ORDER OF THE GENERAL COURT (Tenth Chamber)
9 February 2023 (*)
(Action for damages – Contract for technical assistance for support to Bangsamoro transition (Subatra) – Commission’s request to have the applicant replaced as expert – Termination of the contract between the successful tenderer and the applicant – Non-contractual liability – Sufficiently serious breach of a rule of law intended to confer rights on individuals – Causal link – Action manifestly lacking any foundation in law)
In Case T‑778/21,
Rommert Folkertsma, residing in Zierikzee (Netherlands), represented by L. Levi and P. Baudoux, lawyers,
applicant,
v
European Commission,
represented by C. Giolito and T. Van Noyen, acting as Agents,
defendant,
THE GENERAL COURT (Tenth Chamber),
composed of O. Porchia (Rapporteur), President, M. Jaeger and S. Verschuur, Judges,
Registrar: E. Coulon,
having regard to the written part of the procedure,
makes the following
Order
1        By his action based on Article 268 TFEU, the applicant, Mr Rommert Folkertsma, seeks compensation for the financial and non-material damage which he claims to have suffered following the European Commission’s request to have him replaced as an expert in the context of a European Union technical assistance project in support of the Republic of the Philippines.
Background to the dispute
2        On 1 July 2020, the European Union, represented by the Commission, and the Government of the Republic of the Philippines entered into a financing agreement entitled ‘Support to Bangsamoro transition (Subatra; “the Subatra project”)’ to promote sustainable peace and development in the southern Philippines.
3        For the purpose of implementing the Subatra project, the European Union, represented by the Commission, concluded, on 1 August 2020, on behalf of and for the account of the Government of the Republic of the Philippines, service contract ACA/2020/417-948, with A, a company incorporated under German law, entitled ‘Technical assistance to Bangsamoro Transition’ (‘the main contract’).
4        The main contract contains, by order of precedence, the special conditions of that contract (‘the special conditions’) and a series of annexes, including Annex I containing the general conditions governing that contract (‘the general conditions’) and Annex II containing the terms of reference with their own annexes (‘the terms of reference’).
5        Under Article 19 of the special conditions, the implementation period of the main contract was 54 months.
6        In addition, Article 40 of the special conditions confers exclusive jurisdiction on the courts of Brussels (Belgium) for the settlement of all disputes arising from the main contract, or which relate to it, and which cannot be settled amicably.
7        Section 6.1.1 of the terms of reference gives details of the profile of the experts who must be recruited to carry out the tasks set out in the main contract. The appointment of three experts is provided for therein, namely a governance expert, appointed team leader, a public administration expert and a Parliament expert. That section also states that ‘all experts must be independent and free from conflicts of interest in the responsibilities they take on’.
8        Furthermore, Article 16(6) of the general conditions specifies that ‘no recruitment of an expert by the contractor can create contractual relations between the expert and the contracting authority’.
9        Lastly, Article 17 of the general conditions describes the procedure governing replacement of staff. Thus, Article 17(2) sets out that ‘in the course of performance, the contracting authority can order an agreed staff to be replaced’ and that ‘this shall be done on the basis of a written and justified request to which the contractor and the agreed staff have had the opportunity to provide observations’.
10      For the purpose of implementing the main contract, on 1 August 2020, A signed a service contract with the applicant by which the latter was recruited as team leader of the governance expert team (‘the service contract’). The service contract includes the special conditions, the general conditions and the terms of reference of the main contract which form an integral part thereof under Article 1 of the service contract.
11      Before signing the service contract, the applicant cancelled his contract, which was ongoing at that time, concluded under the United Nations Development Programme (UNDP) (‘the UNDP contract’).
12      Article 2(1) of the service contract provided that the initial duration of that contract was to run from 1 August 2020 to 31 January 2025.
13      In addition, Article 9(2) of the service contract set out that ‘the cases in which [A] may terminate this contract with the Contractor with immediate effect and with the corresponding reduction of duties and remuneration of the Contractor, include but are not limited to the following: … the Contracting Authority or a client requests [A] to replace or withdraw the Contractor for whatever reason or expresses serious discontent with the services provided by the Contractor’.
14      Lastly, Article 10(1) of the service contract provides that ‘this contract is based on German law’ and that ‘therefore the court to appeal to in the case of a dispute concerning this contract will be the court of the location of the headquarters of [A]’.
15      Some time after the start of the implementation of the Subatra project, the Commission received several complaints regarding the applicant from the beneficiaries of the project.
16      By email of 27 November 2020, receipt of which was acknowledged by A on the same day, the Commission informed A of those complaints and asked it for suggestions as to how these should be addressed.
17      At a meeting held on 3 December 2020, the Commission and A examined those complaints. On the same day, immediately after that meeting, A informed the applicant to that effect during an online conversation and a subsequent one-and-a-half-hour interview via Skype with the director and the coordinator of the Subatra project. During that interview, A set out the complaints, listened to the applicant’s views with regard to those complaints and discussed with him how to improve the situation.
18      By email of the same date, A confirmed to the Commission that it ‘[would] take all measures to clarify the issue with [the applicant] and improve the situation’ and that it would provide feedback the following week.
19      By email of 4 December 2020, the Commission emphasised to A that those complaints had ‘to be addressed very quickly, in one way or another’, since ‘regaining the trust of the beneficiary and key stakeholders [was] crucial at this stage and of paramount importance for the success of this programme’.
20      On 11 December 2020, the Commission sent an email to A, to which A replied, with the applicant in blind copy. In that email, A stated that it had ‘had many meetings and discussions … since [it had received] this very alarming feedback’. It also specified that ‘a clarifying meeting [had taken place] between the [applicant] and the project director’.
21      On 14 December 2020, a meeting was held between the EU Delegation to the Philippines and A. During that meeting, A informed the Commission of the discussions which it had had with the applicant, who had submitted his observations on the complaints. At that meeting, A and the Commission agreed that it was in the best interest of the project to replace the applicant as team leader.
22      By email of the same date, sent to the applicant immediately after the closure of that meeting, A informed the applicant of the outcome of that meeting, in order to enable him to ‘prepare everything on [his] end’, and invited him to talk on Skype if he so wished. In particular, by that email, A informed the applicant that the EU Delegation would be sending it an official letter requesting it to replace the applicant as team leader of the Subatra project.
23      By letter of 15 December 2020, the Commission formally requested A to replace the applicant (‘the request for replacement’), setting out the reasons why it took the view that it was in the interest of the programme for it to request an appropriate replacement for the applicant.
24      By letter of 16 December 2020, A’s director informed the applicant that, as had been announced to him on 14 December 2020 (see paragraph 22 above), A had received an official letter from the Delegation of the European Union to the Philippines requesting it to replace him as team leader. Consequently, by that letter, the service contract was terminated, with immediate effect, in accordance with Article 9(2) of that contract (see paragraph 13 above).
25      The applicant requested the Commission, via its EU Delegation to the Philippines, to hold a bilateral meeting, which took place on 18 December 2020. During that meeting, according to the Commission, the applicant made the same observations as those which he had previously raised with A and which A had shared with the Commission.
26      Subsequently, in accordance with Article 10(1) of the service contract (see paragraph 14 above), the applicant brought an action before the competent German court in order to dispute the nature of that contract and to determine the exact date on which it was terminated. The applicant also claimed compensation due to the breach of certain provisions of the service contract. On 21 April 2021, the parties concluded a settlement agreement (‘the settlement agreement’), by which they agreed that the service contract had come to an end on 31 March 2021. In addition, A undertook to pay the applicant financial compensation intended to put an end to all the reciprocal claims arising from the legal relationship between the parties and from its termination, whether known or unknown, and on whatever legal basis.
27      By letter of 8 January 2021, A proposed a new team leader, whom the Commission approved on 14 January 2021.
28      On 24 August 2021, the Commission received a letter from the applicant’s lawyers, in which those lawyers stated, first of all, that the applicant had been dismissed by A on 16 December 2020 and that he had not had the opportunity to submit his observations in accordance with Article 17(2) of the general conditions. Next, the lawyers stated that the applicant was not in a position to understand the reasons for his replacement and that he contested all of the allegations concerning him. Lastly, the lawyers pointed out that the EU Delegation to the Philippines had engaged in wrongful conduct causing serious reputational and financial damage to the applicant.
29      The Commission acknowledged receipt of that letter on 13 September 2021 and consulted A. In its reply, A, inter alia, informed the Commission that the applicant had initiated legal proceedings against it in Germany, but that a settlement agreement had been concluded (see paragraph 26 above).
30      In its reply of 5 October 2021 (‘the letter of 5 October 2021’) to the applicant’s lawyers, the Commission, inter alia, made clear that there was no contractual relationship between itself and the applicant, that the applicant’s dismissal was attributable to A, that it was for A to give the applicant the opportunity to submit his observations on the request for replacement and that, according to the information provided by A to the Commission, the applicant had had ample opportunity to submit his observations on the allegations made against him. Lastly, as regards the claim for damages, the Commission stated that, since A and the applicant had already concluded a settlement agreement, it had decided not to call into question the request for replacement and not to compensate the applicant.
31      By letters of 2 and 25 November 2021 respectively, the applicant’s lawyer and the Commission each maintained their position.
Forms of order sought
32      The applicant claims that the Court should:
–        declare the Commission to be non-contractually liable and order it, either principally or in the alternative jointly and severally with A, to pay him compensation for the damage suffered;
–        if need be, annul the letter of 5 October 2021;
–        order the Commission to pay all the costs, even in the event that the action is dismissed.
33      The Commission contends that the Court should:
–        dismiss the action as partly inadmissible and partly unfounded;
–        order the applicant to pay the costs.
Law
34      Under Article 126 of the Rules of Procedure of the General Court, where it is clear that the Court has no jurisdiction to hear and determine an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may decide to give a decision by reasoned order without taking further steps in the proceedings.
35      In the present case, the Court considers that it has sufficient information from the documents in the file and decides, pursuant to that article, to give a decision without taking further steps in the proceedings.
The request for annulment of the letter of 5 October 2021
36      The Commission expresses doubts as to the admissibility of certain parts of the action.
37      According to the Commission, the formulation ‘if need be’ in the second head of claim (see paragraph 32, second indent, above) would suggest that the applicant is first of all seeking compensation but fails to explain what the applicant seeks to obtain with the requested annulment by means of that formulation.
38      In the present case, it should be noted, first, that the letter of 5 October 2021 rejects a claim for damages (see paragraph 30 above) and, secondly, that, in the reply, the applicant makes it clear that his action seeks ‘only’ to engage the Commission’s non-contractual liability and, therefore, to request compensation for damage allegedly suffered.
39      In those circumstances, the present action must be regarded as seeking compensation for the damage which the applicant claims to have suffered as a result of the Commission’s actions.
The claim for damages
40      As a preliminary point, it should be borne in mind that the second paragraph of Article 340 TFEU sets out that, in the case of non-contractual liability, the European Union must, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.
41      According to settled case-law, in order for the European Union to incur non-contractual liability, within the meaning of the provision referred to in paragraph 40 above, a number of conditions must be satisfied: the institution’s conduct must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct and the damage pleaded (see order of 14 November 2018, Spinoit
v Commission and Others, T‑711/17, not published, EU:T:2018:803, paragraph 51 and the case-law cited).
42      Where any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions for such liability (see judgment of 8 June 2022, EMCS v EUAA, T‑621/20, not published, EU:T:2022:342, paragraph 102 and the case-law cited). Furthermore, the Court is not obliged to examine those conditions in a particular order (judgment of 9 September 1999, Lucaccioni v Commission, C‑257/98 P, EU:C:1999:402, paragraph 13).
The allegedly unlawful conduct of the Commission
43      With regard to the condition relating to the unlawfulness of the alleged conduct of the institution or body concerned, the case-law requires there to be a sufficiently serious breach of a rule of law intended to confer rights on individuals (see, to that effect, judgment of 4 July 2000, Bergaderm and Goupil v Commission, C‑352/98 P, EU:C:2000:361, paragraph 42).
44      In the present case, the applicant criticises the Commission for breaching, as the contracting authority in the Subatra project, his right to be heard, the obligation to state reasons and its duty of diligence in the staff replacement procedure.
45      In the first place, as regards the alleged breach of the right to be heard, the applicant submits, in essence, that the Commission failed to ensure that he had the opportunity to submit his observations concerning the decision to replace him before that decision was adopted. Had the applicant been heard, he could have called the replacement decision into question. In so doing, the Commission infringed, in a sufficiently serious manner, Article 41(2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’), Article 17(2) of the general conditions and section 3.4.13 of the document entitled ‘Practical guide on contract procedures for European Union external action’ (‘the PRAG’). Furthermore, in that regard, the applicant states, in essence, that, even if the replacement decision had been adopted by A, since the Commission requested his replacement, it played an important part in his dismissal, with the result that, as the Court of Justice held in the judgment of 28 October 2021, Vialto Consulting v Commission (C‑650/19 P, EU:C:2021:879, paragraph 118), the Commission’s liability for breach of the right to be heard should be incurred in the present case.
46      In the reply, the applicant argues, first, that the wording of Article 17(2) of the general conditions does not provide that the duty to hear the ‘agreed staff’ (namely the applicant) lay with the ‘contractor’ (namely A). Secondly, in so far as there is no contract between the applicant and the Commission and the Commission (and not A) was under an obligation to hear the applicant before ordering his replacement, the Commission acted as an administrative authority vis-à-vis the applicant. Thirdly, in accordance with what was held by the Court in the judgment of 2 March 2022, VeriGraft v Eismea (T‑688/19, EU:T:2022:112, paragraph 62), even if a measure is adopted in the context of a contract, the obligations arising under Article 41 of the Charter are applicable.
47      In the second place, as regards the alleged breach of the obligation to state reasons, the applicant claims that the Commission did not state reasons for its request for replacement, and so infringed Article 41(2)(b) of the Charter and Article 17(2) of the general conditions. Since the Commission acted in its capacity as an administrative authority, it was obliged to state reasons for its request for replacement. However, the applicant did not receive any details of the complaints set out in that request and was therefore not in a position to understand the reasons for his sudden replacement.
48      In the third place, as regards the alleged breach of the duty of diligence, the applicant claims, in essence, that the Commission breached that duty inasmuch as it failed to establish that his replacement did not have qualifications and experience equivalent to his own, it failed to determine whether the replacement was not in a position of a conflict of interests and, in deciding to replace the applicant, it failed to take into account his personal situation. Those omissions, he submits, constitute a sufficiently serious breach of several provisions of the PRAG, such as section 3.4.13 (replacement of experts) and section 2.5.4 (conflict of interest), of section 6.1.1 of the terms of reference (conflict of interest) and of Article 61(1) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1).
49      The Commission disputes the applicant’s arguments.
50      First of all, it should be noted that the applicant criticises the Commission for breaching his right to be heard, the obligation to state reasons and the duty of diligence, relying, first, on Article 41 of the Charter and, secondly, on certain contractual provisions such as Article 17(2) of the general conditions and section 3.4.13 of the PRAG, as regards the right to be heard and the obligation to state reasons, and Article 17(3) of the general conditions, section 2.5.4 of the PRAG and section 6.1.1 of the terms of reference as regards the duty of diligence.
51      In this respect, it should be made clear that the factual context of the dispute arises from two separate contractual relationships. On the one hand, there is a contractual relationship between the European Union, represented by the Commission, and A. That contractual relationship is established by the main contract. On the other hand, there is a contractual relationship between A and the applicant. That contractual relationship is established by the service contract.
52      Furthermore, it is common ground between the parties that there is no contractual relationship between the applicant and the Commission. As has been noted in paragraph 8 above, Article 16(6) of the general conditions states that no recruitment of an expert by the contractor (A) can create contractual relations between the expert (the applicant) and the contracting authority (the Commission).
53      The procedure which led to the applicant’s replacement comprises two different measures, namely the request for replacement and the decision to terminate the service contract, which were adopted by two different legal persons and in the context of two distinct contractual relationships, the request for replacement being a measure adopted by the Commission in the context of the main contract and the termination decision, by contrast, being a measure of A coming within the scope of the service contract.
54      In particular, in this respect, it should be stated that the Commission has not adopted any decision to terminate the service contract. It confined itself, in accordance with Article 17(2) of the general conditions, to submitting the request for replacement to A. It was A which, by letter of 16 December 2020, acceded to that request by deciding to terminate the service contract, with immediate effect, in accordance with Article 9(2) of that contract.
55      In addition, it is important to point out in this regard that it follows from the wording of that provision (see paragraph 13 above) that A ‘may’ terminate the contract. It was therefore not obliged to do so and had a margin of discretion.
56      Accordingly, there is no decision adopted by the Commission with regard to the applicant. A terminated the service contract and adopted the decision to replace the applicant.
57      Consequently, the applicant’s arguments seek to claim, in essence, that it was by the request for replacement that the Commission breached the right to be heard, the obligation to state reasons and the duty of diligence, both in the light of certain contractual provisions and in the light of Article 41 of the Charter.
–       The Commission’s unlawful conduct in the light of the contractual provisions relied on by the applicant
58      With regard to the alleged breach of the right to be heard, of the obligation to state reasons and of the duty of diligence in the light of the contractual provisions referred to in paragraph 50 above, it should be noted that, in the absence of a contractual relationship between the applicant and the Commission, the applicant cannot rely on a breach of those provisions against the Commission.
59      Even assuming that there is a contractual relationship linking the applicant to the Commission and that the applicant may, under that contractual relationship, rely on those provisions against the Commission, their breach constitutes a contractual claim, which, in the absence of an arbitration clause within the meaning of Article 272 TFEU, does not fall within the jurisdiction of the Court (see, to that effect, judgment of 10 October 2019, Help – Hilfe zur Selbsthilfe v Commission, T‑335/17, not published, EU:T:2019:736, paragraph 85 and the case-law cited).
60      It is apparent from paragraph 58 above that the arguments alleging a breach of the right to be heard, of the obligation to state reasons and of the duty of diligence in the light of the contractual provisions relied on by the applicant must be rejected as manifestly lacking any foundation in law.
–       The Commission’s unlawful conduct in the light of Article 41 of the Charter
61      With regard to the alleged breach of the right to be heard, of the obligation to state reasons and of the duty of diligence in the light of Article 41 of the Charter, in the first place, it should be recalled that that article lays down the principle of sound administration, which includes, inter alia, the right of every person to be heard, the right of every person to have access to his or her file and the obligation of the administration to give reasons for its decisions.
62      It should also be noted that the principle of sound administration, in which the duty of diligence is inherent (see, to that effect, judgment of 16 December 2008, Masdar (UK)
v Commission, C‑47/07 P, EU:C:2008:726, paragraphs 92 and 93), constitutes a general principle of law which governs the actions of the EU institutions in the exercise of their administrative responsibilities (see, to that effect, judgment of 11 December 2013, EMA v Commission, T‑116/11, EU:T:2013:634, paragraph 245 and the case-law cited) and in their relations with the public (see, to that effect, judgment of 4 April 2017, Ombudsman v Staelen, C‑337/15 P, EU:C:2017:256, paragraph 34).
63      In the second place, it should be noted that, in the present case, the request for replacement was submitted by the Commission in the context of the contractual relationship between the European Union, represented by the Commission, and A (see paragraph 54 above). That request is based on the provisions of Article 17(2) of the general conditions, which expressly provide for the possibility of such a request.
64      It follows that, by submitting the request for replacement, the Commission acted solely within the framework of the rights and obligations arising from the contractual terms linking it to A. Moreover, that finding is confirmed by the fact that the applicant himself alleges that the Commission breached its obligations as a contracting authority.
65      Accordingly, the Commission acted as a contracting authority without having exercised prerogatives of a public authority (see, to that effect, orders of 14 November 2018, Bruel v Commission and Others, T‑793/17, not published, EU:T:2018:801, paragraph 57, and of 14 November 2018, Spinoit v Commission and Others, T‑711/17, not published, EU:T:2018:803, paragraph 58).
66      Therefore, by submitting the request for replacement, the Commission did not adopt a measure of a public authority the effects of which could have adversely affected the applicant within the meaning of Article 41 of the Charter. Accordingly, it was not subject, vis-à-vis the applicant, to the obligations arising from the general principle of sound administration, as relied on by the applicant (see, to that effect, orders of 14 November 2018, Bruel v Commission and Others, T‑793/17, not published, EU:T:2018:801, paragraph 57, and of 14 November 2018, Spinoit v Commission and Others, T‑711/17, not published, EU:T:2018:803, paragraph 58).
67      Furthermore, the applicant has not adduced any evidence to support a different conclusion. The applicant merely claims that although, by requesting to have him replaced, the Commission acted as a contracting authority towards A, it acted as an administrative authority vis-à-vis the applicant. However, such an argument, based on a dual legal classification of the request for replacement, cannot succeed. The same measure cannot be classified at the same time and in the light of one and the same legal subject (namely the applicant) as a measure of a contractual nature adopted by the Commission as a contracting authority and as a measure of a public authority adopted by the Commission as a public authority exercising public prerogatives.
68      Consequently, the applicant cannot criticise the Commission for having committed a sufficiently serious breach of the right to be heard, of the obligation to state reasons and of the duty of diligence in the light of Article 41 of the Charter.
69      That conclusion cannot be called into question by the applicant’s argument based on the judgment of 2 March 2022, VeriGraft
v Eismea (T‑688/19, EU:T:2022:112, paragraph 62), concerning compliance with the obligations under the Charter and the general principles of EU law incumbent on an EU institution with regard to ‘its contracting partners’ when performing a contract. As the Commission rightly states, a different conclusion would entail the risk of paralysing the actions of contracting authorities, since any contractual decision adopted in the implementation of public contracts could be the subject of an action for annulment brought by any third party affected by such a decision.
70      Similarly, the applicant cannot rely on the argument that the Commission’s involvement represented a decisive step in the process of his dismissal, with the result that the Commission may incur liability.
71      In that regard, it should be noted, as the Commission did, that the judgment of 28 October 2021, Vialto Consulting v Commission (C‑650/19 P, EU:C:2021:879), relied on by the applicant, concerns a programme subject to the principle of decentralised management with ex ante control, the implementation of which had been entrusted to an operating structure within the administration of the recipient country which had no contractual relationship with the Commission, which, however, retained final responsibility for general budget execution. In the present case, however, the request for replacement was submitted by the Commission in its capacity as a contracting authority in the context of its contractual relationship with A. Furthermore, as has been stated in paragraphs 65 and 66 above, the request for replacement was addressed solely to A, with the result that it did not produce any legal effects vis-à-vis the applicant arising from the exercise of public prerogatives.
72      Accordingly, the applicant’s arguments relating to the breach of the right to be heard, of the obligation to state reasons and of the duty of diligence in the light of Article 41 of the Charter must be rejected as manifestly lacking any foundation in law.
–       No breach of the right to be heard, of the obligation to state reasons or of the duty of diligence
73      In any event, it must be held that the three breaches alleged by the applicant against the Commission were not committed in the present case.
74      In the first place, with regard to the alleged breach of the right to be heard (see paragraphs 45 and 46 above), it is clear from the file before the Court that the Commission requested A to replace the applicant after having received several complaints concerning the applicant from the beneficiaries of the Subatra project. Those complaints were examined at the meeting of 3 December 2020 between the Commission and A. On the same day, A informed the applicant of the complaints and gave him the opportunity to make known his views during a one-and-a-half-hour interview via Skype (see paragraph 17 above). Moreover, as indicated in A’s email of 11 December 2020, there were, after 3 December 2020, numerous meetings and discussions between A and the applicant at which the latter had been heard. In particular, a meeting had taken place between the applicant and the project director (see paragraph 20 above).
75      In addition, it is apparent from the file before the Court that, at the meeting held on 14 December 2020 (see paragraph 21 above), A informed the Commission of the discussions that it had had with the applicant and of the observations that the applicant had made in relation to complaints submitted by the beneficiaries of the project. Moreover, A informed the applicant of the outcome of that meeting immediately after its conclusion in order to enable him to ‘prepare everything on [his] end’, inviting him to talk on Skype if he so wished (see paragraph 22 above). Therefore, contrary to what he claims, the applicant did have the opportunity effectively to submit his observations before receiving the letter from A terminating the contract.
76      Furthermore, the applicant also had the opportunity to submit his observations directly to the EU Delegation at the bilateral meeting which took place on 18 December 2020 (see paragraph 25 above). In that regard, however, the applicant argues that that opportunity is irrelevant given that the Commission ought to have heard him before submitting the request for replacement. However, it should be noted that, as has been found in paragraphs 54 and 56 above, the decision to terminate the service contract was adopted by A and not by the Commission. Moreover, since the Commission was not a party to the service contract, it was not in principle deemed to know that, at the time of the meeting, that contract had already been terminated by A, especially since A had not yet submitted the curriculum vitae of the new team leader to the Commission and the Commission had not yet approved that new team leader.
77      Accordingly, the applicant cannot claim that the Commission did not give him the opportunity to be heard before requesting A to replace him as team leader of the Subatra project, since the applicant had the opportunity to submit his observations throughout the procedure which led to his replacement.
78      In the second place, with regard to the alleged breach of the obligation to state reasons (see paragraph 47 above), it must be held that it is clear from the file before the Court that, after having set out its context, the request for replacement also specifies the reasons which led the Commission to make the request. In addition, the warning from the beneficiaries of the project was the subject of several meetings and discussions between the applicant and A (see paragraphs 74 to 76 above). Accordingly, the applicant cannot effectively claim that he was not in a position to understand the reasons for the request for replacement.
79      Thus, it must be held that, contrary to what the applicant claims, the request for replacement is adequately reasoned for legal purposes.
80      In the third place, with regard to the alleged breach of the duty of diligence (see paragraph 48 above), the applicant puts forward, in essence, three complaints. He submits, first, that the Commission approved the appointment of a replacement who did not have qualifications and experience equivalent to his own, secondly, that the Commission failed to determine whether his replacement was in a situation of a conflict of interests, and, thirdly, that, by deciding to exclude him from the Subatra project, the Commission failed to take account of his personal situation.
81      On the one hand, the first and second complaints must be rejected as being ineffective. As the Commission rightly notes, it is not the appointment of a new team leader which is the cause of the damage allegedly suffered by the applicant, but the termination of the service contract and, therefore, the loss of the applicant’s position as team leader. On the other hand, the third complaint must be rejected as being a mere allegation which is not corroborated by any evidence.
82      Accordingly, it must be held that the applicant has not established that the Commission committed a sufficiently serious breach of its duty of diligence.
83      In the light of the foregoing, it must be concluded that the applicant has not been able to establish any sufficiently serious breach of a rule of law in regard to him.
84      For the sake of completeness, it should be noted that, in any event, there is clearly no causal link.
The causal link
85      With regard to the condition concerning the causal link between the alleged conduct and the damage complained of, it follows from settled case-law that the alleged damage must be a sufficiently direct consequence of the conduct complained of and that such a causal link must be the determinant cause of the damage. The burden of proving such a causal link rests on the applicant (see judgment of 14 December 2017, European Dynamics Luxembourg and Evropaïki Dynamiki v Parliament, T‑164/15, not published, EU:T:2017:906, paragraph 72 and the case-law cited).
86      In the present case, the applicant claims that, by submitting the request for replacement, the Commission caused him serious financial damage and non-material damage.
–       The causal link between the allegedly unlawful conduct and the financial damage
87      According to the applicant, the financial damage consists, first of all, in a loss of income for the duration of the service contract between the date of its termination and the date on which it should have ended, in 2025, next, in a loss of opportunity to receive remuneration if the UNDP contract had not been terminated and had been completed and, lastly, in the loss of a genuine opportunity to have the service contract renewed.
88      In order to prove the existence of a causal link between the Commission’s allegedly unlawful conduct and that financial damage, first, the applicant argues that the damage allegedly suffered is attributable to the Commission inasmuch as, had the Commission not requested A to replace him, he could have continued to participate in the Subatra project. According to the applicant, the request for replacement was binding on A, which had no choice but to terminate the service contract. Secondly, the applicant claims that the alleged damage is the direct result of the Commission’s unlawful conduct in so far as, if the Commission had complied with the right to be heard, the obligation to state reasons and the duty of diligence, it would not have requested A to replace him.
89      The Commission disputes the applicant’s arguments.
90      In the first place, it should be noted that, as has been pointed out in paragraphs 54 and 56 above, the decision to terminate the service contract was adopted by A in accordance with Article 9(2) of that contract and that, according to that provision, A was not obliged to terminate the contract, but had a margin of discretion in that regard.
91      In the second place, the applicant adduces no evidence that, had the Commission acted in a manner which, according to him, would have been appropriate, it would not have requested A to replace him.
92      In the third place, as regards the loss of the remuneration that the applicant would have received if the service contract had been completed, it should be recalled that the applicant’s legal situation and, therefore, his remuneration are governed solely by the service contract, binding him to A, and that the Commission – a third party to that contract – cannot legally intervene in that regard. More specifically, the conditions governing the applicant’s remuneration are laid down in Article 3 of the service contract. It must therefore be concluded that the damage invoked by the applicant is a direct result of the termination of the service contract by A and not of the Commission’s allegedly unlawful conduct (see, to that effect, orders of 14 November 2018, Bruel v Commission and Others, T‑793/17, not published, EU:T:2018:801, paragraph 65 and the case-law cited, and of 14 November 2018, Spinoit v Commission and Others, T‑711/17, not published, EU:T:2018:803, paragraph 66).
93      In the fourth place, with regard to the loss of opportunity to receive remuneration if the UNDP contract had not been terminated and had been completed, it must be stated that that contract, to which the Commission is not a party, was terminated at the applicant’s request by means of the letter of 10 August 2020, which contains no reference to the applicant’s employment in the Subatra project. Moreover, as the Commission rightly notes, the alleged loss of remuneration linked to the UNDP contract occurred before the allegedly unlawful conduct attributed to the Commission, with the result that there is no link between the loss of that remuneration and that conduct.
94      In the fifth place, with regard to the alleged loss of a genuine opportunity to have the service contract renewed in 2025, it should be noted that, as the applicant acknowledges, the first subparagraph of Article 2(3) of that contract provides that the latter ‘carries no expectation of renewal or conversion to another type of contract or appointment in any activities of [A]’. That provision simply provides for the possibility of renewing the service contract only in the event that the main contract is extended. However, in the present case, the applicant does not prove that, in the absence of the Commission’s allegedly unlawful conduct, there would have been no doubt that the main contract and, consequently, the service contract would have been extended.
95      Thus, it must be held that the applicant has manifestly failed to adduce evidence of the existence of a causal link between the Commission’s alleged conduct and the financial damage invoked.
–       The causal link between the allegedly unlawful conduct and the non-material damage
96      With regard to the causal link between the alleged unlawful conduct and the non-material damage, the applicant claims that his removal from the Subatra project damaged his reputation inasmuch as, notwithstanding his efforts, he has since then been unable to find new employment. In addition, he maintains that he has been seriously affected by the criticisms made in the request for replacement. According to the applicant, he was also profoundly affected by the way in which he was treated by the Commission, without any regard or observance of his rights.
97      The Commission disputes the applicant’s arguments.
98      As a preliminary point, it should be borne in mind that it follows from the case-law that, where an applicant has put forward nothing to show the existence of its non-material damage or to establish its extent, it falls to it, at the very least, to prove that the conduct of which it complains was, by reason of its gravity, such as to cause it damage of that kind (judgment of 1 February 2017, Kendrion v European Union, T‑479/14, EU:T:2017:48, paragraph 121 and the case-law cited).
99      In the present case, the applicant alleges damage to his reputation, particularly with regard to future employers. However, the applicant’s arguments are not supported by evidence which shows that, by their gravity, the alleged breaches of the right to be heard, of the obligation to state reasons and of the duty of diligence were likely to have an impact on his reputation. He merely claims that the early termination of the service contract may have negative effects on his prospects of finding new employment.
100    In that regard, first of all, by referring to the early termination of the service contract as a possible cause of damage to his reputation, the applicant himself acknowledges that it is not the allegedly unlawful conduct of the Commission which is capable, per se, of adversely affecting his reputation, but the termination of the service contract, which was decided by A and was not disputed by the applicant.
101    Next, it is apparent from the file before the Court that the request for replacement was sent solely to A, without having been disclosed to third parties.
102    Lastly, account being taken of the evidence adduced by the applicant, it has not been shown that his replacement as team leader in the Subatra project is the cause of his failure to find new employment.
103    In those circumstances, it must be held that the applicant has manifestly failed to demonstrate a causal link between an alleged breach of the right to be heard, of the obligation to state reasons and of the duty of diligence in the procedure which led to his replacement as team leader, and the non-material damage alleged.
Conclusion on the claim for damages
104    In the light of the foregoing considerations, the claim for damages must be rejected as manifestly lacking any foundation in law.
105    A fortiori, the claim relating to the joint and several liability of the Commission with A (see paragraph 32 above) must be rejected. In addition, it should be noted that, apart from the fact that the applicant ruled out any liability on the part of A as regards the breach of the right to be heard, of the obligation to state reasons and of the duty of diligence, in so far as, by his action, the applicant alleges joint and several liability of the Commission with A, he calls into question A’s conduct under the service contract. The Court, however, clearly does not have jurisdiction to rule on the conduct relating to that contract.
Costs
106    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
107    In the present case, the applicant, who has been unsuccessful, nevertheless claims that the Court should order the Commission to pay the costs, even in the event that the action is dismissed (see paragraph 32 above). In essence, the applicant asserts that the Commission’s conduct left him no choice but to bring proceedings before the Court.
108    In that regard, it should be noted that, under Article 135(2) of the Rules of Procedure, the Court may order a party, even if successful, to pay costs which it has made the opposite party incur through its conduct, in particular where the Court holds those costs to be unreasonable or vexatious.
109    However, in the present case, the bringing of the present action by the applicant was not attributable to the Commission’s conduct.
110    Consequently, the applicant must be ordered to pay the costs pursuant to Article 134(1) of the Rules of Procedure, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Tenth Chamber)
hereby orders:
1.      The action is dismissed.
2.      Mr Rommert Folkertsma shall pay the costs.
Luxembourg, 9 February 2023.
E. Coulon
O. Porchia
Registrar
President
Table of contents
Background to the dispute
Forms of order sought
Law
The request for annulment of the letter of 5 October 2021
The claim for damages
The allegedly unlawful conduct of the Commission
– The Commission’s unlawful conduct in the light of the contractual provisions relied on by the applicant
– The Commission’s unlawful conduct in the light of Article 41 of the Charter
– No breach of the right to be heard, of the obligation to state reasons or of the duty of diligence
The causal link
– The causal link between the allegedly unlawful conduct and the financial damage
– The causal link between the allegedly unlawful conduct and the non-material damage
Conclusion on the claim for damages
Costs
*      Language of the case: English.