rejected, unless it has been lodged at the request of the Court. In exceptional cases, supporting documents intended to establish the applicant’s lack of means may nevertheless be accepted subsequently, subject to the delay in their production being adequately explained.’
91      The handwritten letters produced by the applicant and referred to in paragraph 85 above do not contain any supporting documents intended to prove the applicant’s lack of means. Admittedly, in one of those letters, the applicant explains that she is providing additional justification for her application for legal aid. However, the explanations contained in that letter do not constitute supporting documents. Furthermore, the document in [confidential] annexed to that letter does not contain any information relating to the applicant’s financial situation. That document is dated 21 June 2021 and the applicant’s letter contains no appropriate explanation as to why it was not produced when the application for legal aid was submitted on 26 August 2021.
92      Thus, the applicant had no right to have the documents referred to in paragraphs 84 to 86 above included in the file in Case T‑522/21 AJ and taken into account in that case.
93      The applicant’s arguments, based on the facts set out in paragraphs 71 and 72 above, are therefore rejected, without there being any need to rule on the objection to the elements referred to in paragraph 86 above, raised by the Commission in its observations of 3 October 2022 on the arguments and documents submitted by the applicant on 12 August 2022.
94      It follows that the status of the legal aid procedure posted on the Curia website and the facts referred to in paragraphs 71 and 72 above, relied on by the applicant, were not of such a nature, to a decisive extent, as to cause confusion in the latter’s mind as to the date of expiry of the time limits for lodging an appeal in the present case.
95      The applicant has therefore not demonstrated the existence of an excusable error in the present case.
96      It follows from the foregoing that the applications for annulment made by the applicant are late and that the lateness of those applications is not the result of unforeseeable circumstances or force majeure or of an excusable error.
97      The applications for annulment brought by the applicant must therefore be dismissed as inadmissible on the basis of Article 130 of the Rules of Procedure.
The claim for compensation
98      It should be noted that, under the system of remedies established by Articles 90 and 91 of the Staff Regulations, an action for damages is admissible only if it has been preceded by a pre-litigation procedure in accordance with the provisions of the Staff Regulations. The pre-litigation procedure for an action for damages differs according to whether the damage for which compensation is sought results from an act adversely affecting an official within the meaning of Article 90(2) of the Staff Regulations or from conduct on the part of the administration which is not of a decision-making nature. In the first case, it is for the person concerned to submit to the AA, within the time limit laid down, a complaint against the act in question. In the second case, by contrast, the administrative procedure must begin with the lodging of an application within the meaning of Article 90(1) of the Staff Regulations seeking compensation and continue, where appropriate, with a complaint against the decision rejecting the application (see judgment of 18 September 2018, Barroso Truta and Others v Court of Justice of the European Union, T‑702/16 P, EU:T:2018:557, paragraphs 64 and 65 and the case-law cited).
99      Furthermore, the action for annulment and the action for damages are independent remedies. However, an exception to that principle has been accepted in civil service law when the claim for compensation is closely linked to the claim for annulment, which has otherwise been declared inadmissible. Thus, the claim for damages is inadmissible where it seeks exclusively to make good the consequences of the act which was the subject of the application for annulment, which was itself declared inadmissible, in particular where the sole purpose of the claim for damages is to compensate for loss of pay which would not have occurred if the action for annulment had otherwise succeeded (see, to that effect, judgments of 24 January 1991, Latham v Commission, T‑27/90, EU:T:1991:5, paragraph 38 and the case-law cited, and of 14 September 2006, Commission v Fernández Gómez, C‑417/05 P, EU:C:2006:582, paragraph 51).
100    It has also been held that claims for compensation for material or non-material damage must be rejected to the extent that they are closely related to the claims for annulment which were themselves dismissed as inadmissible or unfounded (judgments of 5 February 1997, Ibarra Gil v Commission, T‑207/95, EU:T:1997:12, paragraph 88, and of 22 March 2018, Popotas v Ombudsman, T‑581/16, EU:T:2018:169, paragraph 171).
101    Finally, it should be noted that, according to settled case-law, in order to satisfy the requirements of Article 76(d) of the Rules of Procedure, an application seeking compensation for damage allegedly caused by an institution of the Union must contain the elements which make it possible to identify the conduct of which the applicant complains against the institution, the reasons why it considers that there is a causal link between the conduct and the damage it claims to have suffered, and the nature and extent of that damage (see, to that effect, judgments of 7 October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph 53 and the case-law cited, and of 22 November 2018, Brahma v Court of Justice of the European Union, T‑603/16, EU:T:2018:820, paragraph 219 (not published) and the case-law cited).
102    First, the applicant claims, in essence, that, in so far as the Commission and the Director-General [confidential] did not remove the elements mentioned in the judgment [confidential] from her file and did not rectify her end-of-probation report, those elements led to her being stigmatised in her professional environment, harmed her reputation and caused a false perception of her own condition as well as certain suffering and distress. As a result, she is seeking compensation for non-material damage, which she estimates at EUR 25 000, provisionally and subject to increase.
103    In that regard, it should be noted that the claim for damages is closely linked to the application for annulment of the decision refusing to amend the Sysper 2 file. The latter decision refuses to remove material from that file which, in the applicant’s view, should not be included in it in compliance with the [confidential] judgment. The first head of claim formulated by the applicant, seeking the annulment of such a decision, was rejected as inadmissible.
104    Furthermore, in so far as the applicant seeks compensation for damage resulting from conduct of the administration which is not of a decision-making nature and which is separable from the decision refusing to amend her Sysper 2 file, that claim for compensation should be rejected as manifestly inadmissible on the ground that it is not apparent from the file that that claim was preceded by the lodging of an application within the meaning of Article 90(1) of the Staff Regulations, followed by a complaint against the decision rejecting the application.
105    Secondly, the applicant points out that she incurred costs for her defence in the pre-litigation applications and the complaint procedures of 2015 and 2016 which were not covered by the costs. She adds that it is clear that the material damage does not consist solely of the reimbursement of lawyers’ fees and costs. She explains that she is prepared to set out the elements constituting her material damage, excluding the costs of the present proceedings.
106    However, it should be noted that the content of the application does not make it possible to identify the pre-litigation applications and the complaint procedures of 2015 and 2016 referred to by the applicant. Furthermore, the applicant adds, without further clarification and in a confused manner, that her material damage ‘does not consist solely in the reimbursement of lawyers’ fees and costs by way of expenditure’. Above all, she does not identify precisely the extent of the material damage for which she is seeking compensation and merely states that she is ‘prepared to provide details’.
107    The claim for compensation for the damage referred to in paragraph 105 above is therefore manifestly inadmissible on the ground that it infringes Article 76(d) of the Rules of Procedure.
108    In so far as the applicant seeks compensation for damage resulting from conduct of the administration which is not of a decision-making nature and which is separable from the decision refusing to amend her Sysper 2 file and the decision of non-promotion, that claim is manifestly inadmissible for the same reasons as those set out in paragraph 104 above.
109    Thirdly, the applicant seeks compensation for alleged material damage corresponding to the approximate amount of the increase in remuneration, taking into account the average career development in the Commission, in relation to her career delayed by one year because of the result of the 2017 promotion exercise and the late rectification of her personal file. According to the applicant, that loss could be reduced if the Court were to decide to annul the decision concerning the non-inclusion of the applicant’s name on the list of officials promoted in 2017, the decision of non-promotion referred to in paragraph 3 above and the decision of the AA in response to the complaints made by the applicant. She estimates her loss at EUR 50 000.
110    In that regard, first, it is apparent from the applicant’s argument referred to in paragraph 109 above that the application concerned by that argument is closely linked to the applications for annulment of the decision of non-promotion and the decision refusing to amend her Sysper 2 file. Those applications for annulment were rejected as inadmissible.
111    Secondly, it should be noted that, in the present action, the applicant is not making any application for annulment of a decision not to include her name on the list of officials promoted in 2017. Furthermore, the applicant does not identify the decision not to include her name on the list of officials promoted in 2017 to which she refers. In that regard, it should be pointed out that, by judgment [confidential], the Court [confidential].
112    In so far as the applicant seeks compensation for damage resulting from the failure to adopt a new decision in respect of the 2017 promotion exercise, that claim is manifestly inadmissible for the same reasons as those set out in paragraph 104 above.
113    The applicant’s claim for compensation under the third head of claim is therefore rejected as manifestly inadmissible under Article 126 of the Rules of Procedure and inadmissible under Article 130 of those rules.
The request for measures of organisation of procedure made by the applicant on 14 July 2022
114    The Court considers that, in the present case, it was able to reach a valid decision on the admissibility of the action on the basis of the arguments put forward by the parties and in the light of the documents produced. Furthermore, the facts which the measures of organisation of procedure requested by the applicant on 14 July 2022 were intended to establish are not relevant since they concern the merits of the action and cannot therefore call into question the considerations set out in paragraphs 23 to 113 above relating to the admissibility of the action.
115    The request for measures of organisation of procedure made by the applicant on 14 July 2022 must therefore be rejected.
116    The measures of organisation of procedure requested in the application must also be rejected for the reasons set out in paragraph 114 above.
117    The action is therefore dismissed in its entirety.
Costs
118    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.
119    Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1.      The action is dismissed.
2.      XH shall pay the costs.
Luxembourg, 19 December 2022.
E. Coulon
R. da Silva Passos
Registrar
President
*      Language of the case: English.