JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
6 November
2024 (*)
( Arbitration clause – Common foreign and security policy – Civilian international staff of EU international missions – Consecutive fixed-term employment contracts – Internal competition – Non-renewal of a fixed-term contract – Contractual liability – Admissibility – Judgment by default – Application to set aside )
In Case T‑242/17 RENV-OP,
SC, represented by A. Kunst, lawyer,
applicant in the main proceedings,
v
Eulex Kosovo, established in Pristina (Kosovo), represented by L.-G. Wigemark, acting as Agent, and by E. Raoult, lawyer,
defendant in the main proceedings,
THE GENERAL COURT (Fifth Chamber),
composed of J. Svenningsen, President, C. Mac Eochaidh and M. Stancu (Rapporteur), Judges,
Registrar: P. Cullen, Administrator,
having regard to the judgment of 25 June 2020, SC v Eulex Kosovo (C‑730/18 P, EU:C:2020:505), by which the Court of Justice set aside the order of 19 September 2018, SC v Eulex Kosovo (T‑242/17, EU:T:2018:586), and referred the case back to the General Court,
having regard to the judgment of 19 October 2022, SC v Eulex Kosovo (T‑242/17 RENV, not published, EU:T:2022:637),
having regard to the order of 29 March 2023, SC v Eulex Kosovo (T‑242/17 RENV-OP, not published, EU:T:2023:193), by which the General Court stayed the execution of the judgment of 19 October 2022, SC v Eulex Kosovo (T‑242/17 RENV, not published, EU:T:2022:637), until a decision had been given on the present application to set aside,
having regard to the judgment of 18 January 2024, Eulex Kosovo v SC (C‑785/22 P, EU:C:2024:52), by which the Court of Justice declared inadmissible the appeal brought by Eulex Kosovo against the judgment of 19 October 2022, SC v Eulex Kosovo (T‑242/17 RENV, not published, EU:T:2022:637),
having regard to the written part of the procedure, in particular the decision rejecting Eulex Kosovo’s request that the case be heard and determined by a Chamber sitting with at least five judges, since Eulex Kosovo was not an ‘institution of the Union’ within the meaning of Article 28(5) of the Rules of Procedure of the General Court then applicable,
further to the hearing on 20 March 2024,
gives the following
Judgment
1        By its application under Article 166(2) of the Rules of Procedure of the General Court, Eulex Kosovo seeks to have set aside the judgment of 19 October 2022, SC v Eulex Kosovo (T‑242/17 RENV, not published, ‘the judgment by default’, EU:T:2022:637), by which the General Court, judging by default in favour of the applicant in the main proceedings, SC (‘the applicant’), pursuant to Article 123(3) of those rules, ordered Eulex Kosovo to pay her compensation in respect of the material damage suffered, equivalent to 19 months’ gross salary, to which the daily subsistence allowance and the salary increase should be added, to correspond to the situation in which the applicant’s final employment contract was renewed until 14 June 2018, together with compensation for the non-material damage suffered, assessed ex æquo et bono at EUR 50 000.
Background to the main dispute
2        The Eulex Kosovo Mission was created by Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO (OJ 2008 L 42, p. 92). That action was extended several times, most recently by Council Decision (CFSP) 2023/1095 of 5 June 2023 amending Joint Action 2008/124 (OJ 2023 L 146, p. 22), until 14 June 2025.
3        The applicant is a former member of the international contract staff of Eulex Kosovo. She was employed by Eulex Kosovo as a prosecutor, with the status of international contractual staff, on the basis of five consecutive fixed-term contracts during the period from 4 January 2014 to 14 November 2016. The final contract between the applicant and Eulex Kosovo was concluded for the period from 15 June to 14 November 2016.
4        The first two fixed-term contracts contained a clause designating the courts of Brussels (Belgium) as having jurisdiction in the event of any dispute arising out of the employment contract. The final three fixed-term contracts provided, in Article 21 thereof, that any disputes relating to the employment contract were to be referred to the jurisdiction of the ‘Court of Justice of the European Union, pursuant to Article 272 [TFEU]’.
5        In accordance with Article 1.2 of the final employment contract, the Operation Plan (‘OPLAN’), the Concept of Operations, the Code of Conduct and the Standard Operating Procedures (‘SOP’) of Eulex Kosovo formed an integral part of that contract.
6        On 14 April 2014, the applicant had a meeting with, inter alia, her line manager at the time (‘the line manager in question’), who was Eulex Kosovo’s Prosecutor General, to discuss her performance evaluation report (‘the PER’) for 2014 (‘the first 2014 PER’). At that meeting, she was provided with a copy of the first 2014 PER. In that report, the line manager in question had, inter alia, assessed the applicant’s activity by stating that ‘she [had] not demonstrated a willingness to work [and] an understanding of the role and factors pertinent to the job’ and that ‘[she had] not accepted guidance and [had], on a number of occasions, been openly dishonest’. On the basis of that assessment, the line manager in question had stated that she did not recommend the extension of the applicant’s employment contract.
7        On 28 April 2014, the applicant lodged a complaint against the first 2014 PER (‘the first complaint’), in which she challenged the assessments contained in that report and, in general, the irregularities committed in the evaluation procedure. By decision of 12 August 2014, the Head of Eulex Kosovo informed the applicant that the first 2014 PER had been annulled. The ground for annulment accepted was the fact that the three-month evaluation period was too short to draw a definitive conclusion on the unsatisfactory performance of a member of staff.
8        On 1 July 2014, the applicant received notification of the organisation of an internal competition for the post of prosecutor, since, under the 2014 OPLAN, the number of prosecutor posts had to be reduced and Article 4.3 of the SOP on the Principles and Process of Reconfiguration (‘the SOP on the reconfiguration’) provided for the organisation of a competition in such circumstances.
9        The applicant took part in the 2014 internal competition, which took place during the summer of that year. On 19 August 2014, she was informed by the line manager in question that she had failed that competition.
10      On 25 August 2014, the applicant lodged a complaint against the result of the 2014 internal competition (‘the second complaint’). She challenged, first, the fact that the chairperson of the selection board and another member had the same nationality and, secondly, the fact that the line manager in question was the chairperson of that selection board, inasmuch as the latter was involved in the first complaint procedure, which was still pending at the date of organisation of the 2014 internal competition. The Head of Eulex Kosovo annulled the 2014 internal competition on the ground that two members of the selection board held the same nationality.
11      On 7 October 2014, the line manager in question drew up a new PER for the applicant for 2014, in which she proposed the renewal of the applicant’s contract.
12      In addition, in 2014, Eulex Kosovo asked the applicant on several occasions to take a driving test. The applicant failed that test three times during that period, most recently on 22 October 2014. In September and October 2014, the applicant provided the human resources unit of Eulex Kosovo with documents attesting that she had a ‘disability’ affecting her right hand. In November 2015 and February 2016, the applicant was again asked to take a driving test.
13      By letter of 24 June 2016, the applicant was informed of the organisation of an internal competition (‘the 2016 internal competition’), since a decision to reduce the number of prosecutor’s posts in Eulex Kosovo from 22 to 13 had been taken on the basis of the 2016 OPLAN and Eulex Kosovo’s deployment plan approved on 20 June 2016 by the Civilian Operations Commander (‘the 2016 deployment plan’). In the same letter, it was stated that failure to take part in that competition or unsatisfactory results meant that the applicant’s final employment contract would not be renewed, whereas a positive result in the competition would lead to its renewal.
14      On 19 July 2016, in the 2016 internal competition, the applicant took part in an interview before the selection board. Both before and during the interview, the applicant challenged the composition of the selection board on the ground that the chairperson of that selection board was the line manager in question, who was involved in the first and second complaints which she had previously brought and which had been successful. Accordingly, the applicant claimed that the composition of the selection board did not meet the requirement of impartiality laid down in the OPLAN and the SOP.
15      By letter of 30 September 2016, the applicant was informed of the decision not to accept her application following the 2016 internal competition and of the decision not to renew her final employment contract (‘the non-renewal decision’).
16      The applicant obtained in the interview organised in the context of the 2016 internal competition, a total score of 46% and for the criterion ‘Required competency, based on the Job Description [and] Integrity’, a mark of 0. The evaluation grid for that interview stated that the candidate who scored 0 in any one criterion or who was awarded
a final score of less than 50% would be ineligible to be recommended for the position. The applicant was placed second-to-last on the reserve list for that internal competition, with a total of 55.53 points.
17      By letter of 10 October 2016 (‘the third complaint’), the applicant, in accordance with Article 5 of the SOP on the reconfiguration, lodged a complaint against the decision not to accept her application following the 2016 internal competition and the non-renewal decision (together, ‘the contested decisions’). She claimed that the chairperson of the selection board had a conflict of interests, in breach of the provisions of the SOP on the reconfiguration and the SOP on Staff Selection.
18      By letter of 31 October 2016, the Head of Eulex Kosovo rejected the third complaint.
19      On 1 November 2016, the applicant sent an email to the Head of Eulex Kosovo requesting arbitration pursuant to Article 20(2) of her final employment contract. That request was rejected on 14 November 2016, the day on which her employment contract expired.
Forms of order sought
20      Eulex Kosovo contends that the Court should:
–        set aside the judgment by default;
–        dismiss the action registered under case number T‑242/17 in its entirety;
–        order the applicant to pay the costs.
21      The applicant claims that the Court should:
–        reject the application to have the judgment by default set aside and, consequently, confirm the compensation awarded by that judgment;
–        order Eulex Kosovo to pay her compensation for the non-material damage resulting from the unreasonable length of the proceedings assessed ex æquo et bono at EUR 10 000;
–        order Eulex Kosovo to pay the costs, plus interest calculated at the rate of 8%.
22      At the hearing, the applicant stated that she was withdrawing the second head of claim which was submitted in connection with the observations on the application to set aside and concerned the failure to comply with the reasonable time requirement and the resulting damage. Formal note of that withdrawal was taken in the minutes. Consequently, there is no longer any need to adjudicate on that head of claim.
Law
23      By its application to set aside, Eulex Kosovo submits that the General Court does not have jurisdiction to rule on the action in the main proceedings and that that action is, in any event, inadmissible and unfounded.
24      As regards the jurisdiction of the General Court to rule on the action in the main proceedings and its admissibility, it should be recalled that, in Case T‑242/17, by separate document lodged at the Registry of the General Court on 24 August 2017, Eulex Kosovo raised a plea of lack of jurisdiction and inadmissibility under Article 130(1) of the Rules of Procedure, in which it requested the General Court to dismiss the action as inadmissible on the ground of lack of jurisdiction. In addition, in Case T‑242/17 RENV, by separate document lodged at the Registry of the General Court on 30 October 2020, Eulex Kosovo raised another plea of inadmissibility under Article 130(1) of the Rules of Procedure, in which it requested the General Court to dismiss the action as inadmissible on the ground, first, that it had been brought on the basis of Article 272 TFEU and, second, that the application did not satisfy the requirements of Article 76(d) of the Rules of Procedure on account of its lack of clarity.
25      At the hearing, Eulex Kosovo accepted that the General Court has jurisdiction to rule on the action in the main proceedings, and formal note of that acceptance was taken in the minutes of the hearing. Consequently, the General Court finds that there is no longer any need to adjudicate on the complaints set out both in its application to set aside and in the plea of lack of jurisdiction and inadmissibility of 24 August 2017, according to which the action in the main proceedings falls within the jurisdiction of the Brussels courts.
26      Eulex Kosovo maintained, however, that the action in the main proceedings was inadmissible, first, in so far as it had been brought on the basis of Article 272 TFEU rather than on the basis of Article 263 TFEU and, second, on account of its lack of clarity.
Admissibility of the action in the main proceedings
27      In the first place, Eulex Kosovo submits that the contested decisions are not of a contractual nature, but rather of an administrative nature, and are consequently separable from the applicant’s final employment contract. They therefore had to be challenged on the basis of Article 263 TFEU. Since the applicant did not comply with the deadlines for bringing an action on the basis of that provision, she is definitively time-barred from challenging the lawfulness of the contested decisions.
28      In that context, Eulex Kosovo submits that it took the decision to organise the 2016 internal competition as an administrative authority in the exercise of its public powers and therefore independently of the employment contract binding it to the applicant. That decision is the result of a reduction in the number of Eulex Kosovo prosecutor posts provided for by the OPLAN and 2016 deployment plan. Therefore, since the applicant did not have any acquired right to renewal of her contract, that competition was to be regarded as being separable from that contract. Moreover, since the OPLAN is of an
organisational and operational nature, it constitutes an administrative document, and not a contractual document.
29      Eulex Kosovo further submits that the PERs of the candidates were neither communicated to the members of the selection board of the 2016 internal competition nor taken into consideration in the selection board’s assessment of those candidates in that competition. According to Eulex Kosovo, all the candidates in that procedure were assessed solely on the basis of questions related to their general competencies as prosecutors and not on the basis of such reports. That fact had already been pointed out to the applicant at the time of the 2014 internal competition. Since those reports were the only ones which reflect the contractual performance history of members of staff, such as the applicant, who participate in an internal competition procedure, the fact that they were not taken into consideration in the 2016 internal competition demonstrates that there is no link between the applicant’s performance of the employment contract and that competition.
30      In the second place, Eulex Kosovo refers again to the lack of clarity of the application and submits that the applicant did not provide any evidence to support a lack of impartiality on the part of the line manager in question in her regard during the 2016 internal competition.
31      The applicant disputes those arguments.
32      It should be recalled that Article 272 TFEU is a specific provision allowing the Courts of the European Union to be seised under an arbitration clause agreed by the parties for contracts governed by either public or private law, and without restriction as regards the nature of the action to be brought before the Courts of the European Union (see judgment of 25 June 2020, SC v Eulex Kosovo, C‑730/18 P, EU:C:2020:505, paragraph 30 and the case-law cited).
The jurisdiction of the Courts of the European Union under an arbitration clause derogates from the ordinary rules of law and must therefore be given a restrictive interpretation. It follows that the Courts of the European Union may hear and determine only claims arising from the contract concluded with the European Union which contains the arbitration clause, or claims that are directly connected with the obligations arising from that contract (see, to that effect, judgment of 5 July 2018, Jenkinson v Council and Others, C‑43/17 P, EU:C:2018:531, paragraphs 38 and 40).
33      In order to establish whether the clause in Article 21 of the applicant’s final employment contract confers jurisdiction on the General Court to hear and determine, inter alia, the third head of claim in the action in the main proceedings, by which the applicant seeks a declaration that the contested decisions are unlawful, it must be examined whether those decisions are directly connected with the obligations arising under that final employment contract, in the light, in particular, of Article 1.2 of that contract and Article 4.3 of the SOP on the reconfiguration (judgment of 25 June 2020, SC v Eulex Kosovo, C‑730/18 P, EU:C:2020:505, paragraphs 42, 46, 49 and 55).
34      It should be recalled at the outset that Article 10(3) of Joint Action 2008/124 provides that the conditions of employment and the rights and obligations of international and local civilian staff are to be laid down in the contracts to be concluded between Eulex Kosovo and the members of staff.
Therefore, the employment relationship between the applicant and Eulex Kosovo, which ended on 14 November 2016, was of a contractual nature (see, by analogy, judgment of 13 July 2022, JF v EUCAP Somalia, T‑194/20, EU:T:2022:454, paragraph 32).
35      Furthermore, it is common ground between the parties that the 2016 internal competition was organised following the decision to reduce the number of prosecutor’s posts adopted on the basis of the 2016 deployment plan in accordance with the rules laid down in the OPLAN and in the SOP on the reconfiguration, which, according to Article 1.2 of the applicant’s final employment contract, form an integral part of that contract, together with the Concept of Operations, the Code of Conduct and the other SOP (see paragraph 5 above).
36      Moreover, the OPLAN, the Code of Conduct and the SOP are mentioned several times in the applicant’s final employment contract. Thus, Article 4.1 of that contract stipulates that the employee is to conduct himself or herself in full compliance with the SOP and the Code of Conduct. Articles 17.1 and 17.2 of that contract state that any failure to comply with obligations under the contract or the SOP is to make the employee liable to disciplinary action, in accordance with the terms of the SOP, and that disciplinary measures are to take one of the forms indicated in the Code of Conduct. Last, several provisions of that contract relating, inter alia, to salary and reimbursements, to leave rights, to the redeployment of staff and to the possibility of lodging a disciplinary appeal make express reference to the SOP.
37      In that context, first, even if the OPLAN and the SOP were, as Eulex Kosovo maintains (see paragraph 28 above), of an administrative nature, the fact remains that, in the present case, the applicant’s final employment contract refers to those documents, stating that they form an integral part of it. Those documents were therefore incorporated into that contract on the basis of the intention of the parties and thus form the basis of their rights and obligations in the performance of that contract.
38      Second, it should be noted that Article 4.3 of the SOP on the reconfiguration, which reiterates what is stated on page 16 of the 2016 OPLAN, provides, in the first place, that, in the event of a reduction in the number of posts with the same description, ‘staff sharing the same [job description] will enter into an internal competition with one another’. It is in particular because the applicant was bound to Eulex Kosovo by her final employment contract that she was invited to take part in the 2016 internal competition between her and the other prosecutors, with the result that that competition is a continuation of the contractual relationship between her and Eulex Kosovo.
39      In the second place, according to Article 4.3 of the SOP on the reconfiguration, the current contracts of unsuccessful candidates will not be renewed beyond their expiry, whereas a positive result for the competition entails the renewal of those contracts. The content of that provision is recalled both in the letter of 24 June 2016 informing the applicant of the organisation of the 2016 internal competition and in the email sent to her by the Director of Human Resources of Eulex Kosovo on 19 July 2016, which refer more specifically to the date of expiry of her last contract, namely 14 November 2016. Thus, if the applicant wished to extend her contract of employment with Eulex Kosovo, she was required to take part in the 2016 internal competition, with the result that the continuation of the contractual relationship between the parties was closely linked to the decisions adopted following that competition, such as the contested decisions.
40      In the third place, it is apparent from Article 4.3 of the SOP on the reconfiguration, that, in internal competitions, it is necessary to take into account, ‘amongst others, … the previous [PERs]’. Thus, contrary to what Eulex Kosovo contends (see paragraph 29 above), past PERs are taken into consideration in the assessment of candidates in an internal competition, such as that in the present case, which shows that the 2016 internal competition is a continuation of the contractual relationship between Eulex Kosovo and the applicant.
41      That finding cannot be invalidated by the exchange between the applicant, the Director of Human Resources and the Head of Eulex Kosovo concerning the 2014 internal competition, produced as Annex B.17 to the application to set aside, since the contested decisions were adopted following the 2016 internal competition, and not that of 2014. In addition, Eulex Kosovo’s position is belied by the email of 5 August 2014 sent by the Director of Human Resources of Eulex Kosovo to the applicant, in so far as that email mentions that, among the various factors taken into consideration for the competition, there is ‘the interview, [the] test, [where] applicable, and [the] PER average mark’. Lastly, when questioned at the hearing as to whether the difference between the score obtained by the applicant in the interview (namely 46%) and the final mark obtained in the final ranking (namely 55.53 points) specifically reflected the taking into account of the PERs, Eulex Kosovo merely stated that that discrepancy was due to an ‘realignment’ of the final results without, however, providing the slightest explanation as to how that ‘realignment’ enabled an increase from 46% to 55.53 points. In the light of the clear wording of Article 4.3 of the SOP on the reconfiguration and in the absence of any information capable of explaining that ‘realignment’ system, it may be inferred that the difference between the score obtained by the applicant in the interview and the final mark obtained in the final ranking is due to the fact that past PERs were taken into account.
42      Thirdly, it should be noted that, as regards the decision not to renew the applicant’s final employment contract, the finding that that decision is directly related to the obligations arising from that contract is further reinforced by the fact that the latter employment contract provides, in Article 16.2 thereof, for the termination of that contract by the employee or by the employer. It follows that, by taking the decision not to renew the applicant’s final employment contract, Eulex Kosovo was acting as employer in terminating the applicant’s employment within the contractual framework between the parties (see, to that effect, Opinion of Advocate General Tanchev in SC v Eulex Kosovo, C‑730/18 P, EU:C:2020:176, point 104).
43      Fourthly, it should be noted that Article 5 of the SOP on the reconfiguration provides that, ‘without prejudice to the legal remedies foreseen by the employment contracts, any member of the staff affected by the reconfiguration may request the review of the process from the Head of Mission [of Eulex Kosovo] in case of substantiated concerns by the staff member affected about the fairness and accurateness of the process’. That provision therefore includes the applicant’s recourse to legal remedies provided for in her final employment contract, namely, in the present case, an action brought under Article 272 TFEU pursuant to the clause laid down in Article 21 of that contract. In addition, it should be recalled that the present action follows a request for arbitration submitted by the applicant on the basis of Article 20(2) of her final employment contract (see, by analogy, judgment of 13 July 2022, JF v EUCAP Somalia, T‑194/20, EU:T:2022:454, paragraph 33).
44      In the light of all those circumstances, it must be concluded that the OPLAN and the SOP of Eulex Kosovo form part of the contractual relationship between the applicant and Eulex Kosovo and that the contested decisions are therefore directly connected with the parties’ obligations under the applicant’s final employment contract, which forms the basis of those obligations.
45      Since the contested decisions are not therefore intended to produce binding legal effects falling outside of the contractual relationship between the applicant and Eulex Kosovo and involving the exercise, by the latter, of public powers, they cannot be regarded as open to an action for annulment under Article 263 TFEU (see, by analogy, judgment of 13 July 2022, JF v EUCAP Somalia, T‑194/20, EU:T:2022:454, paragraph 40).
46      By contrast, in so far as the contested decisions are contractual in nature and fall within the scope of Article 21 of the applicant’s final employment contract (see paragraph 4 above), they are open to challenge on the basis of Article 272 TFEU.
47      Consequently, the action in the main proceedings is admissible in so far as it was brought under Article 272 TFEU.
48      Lastly, as regards the argument relating to the alleged lack of clarity of the application, it should be noted that the applicant sets out with sufficient precision, in particular in paragraphs 75 to 78 and 92 to 96 of the application, in connection with the second and the third pleas respectively, the wrongful acts alleged against Eulex Kosovo in the 2016 internal competition and the reasons why she considers that the chairperson of the selection board was in a situation of conflict of interests and was therefore not in a position to assess her interview impartially.
49      Furthermore, Eulex Kosovo summarises in a precise and detailed manner, at paragraph 57 of the application to set aside, the applicant’s arguments concerning the alleged conflict of interests of the chairperson of the selection board and the alleged breach by that chairperson, of the principle of impartiality, which shows that it was indeed in a position to understand the applicant’s arguments and prepare its defence.
50      In any event, the question whether the applicant has proved to the requisite legal standard the existence of an alleged conflict of interests and lack of impartiality on the part of the chairperson of the selection board concerns the merits of the action in the main proceedings and not its admissibility.
51      In the light of the foregoing considerations, it must be held that the action in the main proceedings is admissible.
Merits of the action in the main proceedings
52      In the action in the main proceedings, the applicant submitted five pleas in law, alleging, first, procedural irregularities during the 2016 internal competition; second, a conflict of interests on the part of the line manager in question in that competition; third, lack of impartiality of that line manager in that competition; fourth, infringement of Articles 31 and 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’) in connection with the driving tests and, fifth, infringement of Article 31 of the Charter throughout the whole period in which she worked for Eulex Kosovo. She also requested compensation for the material and non-material damage caused by Eulex Kosovo as a result of the unlawful acts raised in those pleas in law.
53      In her application for the General Court to grant her judgment by default under Article 123(1) of the Rules of Procedure, the applicant withdrew the fifth plea in law (judgment by default, paragraph 54). She also confirmed that withdrawal in paragraph 1 of the observations on the application to set aside, with the result that there is no longer any need to adjudicate on that plea.
54      In her observations on the application to set aside, the applicant also submits, in the first place, that in the light of the case-law deriving from the judgment of 13 July 2022, JF v EUCAP Somalia (T‑194/20, EU:T:2022:454), the infringements relied on in the initial application must now be reclassified, primarily, as contractual breaches falling within the scope of Article 272 TFEU and, only in the alternative, as non-contractual infringements under Article 268 TFEU or as being partly contractual and partly non-contractual.
55      In the second place, the applicant submits, as regards the law applicable in the present case, that, as is apparent from the judgment of 13 July 2022, JF v EUCAP Somalia (T‑194/20, EU:T:2022:454), the action in the main proceedings may be decided on the basis of the provisions of her final employment contract, the SOP, the Charter and general principles of law, which Eulex Kosovo does not dispute.
56      Given that the conflict of interests is merely a variant of the defect of bias, since the requirement of impartiality covers all circumstances in which an official or agent who is called upon to decide on an issue must reasonably consider that issue as being of such a nature as to be viewed by third parties as a possible source of impairment of his or her independence (see, by analogy, judgment of 10 February 2021, Spadafora v Commission, T‑130/19, not published, EU:T:2021:74, paragraph 99 and the case-law cited), the Court considers it appropriate to examine, first and together, the second and third pleas, then the first plea, then the fourth plea and, lastly, the heads of damage.
The second and third pleas, both alleging infringement of Article 41 of the Charter in the 2016 internal competition
57      The second and third pleas are based, in essence, on an infringement of Article 41 of the Charter in the 2016 internal competition. According to the applicant, Eulex Kosovo infringed the principle of impartiality both in its subjective component and in its objective component.
58      As regards the subjective component, in the first place, the applicant claims that she stated in the first and second complaints that the line manager in question wanted to ‘get rid of her’. In particular, the line manager in question had a personal interest in placing the applicant at a disadvantage, since, through her complaints, the latter had drawn the attention of Eulex Kosovo’s management further to that line manager, when she was already the subject of an internal investigation for corruption.
59      In the second place, the applicant submits that the fact that she should have, on the advice of the Director of the Human Resources unit of Eulex Kosovo, objected orally, during the 2016 internal competition interview, to the presence of the line manager in question before the selection board chaired by the latter proves that the line manager in question could not be subjectively impartial during that interview. The same applies to another member of the selection board, namely the Deputy Head of the Executive Division, who, working in close collaboration with the line manager in question, could have been influenced by her during the interview.
60      In the third place, the applicant claims that a third member of the selection board, namely the President of the Assembly of Eulex Judges, publicly stated on the website ‘medium.com’ that he had participated, on two occasions, in competition selection boards where the other two members of the board had already agreed in advance on the prosecutors who would not be selected, including, in particular, the prosecutors who had refused to bend to pressure from the Eulex Kosovo management to prosecute overtly political cases, and had adjusted the marking grids. One of the excluded prosecutors is, according to the applicant, herself.
61      Lastly, the applicant submits that the handwritten annotations of the selection board members during the 2016 internal competition interview which were submitted by Eulex Kosovo in its application to set aside, support the lack of subjective impartiality of the line manager in question and the irregularity of that interview, in particular as regards the assessment of her response to the question enabling evaluation of the criterion relating to the ‘Required competency, based on the Job Description [and]
Integrity’, for
which she obtained the eliminatory mark of 0.
62      As regards the objective component, the applicant claims, in essence, that the involvement of the line manager in question in the adoption of the acts covered by the first and second complaints could give rise to a legitimate doubt as to her impartiality as chairperson of the selection board in the 2016 internal competition.
–       The alleged lack of subjective impartiality
63      At the outset, it should be noted that, according to settled case-law, the institutions, bodies, offices and agencies of the European Union must comply with both components of the requirement of impartiality, which are, first, subjective impartiality, by virtue of which no member of the institution concerned may show bias or personal prejudice, and, second, objective impartiality, under which there must be sufficient guarantees to exclude any legitimate doubt as to possible bias on the part of that institution, body, office or agency. Furthermore, in order to show that the organisation of an administrative procedure does not ensure sufficient guarantees to exclude any legitimate doubt as to possible bias, it is not necessary for the lack of impartiality to be proven. It is sufficient for a legitimate doubt to arise which cannot be dispelled (see, by analogy, judgment of 11 January 2024, Hamers v Cedefop, C‑111/22 P, not published, EU:C:2024:5, paragraph 47 and the case-law cited).
64      As regards subjective impartiality, this is presumed in the absence of evidence to the contrary (see, by analogy, judgment of 20 October 2021, Kerstens v Commission, T‑220/20, EU:T:2021:716, paragraph 35 and the case-law cited).
65      In that respect, the involvement of a member of a competition selection board in assessing a candidate who works or has worked in the same unit or directorate as that member does not in itself mean that his or her independence and therefore his or her impartiality will be undermined (see, by analogy, judgment of 11 July 2012, AI v Court of Justice, F‑85/10, EU:F:2012:97, paragraph 81). It is only where it is apparent, on the basis of objective, relevant and consistent evidence, that one of the members of the selection board has a conflict of interests in the sense that he or she has, directly or indirectly, a personal interest in acting to the advantage or disadvantage of one of the candidates, that the obligation of impartiality, as enshrined in Article 41 of the Charter, requires that he or she be unable to express his or her opinion on the merits of that candidate (see, by analogy, order of 30 November 2015, O’Riain v Commission, F‑104/14, EU:F:2015:143, paragraph 43 and the case-law cited).
66      In the present case, the applicant has not adduced, in support of her claims, objective, relevant and consistent evidence capable of demonstrating that the line manager in question had, directly or indirectly, a personal interest in placing her at a disadvantage.
67      First, the applicant puts forward only speculations as to the fact that that line manager wanted to ‘get rid of her’, on account of the first and second complaints, which had been upheld.
68      In the first place, the first 2014 PER contains negative comments with regard to the applicant (see paragraph 6 above). However, those comments, made more than two years prior to the meeting of 19 July 2016, do not, in themselves, support the conclusion that the line manager in question failed to observe her duty of impartiality during that interview. In particular, they are not sufficient to demonstrate that the objective of the line manager in question was to place the applicant at a disadvantage during the internal competition.
69      Moreover, however negative they may be, those comments remain within the limits of the wide discretion of any reporting officer and cannot be regarded as going beyond the normal course of an employment relationship.
70      In addition, the second 2014 PER, replacing the one that was annulled, contains positive comments with regard to the applicant, which show that the line manager in question was able to reconsider her initial position and favourably assess the applicant’s work to the point of proposing the renewal of her contract, which, moreover, the applicant does not dispute.
71      Furthermore, it should be noted that the 2016 PER also contains positive comments with regard to the applicant and that, on the basis of those comments, the line manager in question recommended the renewal of her contract less than three months prior to the interview of 19 July 2016. That factor, subsequent to the first 2014 PER, renders even less credible the assertion that the line manager had, directly or indirectly, a personal interest in placing the applicant at a disadvantage, which prevented her from making an objective assessment of the applicant’s merits at that interview.
72      In the second place, the fact that the line manager in question chaired the selection board for the 2014 internal competition, at the end of which the applicant was ranked last in the final classification, does not in any way show that her failure was orchestrated by that line manager. In that regard, it should be recalled, as it was by Eulex Kosovo, that the 2014 internal competition was annulled on the ground of a procedural defect relating to the presence, on the same selection board, of two members having the same nationality, and not for reasons relating to the attitude of those members, let alone that of the line manager in question towards the applicant. Moreover, the latter does not adduce any other evidence relating to that competition which casts doubt on the impartiality of the line manager in question.
73      In the third place, the claim that, in essence, the line manager in question might have held
a grudge against the applicant for having tarnished her image with the management of Eulex Kosovo when she was already the subject of an internal corruption investigation is merely a personal opinion which, in the absence of any concrete evidence, cannot in any way be accepted by the General Court. Furthermore, even if that line manager had been the subject of such an investigation, the applicant is not in a position to explain to what extent the facts which gave rise to that investigation were linked to the first and second complaints, which related exclusively to the first 2014 PER and the 2014 internal competition. On the contrary, the applicant herself acknowledges in paragraph 74 of her observations on the application to set aside that she ‘had not made any allegations which related to the accusations of corruption against [the line manager in question]’.
74      Lastly, it should be noted that the applicant has also been unable to prove that the line manager in question had unduly influenced the Deputy Head of the Executive Division to her detriment. At most, she merely provides her personal view of the reporting relationships within the Executive Division, without presenting the slightest evidence capable of casting doubt on the impartiality of that deputy head in the 2016 internal competition.
75      Secondly, the line manager in question cannot be validly criticised for having been biased on the ground that the applicant objected to her presence on the selection board of the 2016 internal competition at the time of the interview.
76      At the outset, it should be noted that it is in no way apparent from the file before the Court that the Director of Eulex Kosovo’s Human Resources unit ‘advised’ the applicant to raise her objections during the interview. On the contrary, as is apparent from the statement which the applicant read before the selection board at the time of the interview, in Annex C.2 to the observations on the application to set aside, that director had merely suggested that she should submit her arguments in writing, which, moreover, she did by means of an email sent on 19 July 2016 at 11.31. In response to that email, that director wrote to the applicant, on the same day at 12.11, that there would be no change in the selection board and that she could subsequently lodge a complaint in order to challenge the composition of the latter, which, moreover, she did by means of the third complaint. Thus, in so far as there was no justification for the need for the applicant to present, at the time of the interview, objections to the presence of the line manager in question on the selection board, she cannot complain of a situation which she herself created, let alone infer from this that that situation could have undermined the impartiality of the selection board.
77      Furthermore, even if the applicant’s objections could have created a degree of irritation on the part of the line manager in question, that possibility does not mean, as such and without any other circumstance, that the latter was no longer in a position to assess her merits objectively (see, by analogy, judgment of 15 June 2022, QI v Commission, T‑122/21, not published, EU:T:2022:361, paragraph 72 and the case-law cited). It must be stated that the applicant is not in a position to prove, in the present case, that the irritation of the line manager towards her, even if it were established, could have affected the latter’s judgment on the applicant’s performance in the interview.
78      Thirdly, the article published by the President of the Assembly of Eulex Judges on the website ‘medium.com’ does not mention either the applicant or the 2016 internal competition. It refers at most to the premeditated exclusion of a public prosecutor of the United Kingdom of Great Britain and Northern Ireland, without, however, specifying the date on which that circumstance arose. In addition, while that article states that that alleged practice of manipulating the results of the interviews concerned prosecutors who refused to investigate overtly political cases, the applicant does not prove, or even claim, that that was her case.
79      Fourth, the handwritten annotations of the selection board members contain only their comments on the content of the answers provided by the applicant during the interview and do not reveal any personal prejudice or bias which could legitimately raise doubts as to their impartiality with regard to the applicant. Nor do they show, as the applicant maintains, that she answered the question on ‘integrity’ correctly, and that therefore that the mark of 0 is an indication of the selection board’s lack of impartiality. Those annotations prove, at most, that she answered that question, but not that her answer was considered correct by the selection board. In that context, a candidate’s belief that he or she correctly answered the questions asked during the interview cannot constitute irrefutable evidence of a lack of impartiality on the part of the selection board during the interview (see, by analogy, judgment of 21 December 2022, OM v Commission, T‑118/22, not published, EU:T:2022:849, paragraph 78 and the case-law cited). Accordingly, the argument based on those annotations must be rejected, without there being any need to adopt the measure of organisation of procedure requested by the applicant in the observations on the application to set aside, since the Court considers that it has sufficient information from the documents in the file.
80      In the light of the foregoing considerations, the applicant’s arguments concerning the alleged lack of subjective impartiality of the line manager in question must be rejected.
–       The alleged lack of objective impartiality
81      As regards objective impartiality, it is settled case-law that prior knowledge of the facts by those called upon to take part in the adoption of a judicial or administrative decision does not, in itself, constitute a circumstance capable of vitiating that decision by a procedural defect taking the form of a lack of impartiality. Such prior knowledge is sometimes inevitable in view of a professional activity carried out previously or in parallel by the persons concerned. In order to prove that that principle has been infringed, it is necessary to establish whether, in the particular case, there is an objective factor, such as a conflict of interests on the part of officials and other servants acting on behalf of the institutions, bodies, offices and agencies of the European Union, capable of giving rise to a legitimate doubt, in the minds of third parties, as to the impartiality of the procedure in question (see, by analogy, judgment of 11 January 2024, Hamers v Cedefop, C‑111/22 P, not published, EU:C:2024:5, paragraph 48 and the case-law cited).
82      In the present case, the mere fact that the line manager in question, two years before the 2016 internal competition and in the performance of her professional activity, chaired another selection board in a competition in which the applicant had taken part and assessed the latter’s merits in a PER is not in itself sufficient to give rise to a legitimate doubt, in the minds of third parties, as to her impartiality. Furthermore, as has been stated in paragraphs 66 to 74 above, the applicant has not been able to adduce the slightest evidence of the existence of a conflict of interests on the part of that line manager resulting from her involvement in the adoption of the acts which are the subject of the first and second complaints.
83      In the light of the foregoing considerations, it must be concluded that Eulex Kosovo did not infringe the principle of impartiality either in its subjective component or in its objective component by leaving the line manager in question to chair the selection board conducting the applicant’s interview in the 2016 internal competition.
84      The second and third pleas must therefore be rejected as unfounded.
The first plea, alleging procedural irregularities in the 2016 internal competition
85      The applicant submits, in essence, that Eulex Kosovo infringed Articles 4 and 6 of the SOP on the reconfiguration and Articles 5, and 7.1 to 7.3 of the SOP on Staff Selection, in that, first of all, the Director of the Human Resources unit of Eulex Kosovo should have verified the composition of the selection board in the light of existing or potential conflicts of interests and should have envisaged changes if necessary. Furthermore, the composition of the selection board should have been communicated to her in advance, which would have enabled her to raise her objections to it in writing rather than being obliged to do so orally during the interview with the selection board. Finally, according to the applicant, contrary to what Eulex Kosovo claimed in the application to set aside, it is not apparent from Article 2.1 of Annex XIII to the 2016 OPLAN that the line manager in question, was required, as Head of the Executive Division, to chair the selection board, since that article specifies that the Head of the Executive Division can be replaced by a delegate.
86      Eulex Kosovo disputes those arguments.
87      The General Court notes that, by her first plea in law, the applicant seeks to establish that, if she had known in advance the composition of the selection board, she could have challenged the impartiality of the line manager in question earlier and obtained that line manager’s exclusion from the selection board conducting her interview. As ruled in paragraph 83 above, Eulex Kosovo did not infringe the principle of impartiality by allowing that line manager to chair the selection board conducting the applicant’s interview in the 2016 internal competition.
88      Therefore, even if they were established, those procedural irregularities would not, in themselves, be such as to invalidate the contested decisions. Nor, in the present case, can those irregularities give rise to a right to compensation, since none of the heads of damage alleged by the applicant (see paragraph 106 above) derive directly from those irregularities.
89      Consequently, the first plea must be rejected as ineffective.
The fourth plea, alleging infringement of Articles 31 and 41 of the Charter in connection with the driving tests
90      The applicant submits, in essence, that, although Eulex Kosovo was aware of the injury affecting her right hand, the physical limitation resulting from it and the fact that her ‘disability’ was recognised in her country of origin, Eulex Kosovo repeatedly asked her to take the driving test for a four-wheel-drive vehicle, which she perceived as harassment towards her. In that respect, the applicant states that the call for applications for the post of prosecutor in which she participated required only a ‘readiness to travel’ and not the ability to drive and that, according to the decision memorandum of the Head of Eulex Kosovo of 26 January 2011 on a ‘proposal for [the] introduction of [an] assessment of driving skills’, the matter should, after the second time she failed the driving test, have been referred to the Head of Eulex Kosovo in order to determine whether it was essential for the her to drive, which did not occur in the present case.
91      Eulex Kosovo disputes those arguments.
92      The General Court notes that, by her fourth plea, the applicant seeks, in essence, a declaration that she was subjected to harassment by Eulex Kosovo, in so far as she was asked, on several occasions and despite the medically attested injury to her right hand, to take a driving test, which she has always failed.
93      Harassment is defined in Article 2.6 of the Code of Conduct as ‘any act or conduct including spoken words, gestures or the production, display or circulation of written words, pictures or other material if the action or conduct is unwelcome to the employee and could reasonably be regarded as offensive, humiliating or intimidating’. The first paragraph of Article 7 of that code provides that ‘it is the right and obligation of all staff members to report cases of malpractice, misconduct, incompetence and criminal acts’.
94      The second and third paragraphs of Article 7 of that code also describe the procedure for reporting any misconduct within the mission. This procedure begins with a written complaint from the staff member to his direct supervisor or a member of the management of the mission who is authorised to handle the case. Articles 8.3 to 8.5 of the Code of Conduct explain the conduct of the internal investigation procedure into cases of misconduct after receipt of the complaint. Article 8.4.1 of that code provides, inter alia, that ‘[upon suspicion that] the reported activity [constitutes] a breach of [the Code of Conduct, the SOP] and/or other directives and orders, the [Deputy Head of Mission] will instruct the [competent unit] to conduct an investigation in relation to the alleged violations’.
95      In addition, it should be recalled that, according to the case-law, it is for the person who considers himself or herself to have been subject to harassment to submit a request to the administration seeking that such conduct be ceased. It is only the rejection of that request which would constitute a decision adversely affecting the person concerned, which he or she could challenge, having followed the applicable administrative procedure, before the EU judicature (see, by analogy, order of 27 February 2019, Miserini Johansson v EIB, T‑870/16, not published, EU:T:2019:120, paragraph 25, and judgment of 30 January 2020, PV v Commission, T‑786/16 and T‑224/18, not published, EU:T:2020:17, paragraph 154 and the case-law cited).
96      It is in no way apparent from the documents before the Court that the applicant ever initiated a procedure in respect of one or other member of Eulex Kosovo seeking to establish the existence of such harassment against her. It is in no way apparent from the exchanges which she had with the Human Resources unit concerning the problems affecting her right hand and the driving tests that she requested that such a procedure be initiated or that she made the slightest reference to acts of harassment against a specific person.
97      It follows that the applicant cannot ask the Court, even on the basis of Article 272 TFEU, to take the place of Eulex Kosovo in order to conduct an investigation and to establish the existence of harassment which she allegedly suffered in connection with the driving tests.
98      In addition and in any event, the General Court notes, like Eulex Kosovo, that, first, the call for applications expressly laid down a requirement for Eulex Kosovo’s staff to be fit to drive a vehicle and that, second, the applicant has not demonstrated, to the requisite legal standard, that the problems in her right hand totally impeded her from driving a vehicle.
99      In the first place, it is apparent from the call for applications, in particular from the section entitled ‘Essential documents for the selected applicants’, that those applicants had to have a valid Category B driving licence and be ‘able to drive any [four]-wheel drive vehicle’. It is evident that the reference to ability to drive necessarily implies that candidates are capable of taking the steering-wheel of such a vehicle and not only that they have a
‘readiness
to travel’ as the applicant claims. That interpretation is confirmed by the 2014 OPLAN, which expressly provides, in Article 5.5 of Annex XI thereto, that Eulex Kosovo may, at any time, subject members of staff to assessments of their driving skills and that the members in question who do not have such skills are to be regarded as having committed a breach of contract which may lead to the termination of the employment relationship.
100    In the second place, Eulex Kosovo also did not disregard the decision memorandum of 26 January 2011 relating to a ‘proposal for [the] introduction of [an] assessment of driving skills’. The applicant’s situation was indeed brought before the Head of Eulex Kosovo, who, by letter of 12 August 2014, asked her to take once again the driving test, before deciding whether the repeated failure to pass that examination could lead to the termination of her employment contract. In addition, it is not apparent from the file before the General Court that the applicant ever formally requested the Head of Eulex Kosovo to exempt her from the driving test.
101    Lastly, it follows from a thorough reading of the medical certificates produced by the applicant that, although she was indeed suffering from pain to the right wrist which could have been accentuated when driving a vehicle, that problem did not constitute a ‘disability’ so serious that she was totally impeded from driving a vehicle. Such a total impediment was likewise not apparent from the form completed by the applicant for the call for applications, in which she merely stated that she was suffering from ‘repetitive strain injury in my right wrist where regular breaks should suffice’, without specifying whether that problem completely impeded her from driving a vehicle.
102    In the light of all those considerations, it must be concluded that Eulex Kosovo’s repeated requests to the applicant to take the driving test are not vitiated by any illegality.
103    The fourth plea must therefore be rejected as unfounded.
Conclusion on the four pleas in law
104    In the light of the examination of the four pleas above, it must be concluded that, since the second, third and fourth pleas are unfounded and the first plea is ineffective, the first and the third heads of claim raised in the main action by means of which the applicant claimed that the General Court should, respectively, ‘find that Eulex Kosovo, on the one hand, had breached its contractual obligations in the performance of the contract and in the application of the OPLAN and the Concept of Operations, the SOP [on the reconfiguration] and the SOP [on] Staff Selection, and, on the other, had infringed the contractual principles of fairness and of good faith, and that therefore she was entitled to compensation’ and ‘find that the contested decisions were unlawful, owing to the lack of impartiality of the selection board, the conflict of interests of that selection board’s chairperson and the principles of staff selection’ (judgment by default, paragraph 18), must be rejected.
105    Furthermore, in so far as, first, as noted in paragraph 46 above, the contested decisions and the action in the main proceedings form part of a genuine contractual context (see, to that effect, judgment of 13 July 2022, JF v EUCAP Somalia, T‑194/20, EU:T:2022:454, paragraphs 42 and 47) and as, second, the applicant has not put forward any evidence capable of proving that the legal relationships between the parties in question were also of a non-contractual nature, the second head of claim raised in that action, by which the applicant requested the General Court to ‘find that Eulex Kosovo had failed to fulfil its non-contractual obligations vis-a-vis the applicant and that therefore she was entitled to compensation’ (judgment by default, paragraph 18), must also be rejected.
The heads of damage relied on
106    The applicant claims, first, that the contested decisions caused her material damage equivalent to 19 months’ gross salary, to which the daily subsistence allowance and the salary increase are added, corresponding to the loss of income that she suffered during the period between the date of non-renewal of her contract and the date of expiry of Eulex Kosovo’s mandate, namely 14 June 2018. She also claims, secondly, that those decisions, in the same way as the repeated requests that were made to her to take the driving test, caused harm to her professional reputation, personality, dignity and psychological balance and caused her non-material damage assessed ex æquo et bono at EUR 50 000.
107    Eulex Kosovo disputes those arguments.
108    In that regard, first, it should be noted that the examination of the second, third and fourth pleas in law has not revealed any unlawfulness that would give rise to the contractual or non-contractual liability of Eulex Kosovo and justify awarding compensation for the damage referred to in paragraph 106 above. Secondly, as noted in paragraph 88 above, the alleged procedural irregularities raised in the first plea in law cannot give rise, in the present case, to a right to compensation, since none of the heads of damage relied on by the applicant derive directly from those irregularities. Consequently, one of the conditions for establishing the contractual or non-contractual liability of Eulex Kosovo, namely the existence of a causal link between the damage allegedly suffered and the procedural irregularities that Eulex Kosovo is alleged to have committed, is not satisfied.
109    Consequently, the Court must also reject the fourth head of claim raised in the main action, by which the applicant requested the General Court to ‘order Eulex Kosovo to pay her, first, in respect of material damage, a sum corresponding to 19 months’ gross salary, to which the daily subsistence allowance and the salary increase were to be added, and, secondly, in respect of non-material damage, a sum provisionally assessed ex æquo et bono at EUR 50 000’ (judgment by default, paragraph 18).
110    In the light of all the foregoing, the application to set aside must be upheld and, consequently, the judgment by default must be set aside and the action in the main proceedings must be dismissed in its entirety.
Costs
111    Under Article 219 of the Rules of Procedure (now Article 195 of the Rules of Procedure), it is for the General Court, when it rules after the Court of Justice has set the judgment aside and referred the case back to the General Court, to decide on the costs relating, first, to the proceedings instituted before it and, second, to the proceedings on the appeal before the Court of Justice. Furthermore, according to Article 134(1) and (3) 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, and the parties are to bear their own costs where each party succeeds on some and fails on other heads.
112    In the first place, since Eulex Kosovo and the applicant have ultimately been unsuccessful, one on admissibility and the other on the merits of the action in the main proceedings, each party must be ordered to bear its own costs in Cases T‑242/17 and T‑242/17 RENV-OP (see, to that effect, judgment of 26 September 2017, Quimitécnica.com and de Mello v Commission, T‑564/10 RENV, not published, EU:T:2017:666, paragraph 90), including those relating to the procedure for the stay of execution of the judgment by default that gave rise to the order of 29 March 2023, SC v Eulex Kosovo (T‑242/17 RENV-OP, not published, EU:T:2023:193).
113    In the second place, since Eulex Kosovo has been unsuccessful both in the appeal proceedings before the Court of Justice and in the procedure by default before the General Court, Eulex Kosovo must be ordered to bear its own costs and to pay those incurred by the applicant in Case T‑242/17 RENV and in Case C‑730/18 P, in accordance with the form of order sought by the latter.
114    The applicant’s claim concerning the increase of interest calculated at the rate of 8% must be rejected, since such a claim is premature and can be decided, where appropriate, only in the course of the proceedings for taxation of costs (see, to that effect, judgment of 25 October 2018, KF v SatCen, T‑286/15, EU:T:2018:718, paragraph 264).
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1.      Sets aside the judgment of 19 October 2022, SC v Eulex Kosovo (T‑242/17 RENV);
2.      Dismisses the action registered under Case number T‑242/17;
3.      Orders Eulex Kosovo and SC to bear their own costs relating to Cases T‑242/17 and T‑242/17 RENV-OP;
4.      Orders Eulex Kosovo to bear its own costs and to pay those incurred by SC relating to Cases T‑242/17 RENV and C‑730/18 P.
Svenningsen
Mac Eochaidh
Stancu
Delivered in open court in Luxembourg on 6 November 2024.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.