62021TO0334
ORDER OF THE GENERAL COURT (First Chamber)
13 June 2022 (
*1
)
(Civil service – Appointment of the European Prosecutors of the European Public Prosecutor’s Office – Appointment of one of the candidates nominated by Portugal – No dispute between the Union and one of its servants within the limits and under the conditions laid down in the Staff Regulations and the CEOS – Article 270 TFEU – Manifest lack of jurisdiction)
In Case T‑334/21,
Ana Carla Mendes de Almeida, residing in Sobreda (Portugal), represented by R. Leandro Vasconcelos, M. Marques de Carvalho and P. Almeida Sande, lawyers,
applicant,
v
Council of the European Union, represented by K. Pleśniak and J. Gil, acting as Agents,
defendant,
THE GENERAL COURT (First Chamber),
composed of H. Kanninen, President, M. Jaeger and O. Porchia (Rapporteur), Judges,
Registrar: E. Coulon,
having regard to the written part of the procedure,
makes the following
Order
1
By her action based on Article 270 TFEU, the applicant, Ms Ana Carla Mendes de Almeida, seeks the annulment of Council Implementing Decision (EU) 2020/1117 of 27 July 2020 appointing the European Prosecutors of the European Public Prosecutor’s Office (OJ 2020 L 244, p. 18), in so far as it appoints Mr José Eduardo Moreira Alves d’Oliveira Guerra as a European Prosecutor of the European Public Prosecutor’s Office (‘the contested decision’), and the annulment of the decision of the Council of the European Union of 8 March 2021 rejecting her complaint lodged on 10 February 2021 against the contested decision (‘the decision rejecting the complaint’).
Background to the dispute
2
On 12 October 2017, the Council adopted Regulation (EU) 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) (OJ 2017 L 283, p. 1). Under Articles 1 and 8 thereof, that regulation establishes the EPPO as a body of the European Union and sets out rules concerning its functioning.
3
According to Article 8(2) of that regulation, concerning the structure of the EPPO, that body is to be organised at a central level and a decentralised level.
4
According to Article 2(4) of Regulation 2017/1939, the staff of the EPPO is defined as the personnel at the central level who supports the College, the Permanent Chambers, the European Chief Prosecutor, the European Prosecutors, the European Delegated Prosecutors and the Administrative Director in the day-to-day activities in the performance of the tasks of the EPPO under that regulation.
5
The European Prosecutors have their duties and functions defined in Article 12 of that regulation.
6
As regards their appointment, Article 16(1) of Regulation 2017/1939 provides that each Member State participating in enhanced cooperation on the establishment of the EPPO must nominate three candidates for the position of European Prosecutor from among candidates who are active members of the public prosecution service or judiciary of the relevant Member State, whose independence is beyond doubt, and who possess the qualifications required for appointment to high prosecutorial or judicial office in their respective Member States and have relevant practical experience of national legal systems, of financial investigations and of international judicial cooperation in criminal matters.
7
Article 16(2) of Regulation 2017/1939 states that, after having received the reasoned opinion of the selection panel referred to in Article 14(3) of that regulation, the Council is to select and appoint one of the candidates to be the European Prosecutor of the Member State in question. That provision states that, if the selection panel finds that a candidate does not fulfil the conditions required for the performance of the duties of a European Prosecutor, its opinion is binding on the Council. In accordance with Article 16(3) of Regulation 2017/1939, the Council, acting by simple majority, is to select and appoint the European Prosecutors for a non-renewable term of six years and may decide to extend the mandate for a maximum of three years at the end of the six-year period. Article 16(4) of that regulation provides that every three years there is to be a partial replacement of one third of the European Prosecutors and that the Council, acting by simple majority, is to adopt transitional rules for the appointment of European Prosecutors for and during the first mandate period.
8
In accordance with Article 14(3) of Regulation 2017/1939, the Council is to establish the selection panel’s operating rules.
9
Article 96 of Regulation 2017/1939, which relates to general staff provisions, provides, in the first subparagraph of paragraph 1 thereof, that the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), as well as the rules adopted by agreement between the institutions of the Union for giving effect to the Staff Regulations and the CEOS, apply to the European Chief Prosecutor and the European Prosecutors, the European Delegated Prosecutors, the Administrative Director and the staff of the EPPO, unless otherwise provided for in that regulation. According to the second subparagraph of that provision, the European Chief Prosecutor and the European Prosecutors are to be engaged as temporary agents of the EPPO under Article 2(a) of the CEOS.
10
In respect of the staff of the EPPO, Article 96(2) of that regulation provides that that staff is to be recruited according to the rules and regulations applicable to officials and other servants of the European Union.
11
On 13 July 2018, the Council adopted Implementing Decision (EU) 2018/1696 on the operating rules of the selection panel provided for in Article 14(3) of Regulation 2017/1939 (OJ 2018 L 282, p. 8).
12
On 23 April 2019, at the end of the national selection procedure, the three candidates for the position of European Prosecutor hoping to be nominated by the Portuguese Republic were successful. The applicant was one of those candidates. Since 2012 she has been a public prosecutor with the Departamento Central de Investigação e Ação Penal (Central Department of Criminal Investigation and Prosecution) of the Portuguese Republic and, in January 2020, she was appointed coordinator of the Section for the Investigation and Prevention of Crimes relating to European funds. One of the two other successful candidates was Mr Moreira Alves d’Oliveira Guerra. The names of the three successful candidates were communicated to the selection panel referred to in Article 14(3) of Regulation 2017/1939. The candidates were listed in alphabetical order.
13
On 24 October 2019, the applicant was heard by the selection panel and, on 18 November 2019, the selection panel sent its reasoned opinion to the Council and gave the following order of preference for the three candidates nominated by the Portuguese Republic: (1) the applicant; (2) Mr Moreira Alves d’Oliveira Guerra; (3) Mr João Conde Correia dos Santos.
14
On 27 July 2020, the Council adopted the contested decision.
15
According to Article 2 of that decision:
‘The following persons are hereby appointed European Prosecutors of the EPPO as temporary agents at grade AD 13 for a non-renewable period of three years from 29 July 2020:
…
Mr … Moreira Alves d’Oliveira Guerra.’
16
On 22 October 2020, the applicant submitted a complaint to the Council, pursuant to Article 90 of the Staff Regulations, against the contested decision.
17
On 5 February 2021, the applicant brought an action under Article 263 TFEU, registered at the Court Registry as Case T‑75/21, seeking the annulment of the contested decision.
18
On 10 February 2021, the applicant lodged a supplementary complaint, in which she referred to new facts which she wished the Council to take into account in its response to her complaint.
19
By the decision rejecting the complaint, the appointing authority of the Council (‘the appointing authority’) considered the complaint to be manifestly inadmissible based on its lack of competence to uphold it.
20
By order of 8 July 2021, Mendes de Almeida v Council (T‑75/21, not published, under appeal, EU:T:2021:424), the General Court dismissed the action brought on 5 February 2021 as being inadmissible on the ground that it was out of time. The appeal against that order is pending before the Court of Justice.
Forms of order sought
21
The applicant claims that the Court should:
–
annul the decision rejecting the complaint;
–
annul the contested decision;
–
order the Council to pay the costs.
22
The Council contends that the Court should:
–
dismiss the action as being, in part, manifestly inadmissible and, in part, manifestly unfounded;
–
order the applicant to pay the costs.
Law
23
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 an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
24
In the present case, the Court considers that it has sufficient information from the documents before it and has decided, pursuant to Article 126 of the Rules of Procedure, to give a decision on the action without taking further steps in the proceedings.
25
At the outset, it is important to recall that the applicant brought the present action, seeking the annulment of the contested decision and the decision rejecting the complaint, under Article 270 TFEU.
26
It follows from the wording of that article that the jurisdiction provided for therein extends to any dispute between the Union and its servants within the limits and under the conditions laid down in the Staff Regulations and the CEOS.
27
In that regard, in the application, the applicant justifies the bringing of the action under Article 270 TFEU by the fact that Article 96(1) of Regulation 2017/1939 provides that the Staff Regulations and the CEOS, as well as the rules adopted by agreement between the institutions of the Union for giving effect to the Staff Regulations and the CEOS, apply, inter alia, to the European Prosecutors, unless otherwise provided, and that the European Prosecutors are to be engaged as temporary agents of the EPPO under Article 2(a) of the CEOS. She argues that no provision in Regulation 2017/1939 precludes the application of the Staff Regulations and the CEOS to their appointment.
28
The applicant states that, if the appointment of the European Prosecutors takes place at the highest political level, this is also the case for the European Chief Prosecutor, who is appointed by the Council and the European Parliament. She points out that Rule VII(1) of the annex to Implementing Decision 2018/1696 expressly provides for the remedies set out in the Staff Regulations to be applied to candidates for the position of European Chief Prosecutor who have been excluded by the selection panel. This should lead, for the sake of organic internal consistency, to Implementing Decision 2018/1696 being interpreted as meaning that the same remedies are applicable to candidates for a European Prosecutor position. The legislature intended to set aside only the rules of the Staff Regulations which are incompatible with the nature of the procedure for selecting the European Prosecutors, in order to guarantee the choice of a European Prosecutor for each Member State participating in that enhanced cooperation and the inadmissibility of applications by nationals of other Member States.
29
The applicant argues that the fact that Implementing Decision 2018/1696 does not expressly provide for the Staff Regulations to be applied to the European Prosecutors does not preclude the bringing of an action under Article 270 TFEU against the contested decision. It is possible to lodge a complaint under Article 90 of the Staff Regulations, provided that it satisfies the procedural and timing requirements applicable to it, and Article 270 TFEU must be understood as meaning that it applies exclusively not only to persons who have the status of officials or servants other than local staff, but also to those who claim that status. In accordance with Article 46 of the CEOS, the provisions of Title VII of the Staff Regulations, which state that candidates for a post falling within the scope of the CEOS are subject to Articles 90 and 91 of the Staff Regulations, apply by analogy. The applicant also refers to the case-law according to which Article 270 TFEU also applies to candidates for the post of official or servant other than local staff.
30
The applicant adds that the fact that she also brought, on 5 February 2021, an action under Article 263 TFEU, registered as Case T‑75/21, against the contested decision is irrelevant and she denies that there can be a situation of lis pendens as regards the present action.
31
As regards both the contested decision and the decision rejecting the complaint, the Council contends that the Court should dismiss the action. It considers the application for annulment of the contested decision to be manifestly inadmissible on the grounds of lis pendens and, in any event, on account of the Court’s lack of jurisdiction to hear and determine it under Article 270 TFEU. It considers the application for annulment of the decision rejecting the complaint to be manifestly unfounded.
32
In the present case, it should be noted that the dispute concerns two decisions of the Council, one seeking to appoint one person over another as a European Prosecutor for the Portuguese Republic and the other seeking to reject the complaint which the applicant, who was not appointed to the post of European Prosecutor for that Member State, brought against the appointment decision taken by the Council.
33
In order to determine whether the applicant was right to bring an action under Article 270 TFEU against the above decisions, it is necessary to examine whether the dispute between her and the Council concerning those decisions is a dispute between the Union and its servants within the limits and under the conditions laid down in the Staff Regulations and the CEOS.
34
In that respect, it should be borne in mind that the notion of dispute between the Union and its servants has been given a wide definition by the case-law, with the result that disputes concerning persons who have the status neither of officials nor of employees, but who claim that status, are also examined within that framework (see judgment of 5 October 2004, Sanders and Others v Commission, T‑45/01, EU:T:2004:289, paragraph 45 and the case-law cited). This applies to persons who are candidates for a post for which the conditions of appointment are laid down in the Staff Regulations or the CEOS.
35
Concerning the EPPO, it should be noted that not all provisions of the Staff Regulations are applicable to it per se. It is apparent from Regulation 2017/1939 that it is the provisions of that regulation which determine the extent to which certain provisions of the Staff Regulations or the CEOS apply to the European Prosecutors.
36
Article 96(1) of Regulation 2017/1939 provides that the Staff Regulations and the CEOS apply to the European Chief Prosecutor and the European Prosecutors, the European Delegated Prosecutors, the Administrative Director and the staff of the EPPO ‘unless otherwise provided for in this Regulation’.
37
It is useful to point out that, in accordance with the provisions of Article 2(4) and Article 12 of Regulation 2017/1939, as referred to in paragraphs 4 and 5 above, the European Prosecutors are not members of the staff of the EPPO.
38
As regards their appointment, which is at issue in the present case, Article 16 of that regulation, as recalled in paragraphs 6 and 7 above, lays down a specific procedure with special rules.
39
In particular, that provision guarantees only the Member States participating in enhanced cooperation concerning the creation of the EPPO to have, at the end of the appointment procedure, one European Prosecutor appointed by the Council. It enables them, prior to that appointment, to nominate three candidates who, in view of their obligation to be active members of the public prosecution service or judiciary of the Member State nominating them, in principle have the nationality of that State.
40
That provision thus lays down a sui generis procedure which is different from that applicable to the recruitment of the staff of the EPPO, it being specified that the latter is to be recruited, in accordance with Article 96(2) of Regulation 2017/1939, according to the rules and regulations applicable to officials and other servants of the European Union.
41
It should be noted that the procedure for appointing the European Prosecutors does not require compliance with the principle of non-discrimination on grounds of nationality, as laid down in Article 27 of the Staff Regulations, for the benefit of nationals of all the Member States, even those not participating in the enhanced cooperation.
42
Furthermore, it follows from Article 16 of Regulation 2017/1939 that it is neither the appointing authority nor the EPPO’s Authority Empowered to Conclude Contracts of Employment (‘AECE’) who appoints the European Prosecutors, but the Council itself. The fact that, in the contested decision, it is stated that the successful candidates, which include Mr Moreira Alves d’Oliveira Guerra, are appointed European Prosecutors as temporary agents at grade AD 13 cannot be sufficient to infer that the Council acted as appointing authority or AECE when appointing the European Prosecutors.
43
The sui generis nature of the procedure for appointing the European Prosecutors may be explained by the fact that, as the Council rightly notes, in essence, it concerns persons called upon to exercise, in the context of that cooperation, a special high-level responsibility within the institutional system of the European Union.
44
It is important to note that it is not until after the European Prosecutors have been appointed, pursuant to Article 16 of Regulation 2017/1939, that they are to be engaged, in accordance with the second subparagraph of Article 96(1) of that regulation, as temporary agents of the EPPO under Article 2(a) of the CEOS. It follows from that subparagraph that only the European Prosecutors’ pay and employment conditions fall within the scope of the CEOS and within the competence of the EPPO’s AECE. The situation is different for the conditions and procedures leading to their appointment.
45
As those conditions and procedures are not laid down in the Staff Regulations or in the CEOS, the disputes that relate to those conditions and procedures cannot therefore be regarded as disputes between the Union and one of its servants for the purposes of Article 270 TFEU.
46
The applicant’s other arguments are not such as to cast doubt on that finding.
47
First, the applicant cannot validly rely on the order of 11 July 1996, Gomes de Sá Pereira v Council (T‑30/96, EU:T:1996:107), to support the claim that she was entitled to bring her action under Article 270 TFEU.
48
It is true that paragraphs 22 to 25 of the order of 11 July 1996, Gomes de Sá Pereira v Council (T‑30/96, EU:T:1996:107), contain a reminder, in essence, of the case-law according to which the jurisdiction of the EU judicature to rule on any dispute between the Union and its servants must be understood as covering not only disputes concerning persons who have the status of official or servant other than local staff, but also those relating to persons claiming that status, and it was held that the appointment of the members of the boards of appeal of the European Union Intellectual Property Office (EUIPO) was to be challenged on the basis of the remedies provided for in the Staff Regulations.
49
However, the solution adopted in the order of 11 July 1996, Gomes de Sá Pereira v Council (T‑30/96, EU:T:1996:107), cannot be transposed to the present case, since, as the Council rightly points out, the appointment of the members of the boards of appeal of EUIPO is based on rules different from those applicable to the appointment of the European Prosecutors. As regards the members of those boards of appeal, the rules that are relevant to them provide for the Staff Regulations, the CEOS and the implementing rules for those provisions to be applied to the staff, which includes those members (see, to that effect, order of 11 July 1996, Gomes de Sá Pereira v Council, T‑30/96, EU:T:1996:107, paragraphs 22 and 23). By contrast, as regards the appointment of the European Prosecutors, as is apparent from paragraphs 35 to 44 above, the legislature, in Regulation 2017/1939, chose to establish a sui generis system, according to which the European Prosecutors are not members of the staff of the EPPO, as has already been stated in paragraph 37 above.
50
Second, the annex to Implementing Decision 2018/1696, in the section relating to the appointment of the European Chief Prosecutor on which the applicant relies, does not allow the applicant to base her action on Article 270 TFEU.
51
It is apparent from the provisions of that annex, read in conjunction with Articles 14 and 16 of Regulation 2017/1939, that the mechanisms for appointing the European Chief Prosecutor and the European Prosecutors are each governed by their own specific characteristics, at every stage of the procedure.
52
In that regard, in view, in particular, of the fact that the procedure for selecting the European Chief Prosecutor begins with an open call for applications, published in the Official Journal of the European Union, the possibility of submitting a complaint to the Council in accordance with Article 90(2) of the Staff Regulations is open only to candidates for that position of European Chief Prosecutor against decisions of the selection panel which adversely affect them and the list drawn up by that panel which does not include those candidates.
53
By contrast, in the context of the procedure for appointing the European Prosecutors, which begins with the nomination of three candidates by each Member State participating in the enhanced cooperation, the possibility of lodging a complaint cannot be extended to decisions of the Council not to appoint certain candidates to the position of European Prosecutor, in the absence of a clearly expressed intention by the legislature.
54
It follows from all of the foregoing that the present dispute cannot be regarded as a dispute between the Union and one of its servants within the limits and under the conditions laid down in the Staff Regulations and the CEOS, for the purposes of Article 270 TFEU.
55
The Court therefore manifestly lacks jurisdiction to hear and determine the present action against the contested decision.
56
Moreover, since the contested decision is not a decision falling within the Staff Regulations and the CEOS, it cannot be considered that the complaint made by the applicant against the contested decision and the decision taken by the Council to reject that complaint may fall within the scope of the Staff Regulations and the CEOS. The Court therefore also manifestly lacks jurisdiction to hear and determine the decision rejecting the complaint.
57
According to the case-law, it is for the applicant to choose the legal basis of its action and not for the EU judicature itself to choose the most appropriate legal basis (see judgment of 24 October 2014, Technische Universität Dresden v Commission, T‑29/11, EU:T:2014:912, paragraph 24 and the case-law cited). It is not possible to regard the present action against the contested decision as having been brought on the basis of Article 263 TFEU, since the applicant has expressly invoked Article 270 TFEU, irrespective of the fact that she has already brought an action based on Article 263 TFEU against the contested decision in Case T‑75/21, which has already given rise to the order of 8 July 2021, Mendes de Almeida v Council (T‑75/21, not published, under appeal, EU:T:2021:424).
58
As regards the decision rejecting the complaint, in any event, even if the applicant intended to bring her action against that decision under Article 263 TFEU in the present case and without it being necessary to rule on the question whether such an action is admissible, it is sufficient to state, for the same reasons as those set out in paragraphs 35 to 54 above, that the appointing authority of the Council was not competent to hear and determine the complaint lodged by the applicant on the basis of Article 90 of the Staff Regulations and that it was therefore right to reject that complaint. The action is therefore, in any event, manifestly unfounded in that regard.
59
The action must, accordingly, be dismissed.
Costs
60
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. Since the applicant has been unsuccessful, she must be ordered to bear her own costs and to pay those incurred by the Council, in accordance with the form of order sought by the Council.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1.
The action is dismissed.
2.
Ms Ana Carla Mendes de Almeida shall pay the costs.
Luxembourg, 13 June 2022.
E. Coulon
Registrar
H. Kanninen
President
(
*1
)	Language of the case: Portuguese.