ORDER OF THE COURT (Eighth Chamber)
19 March 2020 (*)
(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — Civil service — Members of the contract staff — European Union Agency for Fundamental Rights (FRA) — Annulment of a decision not to renew a fixed-term contract — Application for revision — Inadmissibility — Appeal in part manifestly inadmissible and in part manifestly unfounded)
In Case C‑682/19 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 15 September 2019,
BP, represented by E. Lazar, avocate,
appellant,
the other party to the proceedings being:
European Union Agency for Fundamental Rights (FRA),
defendant at first instance,
THE COURT (Eighth Chamber),
composed of L.S. Rossi, President of the Chamber, J. Malenovský and N. Wahl (Rapporteur), Judges,
Advocate General: P. Pikamäe,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court,
makes the following
Order
1        By her appeal, BP seeks, in essence, first, to have set aside the order of the General Court of the European Union of 11 July 2019, BP v FRA (T‑917/16 REV, not published, EU:T:2019:548; ‘the order under appeal’), by which the General Court dismissed as inadmissible her application for revision of the judgment of the Civil Service Tribunal of 30 September 2013, BP v FRA (F‑38/12, EU:F:2013:138; ‘the original judgment’), and, secondly, referral of the case to the General Court, as a court of first instance or, if necessary, referral of the case to the General Court as an appeal court so that it may decide on the factual matters which were not annulled by the judgment of the General Court of 3 June 2015, BP v FRA (T‑658/13 P, EU:T:2015:356; ‘the judgment on the appeal’).
The appeal
2        Pursuant to Article 181 of the Rules of Procedure of the Court, 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 January 2020, the Advocate General took the following position:
‘3.      … In support of her appeal, the appellant puts forward four grounds of appeal.
The first ground of appeal
4.      By her first ground of appeal, the appellant submits that the General Court’s assessment of the admissibility of her application for revision is vitiated by a manifest error of assessment, a distortion of the facts and evidence and an error of law. She argues, in essence, that the assessments in paragraphs 62, 72, 90, 95 and 99 of the original judgment were not annulled by the General Court in the judgment on the appeal. That ground is divided into four parts.
The first part of the first ground of appeal
5.      In support of the first part of her first ground of appeal, the appellant disputes the General Court’s conclusions, in paragraphs 55 to 57 of the order under appeal, that the assessments in paragraphs 65, 72, 94, 95 and 99 of the original judgment were annulled by the General Court in the judgment on the appeal so that the action for revision … must be dismissed in so far as it relates to paragraphs 65, 72, 94, 95 and 99.
6.      First, in the judgment on the appeal, the General Court upheld only her first ground, alleging infringement of the rights of the defence, and rejected the other grounds. Those paragraphs of the original judgment clearly concern different matters raised under separate pleas, alleging distortion of the evidence, error of assessment and disregard of the interests of the service, which the General Court did not examine in the judgment on the appeal. That is also apparent from the judgment of 11 July 2019, BP v FRA (T‑888/16, not published, EU:T:2019:493), which dismissed the application for annulment of the second non-renewal decision, adopted in implementation of the judgment on the appeal, which rejected those arguments. It is clear from the pleadings of the European Union Agency for Fundamental Rights (FRA), in that last case, that the FRA considered that the paragraphs at issue had not been annulled. The appellant states, in that regard, that a lack of consistency in the treatment of the same facts and evidence by the same court in the same composition raises a problem in the light of the principles of legal certainty and effective judicial protection. It would appear to follow from the conclusion reached by the General Court, in paragraph 57 of the order under appeal, that the negative assessments made by the FRA against the appellant were annulled in the judgment on the appeal. However, if that had been the case, this would have been reflected in the measures taken to comply with that judgment.
7.      Secondly, the conclusion, in paragraph 56 of the order under appeal, that it is apparent from paragraphs 82 to 84 of the judgment on the appeal that the General Court itself ruled on the claim for damages brought by the appellant is incorrect. The claim for damages on which the General Court ruled has no connection with the application for revision brought by the appellant and was dismissed only because the original judgment was set aside for infringement of the rights of the defence. That dismissal does not cover the three pleas raised in the application for revision.
8.      The appellant concludes that the General Court erred in holding that paragraphs 65, 72, 90, 95 and 99 of the original judgment were not capable of forming the subject matter of revision, since that conclusion is neither based on facts, evidence or legal grounds, nor reasoned. Moreover, the General Court ought to have asked itself whether the findings made in paragraphs 82 to 84 of the judgment on the appeal included the annulment of the assessments contained in the paragraphs referred to above. Therefore, the General Court failed to have regard to the requirements flowing from Article 19(1) TEU and its obligation to examine the facts, and thereby erred in law, by distorting the facts, the evidence, the judgment on the appeal and the logic of the application for revision.
9.      Those arguments cannot succeed.
10.      It is clear from paragraph 56 of the order under appeal that the General Court dismissed the application for revision in that regard on the ground that, in paragraphs 83 and 84 of its judgment on the appeal, it had ruled on the claim for damages submitted at first instance, on the basis of its own considerations.
11.      In this case, in paragraph 154 of the original judgment, the Civil Service Tribunal had found that the material and non-material damage to which the appellant referred arose from the decisions not to renew the appellant’s contract of service and from the reassignment decision, and held that, since it had, first, dismissed the claims for annulment of those two decisions and, secondly, found that there was no irregularity in the conduct of the Director of the FRA, the claim for damages also had to be dismissed.
12.      However, the General Court, after finding that the decision not to renew the appellant’s contract of service was vitiated by an infringement of her rights of defence and, consequently, setting aside the original judgment in that respect, disposed of the case; first, it annulled that decision and, secondly, it drew the inferences from that annulment, by rejecting, in paragraphs 83 and 84 of its judgment on the appeal, the claim for compensation for the material and non-material harm alleged by the appellant, in accordance with the Court’s settled case-law (see, inter alia, judgments of 7 October 1985, van der Stijl v Commission, 128/84, EU:C:1985:395, paragraph 26, and of 28 February 2008, Neirinck v Commission, C‑17/07 P, EU:C:2008:134, paragraph 98, and order of 3 September 2019, FV v Council, C‑188/19 P, not published, EU:C:2019:690, paragraph 4 (View of the Advocate General, paragraph 26 and the case-law cited)).
13.      It follows that the assessment of the claim for damages in respect of the harm alleged by the appellant which the General Court, after disposing of the case, carried out in its judgment on the appeal replaced — as the General Court found in paragraph 56 of the order under appeal — the assessment carried out by the Civil Service Tribunal in the original judgment, because of the very setting aside in part of that judgment and the consequent annulment of the decision not to renew the appellant’s contract of service.
14.      Accordingly, the first part of the first ground of appeal must be rejected as being manifestly unfounded.
The second part of the first ground of appeal
15.      By the second part of her first ground of appeal, the appellant submits that the General Court’s finding, in paragraph 60 of the order under appeal, is incorrect. It is clear from her application for revision and from the new evidence submitted, in particular evidence R.2 and R.3, that she intended to prove that the first reason for non-renewal of her contract, namely the FRA’s limited budgetary resources, was incorrect. The General Court thus distorted that evidence. Similarly, the finding, in paragraph 65 of the order under appeal, that her reassignment was, in any event, justified in the light of her poor personal relations, is not supported by any evidence and is incorrect. She submits that the General Court incorrectly assessed the evidence establishing that the first reason for her non-renewal was incorrect and that the Director of the FRA had misused that director’s powers.
16.      Those arguments cannot be accepted.
17.      It is apparent from paragraphs 63 to 65 of the order under appeal that the General Court held, in essence, that, since the reassignment decision was justified both by the limited budgetary resources of the FRA and by the appellant’s poor personal relations, the fact that the audit reports of 8 January and 5 May 2014 might be capable of calling in question the Civil Service Tribunal’s assessment that the appellant’s arguments alleging misuse of powers were limited to speculation and conjecture was not, in any event, such as to call into question the second reason for the reassignment decision.
18.      The General Court therefore found that there was no need for it to examine the evidence derived from the audit reports of 8 January and 5 May 2014, submitted in the context of the application for revision, since any potential new evidence which they contained was not, in any event, capable of resulting in the revision of the original judgment of the Civil Service Tribunal in so far as the latter dismissed the appellant’s claim for annulment of the reassignment decision.
19.      Accordingly, the appellant’s arguments are based on a misinterpretation of the order under appeal and must, therefore, be rejected as being manifestly unfounded.
The third part of the first ground of appeal
20.      By the third part of her first ground of appeal, the appellant submits that the assessment, in paragraph 75 of the order under appeal, rejecting her offers of evidence, without it being necessary to rule on the question of whether it is possible to submit, on the basis of Article 85 of the Rules of Procedure of the General Court, new offers of evidence in the context of revision proceedings, is vitiated by an error of law. The appellant argues that the General Court ought to have examined that possibility in the first place, and ascertained whether the evidence had been submitted in compliance with Article 169 of the Rules of Procedure of the General Court and Article 44 of the Statute of the Court of Justice of the European Union, in the second place. By failing to exercise its power of review, the General Court infringed Article 19(1) TEU and Articles 47 and 52 of the Charter of Fundamental Rights of the European Union.
21.      Those arguments cannot succeed.
22.      It is apparent, first, from paragraphs 71 and 72 of the order under appeal, that the General Court correctly rejected the evidence offered to the extent that it related to paragraphs of the original judgment which it had held, in the order under appeal, to have been annulled in the judgment on the appeal.
23.      It is apparent, secondly, from paragraphs 74 and 75 of the order under appeal that the General Court held that it was not necessary to allow the offers of evidence submitted by the appellant since they did not relate to paragraphs other than those which had been annulled.
24.      Under the first paragraph of Article 44 of the Statute of the Court of Justice of the European Union, an application for revision must be based on the discovery of one or more new facts. Under the second paragraph of Article 44, it is only if the court hearing the application finds that a new fact exists, and recognises that it is of such a character as to lay the case open for the revision procedure and declares the application admissible on that ground that it can examine the substance of the case.
25.      The Court of Justice has held, in that regard, that if and as long as no new fact has been found, the revision procedure cannot be used to prompt the court hearing the application to order new measures of inquiry (judgment of 8 July 1999, DSM v Commission, C‑5/93 P, EU:C:1999:364, paragraph 44).
26.      Consequently, since the General Court found that the evidence offered did not relate to any paragraph of the original judgment other than those which had been annulled by the General Court in its judgment on the appeal, it did not err in law in concluding, on the basis of Article 85 of its Rules of Procedure, that it was not necessary to examine whether it was possible for the applicant to submit new offers of evidence.
27.      The third part of the first ground of appeal must, therefore, be rejected as being manifestly unfounded.
The fourth part of the first ground of appeal
28.      By the fourth part of her first ground of appeal, the appellant disputes the conclusion reached by the General Court, in paragraph [77] of the order under appeal, that her request for that court to adopt of its own motion “any decision which can be taken … in such a manner that all the other rights and remedies of the applicant for revision not mentioned in the application for revision are observed and respected” must be rejected as being inadmissible, on the ground that it does not satisfy the conditions laid down in Article 76(d) of the Rules of Procedure of the General Court. The appellant states that that request, read in the light of the order of 25 February 1992, Gill v Commission (C‑185/90 P‑REV, EU:C:1992:84, paragraph 15), was sufficiently clear and requested the General Court, inter alia, to join Cases T‑917/16 REV and T‑888/16 and to allow the use of new evidence in the latter case.
29.      Those arguments cannot be accepted.
30.      It should be noted, first, that, by its order of 25 February 1992, Gill v Commission (C‑185/90 P‑REV, EU:C:1992:84), the Court of Justice dismissed as being manifestly inadmissible the action for revision brought by the applicant against the judgment of 4 October 1991, Commission v Gill (C‑185/90 P, EU:C:1991:380) — by which the Court of Justice had declared that the appeal brought against a decision of the General Court was well founded — on the ground that since the Court of Justice had not itself made a final determination in the proceedings but referred the case back to the General Court for a decision on the substance of the case, the Court of Justice gave a decision on points of law only. That judgment could not, therefore, be the subject of an application for revision based on the alleged existence of a new fact.
31.      It is true that, in the context of that assessment, the Court of Justice noted that, following the referral of the case back to the General Court, the dispute was pending in its entirety before that court, so that the applicant, who claimed the existence of a new fact, had the opportunity to plead it in the proceedings before the General Court.
32.      In the present case, the appellant is in a completely different procedural situation to that of the applicant in the case which gave rise to the order of 25 February 1992, Gill v Commission (C‑185/90 P‑REV, EU:C:1992:84), as she brought her application for revision after the General Court, by its judgment in Case T‑658/13 P, partially set aside the original judgment.
33.      Secondly, it should be borne in mind that, under Article 68(1) of the Rules of Procedure of the General Court, two or more cases concerning the same subject matter may at any time, either of the General Court’s own motion or on application by a main party, be joined, on account of the connection between them, for the purposes, alternatively or cumulatively, of the written or oral part of the procedure or of the decision which closes the proceedings.
34.      It is sufficient to note in that regard that, although the present case and Case T‑888/16 arise from one and the same dispute, they do not, however, have the same subject matter and are covered by separate proceedings, namely an appeal against an order dismissing an application for revision as being inadmissible, in the case of the first, and an action for annulment, in the case of the second.
35.      Accordingly, the General Court did not err in law in holding, in paragraphs 78 and 79 of the order under appeal, that the request to adopt of its own motion any decision which can be taken in such a manner that the rights and remedies of the applicant are observed did not satisfy the conditions laid down in Article 76(d) of its Rules of Procedure and, consequently, had to be rejected as being manifestly inadmissible (see, to that effect, order of 7 August 2018, Campailla v European Union, C‑256/18 P, not published, EU:C:2018:655, paragraph 43).
36.      It follows that the fourth part of the first ground of appeal, raised by the appellant in support of her appeal, must also be rejected as being manifestly unfounded.
37.      The first ground of appeal raised by the appellant in support of her appeal must, therefore, be rejected in its entirety as manifestly unfounded.
The second ground of appeal
38.      By her second ground of appeal, which is divided into two parts, the appellant essentially complains that the General Court concluded, in paragraph 57 of the order under appeal, that the assessments in paragraphs 65, 72, 94, 95 and 99 of the original judgment had been annulled by the General Court in the judgment on the appeal and, consequently, that it dismissed her application for revision of those paragraphs as being inadmissible. That ground is divided into two parts.
39.      In the first part, the appellant submits, in essence, that the General Court, as the court of first instance hearing the application for revision in Case T‑917/16 REV, disregarded the provisions of Article 127 of its Rules of Procedure, Article 54(2) of the Statute of the Court of Justice of the European Union and Article 19(2) TEU, by failing to decline its jurisdiction, or refer the case back to the General Court, as the court called upon to rule on appeals against decisions of the Civil Service Tribunal, or to refer a question to the latter pursuant to, inter alia, Article 24 of the Statute of the Court of Justice of the European Union.
40.      She argues that if the General Court considered that the assessments in paragraphs 65, 72, 94, 95 and 99 of the original judgment had been annulled by the General Court in its judgment on the appeal, it ought then to have declined its jurisdiction to revise them and referred the case back to the General Court as an appeal court, without substituting its own assessment for that of the latter. Given that, in the judgment in Case T‑658/13 P, the General Court examined certain facts, it was for that court alone to decide on the admissibility of the application for revision of those paragraphs.
41.      In the second part of the second ground of appeal, which makes reference to the third ground, the appellant claims, in essence, that the General Court did not examine her application for revision in compliance with the specific admissibility criteria laid down in Article 169 of its Rules of Procedure and Article 44 of the Statute of the Court of Justice of the European Union. It failed to clarify the facts, to give reasons for its decision and repeatedly infringed the appellant’s right to be heard, her rights of defence and her right to a fair hearing, inasmuch as it disregarded the evidence submitted pursuant to Article 85(3) of the Rules of Procedure of the General Court.
42.      None of the arguments put forward by the appellant in that regard can succeed.
43.      It is sufficient to note that paragraphs 65, 72, 94, 95 and 99 of the original judgment are included among the grounds of the General Court’s examination of the application for annulment of the decision not to renew the appellant’s contract of service. By its judgment on the appeal, the General Court, first, on grounds of infringement of the appellant’s rights of defence, set aside the original judgment, in so far as, by that judgment, the Civil Service Tribunal had dismissed the action for annulment of that decision and, secondly, annulled that decision, on the same grounds.
44.      Those grounds could, therefore, no longer form the subject matter of revision.
45.      Accordingly, without it being necessary to examine the various arguments put forward by the appellant in the context of her second ground of appeal, it must be concluded that the General Court did not err in law in dismissing the appellant’s application for revision as inadmissible to the extent that that application related to those paragraphs.
46.      The second ground of appeal raised by the appellant in support of her appeal must, therefore, be rejected as being manifestly unfounded.
The third ground of appeal
47.      The appellant’s third ground of appeal alleges a failure to examine the heads of claim and pleas which she put forward in her application for revision. That ground consists of three parts.
The first part of the third ground of appeal
48.      In the first part of her third ground of appeal, the appellant submits that the General Court failed to examine her second to fourth heads of claim and the three pleas in law raised in support of her application for revision. She notes, in particular, that, by her second head of claim, she requested the General Court to analyse the best solution for dealing with the application for revision, taking into account the circumstances of the case and the relevant case-law, in particular the order of 25 February 1992, Gill v Commission (C‑185/90 P‑REV, EU:C:1992:84).
49.      Those arguments, which are based on evidence with no factual basis, must be rejected as being manifestly unfounded.
50.      It is sufficient, in that regard, to note that the General Court examined the appellant’s fourth head of claim, which corresponded to her third plea examined in paragraphs 77 to 79 of the order under appeal, and that it ruled on costs, in paragraphs 80 and 81 of that order, thereby responding to the appellant’s third head of claim. Furthermore, in the light of the dismissal of the application for revision as being inadmissible, there was no need for the General Court to rule on the claims in the alternative expressed by the appellant in the context of her third head of claim, as set out in paragraph 40 of that order.
51.      In addition, the appellant submits that the order under appeal was not made within a reasonable time, requiring two years and eight months, in breach of her right to a fair hearing within a reasonable time, as guaranteed in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and Article 47 of the Charter of Fundamental Rights.
52.      However, it must be stated that the appellant merely alleges an infringement of her right to a fair hearing, without providing the slightest evidence that the length of the proceedings affected the outcome of the dispute. In accordance with the case-law of the Court of Justice, the plea that the proceedings before the General Court did not satisfy the requirements concerning completion within a reasonable time cannot as a general rule lead to the setting aside of the judgment delivered by that Court and must, therefore, be declared inadmissible (judgments of 20 May 2010, Gogos v Commission, C‑583/08 P, EU:C:2010:287, paragraph 57, and of 26 November 2013, Groupe Gascogne v Commission, C‑58/12 P, EU:C:2013:770, paragraphs 73 to 76 and the case-law cited). In any event, it should be noted that there was a multiplication of procedural issues, due solely to the appellant’s initiative, which related, inter alia, to the submission of new offers of evidence.
The second part of the third ground of appeal
53.      In the second part of the third ground, the appellant submits, in essence, that the General Court did not examine any of the evidence which she had submitted in support of her application for revision. More specifically, that application was not dismissed pursuant to Article 169 of the Rules of Procedure of the General Court, but because the General Court found that that application, to the extent that it concerned paragraphs 65, 72, 94, 95 and 99 of the original judgment, was inadmissible since those paragraphs had been annulled by the General Court in paragraphs 82 to 84 of the judgment on the appeal. She contends that she has established that the first reason for the decision not to renew her contract of service was incorrect and that the evidence adduced in that regard met the requirements of Article 169 of the Rules of Procedure of the General Court, so that her application for revision was admissible.
54.      Those arguments, which essentially repeat the arguments put forward in support of the second ground raised in support of present appeal, must also be rejected, for the same reasons as those set out in paragraphs 42 to 45 above, as being manifestly unfounded.
The third part of the third ground of appeal
55.      In the third part of her third ground of appeal, the appellant complains that the General Court failed to assign the case to a Chamber of five judges, which was justified in the light of the complexity and sensitivity of the case. She also calls into question the dual functions assumed by Judge Labucka as Judge-Rapporteur and in acting as President of the formation of the court which made the order under appeal, contending that, in a situation where a vote was required, that could mean that Judge Labucka had voted twice.
56.      Those arguments cannot be accepted.
57.      As regards, in the first place, the fact that the case in question was assigned to a Chamber of three judges, it should be noted that the appellant merely criticises the composition of the formation of the court which made the order under appeal, without providing the slightest explanation as to the reasons why she considers that the choice of formation made by the General Court infringed the provisions of Article 28 of the Rules of Procedure of the General Court. In any event, it is apparent from paragraph 1 of that article that the reason for referral to a Chamber sitting with a different number of judges must be the legal difficulty or the importance of the case or special circumstances justifying it. In the present case, the admissibility of the application for revision presented no such difficulty or importance or special circumstances.
58.      As regards, in the second place, the argument that the Judge-Rapporteur was given two votes because of her position acting as President of the formation of the court concerned, the appellant puts forward no basis in support of her claim. Furthermore, there is no basis for her argument in the Statute of the Court of Justice of the European Union or in the Rules of Procedure of the General Court. On the contrary, Article 21 of Rules of Procedure of the General Court suggests that each judge has one vote.
59.      Accordingly, the appellant’s arguments must be rejected as being manifestly inadmissible and, in any event, as being manifestly unfounded.
60.      It follows that the third ground raised by the appellant in support of her appeal must be rejected as being, in part, manifestly inadmissible and, in part, manifestly unfounded.
The fourth ground of appeal
61.      In her fourth ground of appeal, the appellant complains that the General Court infringed Articles 134 and 135 of its Rules of Procedure. More specifically, the General Court erred in finding that she should be ordered to pay the costs, since she had been unsuccessful in her submissions.
62.      She submits that the General Court failed to set out specifically the reasons why Article 135 of the Rules of Procedure was not applicable to the present case. Her claim for costs was expressly based on a reference to the FRA’s conduct which gave rise to her application for revision. However, the General Court did not examine that claim properly.
63.      Under the second paragraph of Article 58 of the Statute of the Court of Justice of the European Union, “no appeal shall lie regarding only the amount of the costs or the party ordered to pay them”. Where all the other grounds of an appeal have been rejected, any form of order sought concerning the alleged unlawfulness of the General Court’s decision on costs must be rejected as inadmissible pursuant to that provision (see, to that effect, judgment of 29 July 2019, Red Bull v EUIPO, C‑124/18 P, EU:C:2019:641, paragraph 100).
64.      In the present case, since the three first grounds of appeal have been rejected, the fourth ground of appeal must be rejected as being manifestly inadmissible, in accordance with the case-law referred to in the previous paragraph.
65.      It follows from all the foregoing considerations that 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 as being, in part, manifestly inadmissible and, in part, manifestly unfounded.
Costs
6        Pursuant to Article 137 of the Rules of Procedure, which is applicable to the procedure on appeal pursuant to Article 184(1) thereof, a decision as to costs is to be given in the order which closes the proceedings. In this case, since the present order was adopted before the appeal was served on the defendant at first instance and, therefore, before it could have incurred costs, it is appropriate to decide that BP is to bear her own costs.
On those grounds, the Court (Eighth Chamber) hereby orders:
1.      The appeal is dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded.
2.      BP shall bear her own costs.
Luxembourg, 19 March 2020.
A. Calot Escobar
L.S. Rossi
Registrar
President of the Eighth Chamber
*      Language of the case: English.