ORDER OF THE COURT (Sixth Chamber)
4 May 2023 (*)
(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Civil service – Officials – Disciplinary proceedings – Disciplinary penalty in the form of a reprimand – Action for annulment and for damages – Action manifestly inadmissible or manifestly unfounded)
In Case C‑712/22 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 18 November 2022,
WT, represented by D. Birkenmaier, Rechtsanwalt, D. Rovetta and V. Villante, avvocati,
appellant,
the other party to the proceedings being:
European Commission,
defendant at first instance,
THE COURT (Sixth Chamber),
composed of P.G. Xuereb (Rapporteur), President of the Chamber, T. von Danwitz and A. Kumin, Judges,
Advocate General: L. Medina,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to rule 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, WT seeks to have set aside the judgment of the General Court of the European Union of 7 September 2022, WT v Commission (T‑91/20, not published, EU:T:2022:510; ‘the judgment under appeal’), by which that court dismissed her action based on Article 270 TFEU seeking, first, annulment of the decision of the European Commission of 17 April 2019 by which the Commission imposed on her a disciplinary penalty in the form of a reprimand (‘the decision at issue’) and, second, compensation for the non-material and material damage which she claims to have suffered as a result of that decision.
The appeal
2        Pursuant to Article 181 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court 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        That provision must be applied in the present case.
4        On 8 March 2023, the Advocate General took the following position:
‘1. For the reasons set out below, I propose that the Court, in accordance with Article 181 of its Rules of Procedure, dismiss the appeal in the present case as being in part manifestly inadmissible and in part manifestly unfounded.
2.      In support of her appeal, the appellant raises two grounds of appeal. The first alleges incorrect characterisation of the facts, distortion of the evidence, misinterpretation of the judgment of 14 February 2017, Kerstens v Commission (T‑270/16 P, not published, EU:T:2017:74; “the judgment in Kerstens”), and breach of the principle of legal certainty. The second alleges infringement of Article 41 of the Charter of Fundamental Rights of the European Union and of the reasonable time requirement in the conduct of administrative procedures, and misapplication of the principle of good administration.
The first ground of appeal
3.      By her first ground of appeal, which is divided into four parts, the appellant complains, in essence, that the General Court, first, carried out a contradictory assessment of the facts and thus incorrectly characterised those facts; second, distorted the evidence; third, misinterpreted and misapplied the judgment in Kerstens; and, fourth, infringed the principle of legal certainty.
4.      By the first part of that ground of appeal, the appellant complains, in essence, that the General Court carried out a contradictory assessment of the facts and, consequently, incorrectly characterised those facts when examining the material scope of the administrative investigation opened under reference CMS 17/011 (“procedure CMS 17/011”).
5.      As a preliminary point, it must be borne in mind that, according to settled case-law of the Court of Justice, it is apparent from Article 256(1) TFEU and 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 and that the General Court therefore has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The assessment of the facts and evidence does not, save where the facts or evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal. 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. Where an appellant alleges distortion of the evidence by the General Court, he or she must, pursuant to the provisions referred to above and Article 168(1)(d) of its Rules of Procedure, indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which, in his or her view, led to such distortion (judgments of 25 June 2020, SatCen v KF, C‑14/19 P, EU:C:2020:492, paragraph 105 and the case-law cited, and of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 167 and the case-law cited).
6.      Therefore, the appraisal of the facts by the General Court does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (judgments of 8 March 2016, Greece v Commission, C‑431/14 P, EU:C:2016:145, paragraph 31, and of 25 June 2020, SatCen v KF, C‑14/19 P, EU:C:2020:492, paragraph 104). However, when the General Court has established or assessed the facts, the Court of Justice has jurisdiction, under Article 256 TFEU, to review the legal characterisation of those facts by the General Court and the legal conclusions which it has drawn from them (see, to that effect, judgments of 4 February 2020, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraph 47, and of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 57).
7.      Lastly, the question whether the grounds of a judgment of the General Court are contradictory or inadequate is a question of law which is amenable, as such, to review on appeal (judgments of 15 April 2010, Gualtieri v Commission, C‑485/08 P, EU:C:2010:188, paragraph 39, and of 19 December 2012, Commission v Planet, C‑314/11 P, EU:C:2012:823, paragraph 63).
8.      In this case, the appellant submits, in the first place, that, on the one hand, in paragraph 75 of the judgment under appeal, the General Court accepted that procedure CMS 17/011 and the previous procedure opened under reference CMS 13/031 (“procedure CMS 13/031”) were clearly linked and partially overlapped and that, in procedure CMS 17/011, the Investigation and Disciplinary Office of the Commission (IDOC) had been given a mandate to carry out an administrative investigation into facts concerning the appellant’s conduct which had already been examined in the previous procedure as well as into certain other facts. However, on the other hand, in paragraph 77 of that judgment, the General Court observed that the facts examined in procedure CMS 13/031 were not expressly listed in the new mandate relating to procedure CMS 17/011.
9.      In that regard, it should be noted that, although the General Court observed, in paragraph 77 of the judgment under appeal, that the mandate conferred on IDOC in procedure CMS 17/011 did not expressly list the facts examined in procedure CMS 13/031, that fact is not such as to affect the General Court’s finding that the two procedures were actually linked and that one had to be assessed in the context of the other. As the General Court observed in paragraph 57 of the judgment under appeal, which is not disputed by the appellant in the present appeal, there was a link between procedure CMS 13/031 and procedure CMS 17/011 – which gave rise to the adoption of the decision at issue – on the ground, first, that the subject matter of those procedures was the appellant’s conduct and, second, that the information gathered in procedure CMS 13/031 had been used also in procedure CMS 17/011.
10.      Furthermore, in paragraph 80 of the judgment under appeal, the General Court made a comparison between the report sent by the appointing authority to the Disciplinary Board on 1 July 2016 in procedure CMS 13/031 and the report from the administrative investigation in procedure CMS 17/011, finding that most of the facts referred to in the latter report had already been mentioned in the former report. It follows that, although the facts examined in procedure CMS 13/031 were not expressly listed in the mandate relating to procedure CMS 17/011, they were mentioned in the administrative investigation report relating to that latter procedure, thus establishing the existence of a link between the two procedures.
11.      It follows that the General Court was correct to find that there was a link between procedure CMS 13/031 and procedure CMS 17/011, with the result that the appellant’s claim relating to an alleged contradiction between paragraphs 75 and 77 of the judgment under appeal must be rejected.
12.      In the second place, the appellant submits that the finding in paragraph 77 of the judgment under appeal and recalled in paragraph 8 of the present position contradicts the assessment in paragraph 80 of that judgment that a comparison between the report sent to the Disciplinary Board in procedure CMS 13/031 and the report from the administrative investigation in procedure CMS 17/011 shows that most of the facts at issue referred to in the latter report had already been mentioned in the former report.
13.      In that regard, it must be stated that the fact that the mandate conferred on IDOC in procedure CMS 17/011 did not list the facts examined in procedure CMS 13/031 does not contradict the General Court’s finding, in paragraph 80 of the judgment under appeal, that the facts at issue were mentioned in the administrative investigation report relating to procedure CMS 17/011.
14.      In the third place, the appellant submits that the General Court stated, in paragraph 77 of the judgment under appeal, that the mandate conferred on IDOC in procedure CMS 17/011 was admittedly broad, while concluding, in the following paragraph, that the subject matter of the investigation carried out in that procedure was the appellant’s conduct in the workplace and in her interactions with her superiors and colleagues.
15.      In that regard, it is sufficient to observe that the appellant does not explain how the finding of the General Court in paragraph 77 of the judgment under appeal contradicts its conclusion in the following paragraph.
16.      In the light of the foregoing considerations, it should be concluded that the appellant has not substantiated her claim relating to alleged contradictions in the General Court’s reasoning, with the result that the first part of her first ground of appeal must be rejected as being manifestly unfounded.
17.      By the second part of the first ground of appeal, the appellant complains that the General Court distorted the evidence. More specifically, the General Court distorted the administrative investigation report in procedure CMS 17/011 and paragraph 10 of the decision at issue, from which it is clear that, in the light of the judgment in Kerstens, that procedure had been opened in order to allow the treatment of facts established in procedure CMS 13/031. The General Court did not verify carefully whether the facts mentioned in the file of procedure CMS 17/011 were identical to those referred to in the file of procedure CMS 13/031 and whether the overlap between the factual references in the two files should have led to a finding that procedure CMS 17/011 was based on a considerably extended and imprecise mandate.
18.      As a preliminary point, as has already been noted in paragraph 5 of the present position, where an appellant alleges distortion of the evidence by the General Court, he or she must indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which, in his or her view, led to such distortion.
19.      However, in this case, the appellant does not explain how precisely the evidence was allegedly distorted or how the General Court’s assessment of that evidence is vitiated by an error of law.
20.      Accordingly, the second part of the first ground of appeal alleging distortion of the evidence should be rejected as being manifestly inadmissible.
21.      By the third part of the first ground of appeal, the appellant submits that the General Court misinterpreted and misapplied the judgment in Kerstens. In particular, the General Court erred in law by failing, in essence, to find that the mandate conferred on IDOC in procedure CMS 17/011 went beyond the mere application of the judgment in Kerstens, even though the General Court itself conceded that the opening of that case was specifically aimed at implementing that judgment as well as guaranteeing the rights of defence of the appellant.
22.      In that regard, in so far as the appellant refers to paragraph 58 of the judgment under appeal, it must be noted that the General Court found, in that paragraph, that it was precisely in order to comply with the principles identified in the judgment in Kerstens that the appointing authority had decided not to continue procedure CMS 13/031, since there had been no administrative investigation for the purposes of Article 2 of Annex IX to the Staff Regulations of Officials of the European Union, and to open a different procedure, namely procedure CMS 17/011. In the judgment in Kerstens, the General Court held that IDOC must carry out an administrative investigation for the purposes of that provision before the appointing authority decides, where appropriate, to initiate disciplinary proceedings under Article 3 of Annex IX to those regulations. In this case, it is clear from a combined reading of paragraphs 56, 58 and 75 of the judgment under appeal that it is in order to comply with that case-law that the appointing authority decided not to continue procedure CMS 13/031, to close that procedure and to open a new procedure under reference CMS 17/011.
23.      In any event, it should be noted that the obligation referred to by the General Court in the judgment in Kerstens, which the appointing authority complied with in new Case CMS 17/011, concerns only the conduct and not the content of an administrative investigation.
24.      In so far as the appellant appears to suggest that, in order to ensure a correct application of the judgment in Kerstens in her favour, the Commission should have confined itself to ensuring that, before the disciplinary proceedings were opened, a proper administrative investigation had been conducted by IDOC as regards the facts which had been the subject of procedure CMS 13/031, without extending that investigation to other more recent facts, it should be noted that the appellant has failed to explain how such an obligation could be inferred from the judgment in Kerstens.
25.      Therefore, it cannot be alleged that the General Court misinterpreted and misapplied the judgment in Kerstens.
26.      It follows that the third part of the first ground of appeal should be rejected as being manifestly unfounded.
27.      By the fourth part of the first ground of appeal, the appellant complains that the General Court failed to find that the Commission had infringed the principle of legal certainty in that the appellant could not reasonably expect that, instead of only implementing the judgment in Kerstens, the appointing authority’s decision to open procedure CMS 17/011 was broadening the investigative mandate.
28.      In that regard, it should be noted that the first ground of appeal concerns the examination of the first plea at first instance, which alleged breach of the duty to have regard for the welfare of officials and the principle of good administration, whereas the alleged breach of the principle of legal certainty by the Commission was covered by the third part of the second plea at first instance. However, the General Court examined and rejected that part in paragraphs 153 to 158 of the judgment under appeal, and the appellant does not dispute that part of the judgment under appeal in her appeal. In any event, the appellant’s argument is based on the premiss that the judgment in Kerstens was not applied correctly. However, for the reasons set out in paragraphs 22 and 24 of the present position, it cannot be alleged that the General Court misinterpreted and misapplied that judgment.
29.      Consequently, the fourth part of the first ground of appeal must be rejected as being manifestly unfounded.
30.      Since none of the parts of the first ground of appeal have been upheld, that ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.
The second ground of appeal
31.      By her second ground of appeal, the appellant complains that the General Court, in essence, first, infringed the reasonable time requirement and Article 41 of the Charter of Fundamental Rights by taking the view that the period of almost six years during which the administrative procedure and disciplinary proceedings were conducted constituted a reasonable period and, second, erred in law in holding, in paragraph 141 of the judgment under appeal, that enlarging the mandate of the investigation had been decided in the interests of good administration.
32.      As regards the first complaint, the appellant recalls that procedure CMS 13/031 was closed and procedure CMS 17/011 subsequently opened in order to guarantee her rights of defence in accordance with the case-law identified in the judgment in Kerstens. Since the facts on which the opening of the first procedure was based were common to both procedures and had, consequently, already been examined, procedure CMS 17/011 should have been much shorter. However, the fact that the Commission decided to enlarge the scope of the investigation in procedure CMS 17/011 in relation to the initial mandate in procedure CMS 13/031 and to examine, in that new procedure, a greater number of facts and allegations than in the previous procedure had the effect of prolonging the disciplinary proceedings. The six-year duration of those proceedings is excessive having regard, in particular, to the modest nature of the penalty in the form of a reprimand ultimately imposed.
33.      In that regard, it must be borne in mind that, in accordance with the settled case-law of the Court, it follows from, inter alia, Article 168(1)(d) and Article 169(2) of the Rules of Procedure that an appeal must indicate precisely the contested elements of the decision which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal. The Court of Justice has repeatedly held, in that regard, that an appeal is inadmissible in so far as, without even including an argument specifically identifying the error of law allegedly vitiating the judgment of the General Court, it merely repeats the pleas in law and arguments previously submitted to that court, including those based on facts expressly rejected by 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 on appeal (see, to that effect, order of 26 April 1993, Kupka-Floridi v ESC, C‑244/92 P, EU:C:1993:152, paragraph 10; judgments of 22 December 1993, Eppe v Commission, C‑354/92 P, EU:C:1993:952, paragraph 8; of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 74; of 21 February 2008, Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraphs 88 and 89; and of 4 April 2019, OZ v EIB, C‑558/17 P, EU:C:2019:289, paragraph 33).
34.      In the present case, it must be stated that, by her claims, the appellant seeks, in fact, to obtain a new assessment of the facts from the Court of Justice, without disputing the factors which the General Court took into account in order to conclude that the length of the administrative procedure and disciplinary proceedings was reasonable. Those arguments are therefore, in accordance with the case-law referred to in paragraph 33 of the present position, manifestly inadmissible.
35.      As regards the second complaint of the second ground of appeal, it must be observed that the appellant misreads paragraph 141 of the judgment under appeal, since the General Court merely found, in that paragraph, that the opening of the new procedure had been decided in the interests of good administration and, more specifically, in order better to ensure observance of the appellant’s rights of defence. In the following paragraph, the General Court concluded that, having regard to all the circumstances of the case, including the reasons for the opening of a new procedure, the duration of almost six years was reasonable. Therefore, contrary to the appellant’s arguments, the General Court took the view that it was the opening of the new procedure that was justified by the principle of good administration and not the duration of the disciplinary proceedings themselves of almost six years.
36.      It follows that the second ground of appeal must also be rejected as being in part manifestly inadmissible and in part manifestly unfounded.
37.      In the light of all the foregoing considerations, the appellant’s appeal must be dismissed in its entirety 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, a decision as to costs is to be given in the order which closes the proceedings. In the present case, since the present order was adopted before the appeal was served on the Commission and, therefore, before it could have incurred costs, it is appropriate to decide that WT is 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.      WT shall bear her own costs.
Luxembourg, 4 May 2023.
A. Calot Escobar
P.G. Xuereb
Registrar
President of the Chamber
*      Language of the case: English.