ORDER OF THE COURT (Ninth Chamber)
4 June 2024 (*)
(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Civil service – Officials – Staff Regulations of Officials of the European Union – Article 42c – Placement on leave in the interests of the service – Withdrawal of rights and privileges – Article 90 of the Statute – Concept of ‘decision’ and ‘complaint’ – Period for lodging an appeal – Inadmissibility)
In Case C‑659/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 8 November 2023,
LD, represented by H. Tettenborn, Rechtsanwalt,
appellant,
the other party to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
THE COURT (Ninth Chamber),
composed of O. Spineanu-Matei, President of the Chamber, J.-C. Bonichot and L.S. Rossi (Rapporteur), Judges,
Advocate General: J. Richard de la Tour,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1        By her appeal, LD seeks to have set aside the order of the General Court of the European Union of 29 August 2023, LD v EUIPO (T‑633/22, ‘the order under appeal’, EU:T:2023:488), by which the General Court dismissed her action seeking, first, annulment of the decision of the European Union Intellectual Property Office (EUIPO) of 1 December 2021 rejecting her requests made by letters of 8 August and 12 November 2021 for her rights and privileges to be maintained during the period of her leave in the interests of the service, and annulment of any implied decision of EUIPO relating to those requests, secondly, an order that EUIPO take the measures necessary to maintain those rights and privileges and, thirdly, compensation for the damage she claims to have suffered.
The appeal
2        Under Article 181 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.
3        That provision must be applied in the present case.
4        On 20 March 2024, the Advocate General expressed the following view:
‘1.      In support of her appeal, the appellant relies on a single ground of appeal by which she claims, in essence, that the General Court distorted both EUIPO’s letter of 26 July 2021, referred to in paragraph 13 of the order under appeal, and the appellant’s letter of 8 August 2021, referred to in paragraph 14 of that order, which led to an incorrect legal classification of those two acts for the purposes of calculating the time limits for lodging complaints and appeals.
2.      That single ground is divided into two parts.
The first part, alleging distortion of the letter of 26 July 2021
3.      In support of the first part of the single ground of appeal, the appellant complains, first, that the General Court distorted the letter of 26 July 2021 and, secondly, that it thereby infringed the right to an effective judicial remedy conferred on it by Article 47 of the Charter of Fundamental Rights of the European Union.
Arguments of the appellant
4.      By her first complaint, the appellant submits that the General Court, in paragraph 35 of the order under appeal, distorted the letter of 26 July 2021 by holding that EUIPO had implicitly established its definitive position as regards the end of her employment relationship and the need for her to return her accreditation cards. According to the appellant, by that letter, EUIPO had merely informed her that it was not competent to adopt a decision concerning the withdrawal of those cards. The appellant therefore complains that the General Court incorrectly classified that letter as a “decision” within the meaning of Article 90(1) of the Staff Regulations of Officials of the European Union (“the Staff Regulations”).
5.      By her second complaint, the appellant submits that, in view of the General Court’s legal classification of that letter, she is deprived of the opportunity to submit her claims in proceedings which are admissible and “substantively correct”, which constitutes an infringement of her fundamental rights and, in particular, of the right to an effective judicial remedy enshrined in Article 47 of the Charter of Fundamental Rights.
Assessment
6.      As regards the first complaint, alleging distortion of the letter of 26 July 2021, it is apparent from Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal is to be limited to points of law and that the General Court therefore has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. That assessment does not, save where the facts or evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 14 December 2023, Rivière and Others v Parliament, C‑767/21 P, EU:C:2023:987, paragraph 27 and the case-law cited).
7.      As regards more specifically the distortion of evidence and facts, the Court of Justice has repeatedly held that there is such distortion where, without recourse to new evidence, the assessment of the existing evidence is clearly incorrect. Such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence. Where an appellant alleges distortion of the evidence by the General Court, he or she must indicate precisely the evidence alleged to have been distorted by that Court and show the errors of appraisal which, in his or her view, led to that distortion (judgment of 14 December 2023, Rivière and Others v Parliament, C‑767/21 P, EU:C:2023:987, paragraph 28 and the case-law cited).
8.      In the present case, it is apparent from paragraph 35 of the order under appeal that the General Court assessed the scope of the letter of 26 July 2021 in the light of the context in which it was adopted, which, according to the case-law, constitutes an objective criterion (see, to that effect, judgment of 15 December 2022, Picard v Commission, C‑366/21 P, EU:C:2022:984, paragraph 96).
9.      The General Court thus recalled the wording of the email of 29 June 2021 by which the appellant requested that EUIPO take a formal decision based on Article 90(1) of the Staff Regulations concerning her situation and her rights and, more specifically, the withdrawal of the accreditation cards, “in the event of a negative response by EUIPO to the Staff Committee’s proposal concerning [her] situation”. It follows that, by that email, the wording of which is not disputed by the appellant, EUIPO was asked to adopt a decision concerning the withdrawal of her accreditation cards if it did not intend to call into question the position it had taken regarding the consequences of placing her on leave in the interests of the service. The General Court also stated that, by an email of 14 July 2021, referred to in paragraph 12 of the order under appeal, brought to the appellant’s attention on 19 July 2021, the content of which is also not disputed by the appellant, EUIPO stated that the placing of the appellant on leave in the interests of the service under Article 42c of the Staff Regulations entailed the termination of her employment relationship with EUIPO. It must be stated, as the General Court points out in paragraph 43 of the order under appeal, that EUIPO had already expressed that position on several occasions as regards the appellant’s individual situation, in particular in the “notes verbales” of 7 and 25 January 2021 referred to in paragraphs 6 and 7 of the order under appeal.
10.      As the General Court expressly states in paragraph 35 of the order under appeal, “it was in that context that, by its letter of 26 July 2021, EUIPO replied to the [appellant], stating that it was not competent to issue and withdraw accreditation cards.” Having regard, first, to the email of 29 June 2021 and, in particular, to its subject matter and wording and, secondly, to the email of 14 July 2021, by which EUIPO adopted a position concerning the appellant’s individual situation, the General Court was able to decide, without distorting the evidence, that the letter of 26 July 2021, in so far as it referred the appellant to the Spanish Ministry of Foreign Affairs, European Union and Cooperation, which was competent to issue and withdraw accreditation cards, necessarily implied that EUIPO did not intend to reconsider its position and thus definitively established that position with regard to the appellant’s individual situation.
11.      In the light of those factors, the first complaint must therefore be rejected as manifestly unfounded.
12.      As regards the second complaint, alleging infringement of the right to an effective judicial remedy, it should be noted that, according to settled case-law, it follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) and Article 169(2) of the Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of that appeal, failing which the appeal or ground of appeal concerned will be inadmissible (see, to that effect, judgments of 11 January 2024, Planistat Europe and Charlot v Commission, C‑363/22 P, EU:C:2024:20, paragraph 40 and the case-law cited, and of 18 January 2024, Jenkinson v Council and Others, C‑46/22 P, EU:C:2024:50, paragraph 60 and the case-law cited). An appeal that does not have such characteristics cannot be the subject of a legal assessment which would allow the Court to exercise its function in the area under examination and to exercise its powers of judicial review (judgment of 11 January 2024, Foz v Council, C‑524/22 P, EU:C:2024:23, paragraph 27 and the case-law cited).
13.      A ground of appeal supported by an argument that is not sufficiently clear and precise to enable the Court to exercise its powers of judicial review, in particular because essential elements on which the ground of appeal relies are not indicated sufficiently coherently and intelligibly in the text of the appeal, which is worded in a vague and ambiguous manner in that regard, does not satisfy those requirements and must be declared inadmissible (judgment of 18 January 2024, Jenkinson v Council and Others, C‑46/22 P, EU:C:2024:50, paragraph 61 and the case-law cited).
14.      In the present case, although the appeal identifies precisely the contested paragraphs of the order under appeal, it must be stated that it refers in summary form to a complaint alleging infringement of “fundamental legal principles and especially the [appellant]’s right to [an] effective legal remedy”, and does not contain legal arguments sufficient to enable the Court to exercise its powers of judicial review.
15.      That complaint must therefore be rejected as manifestly inadmissible.
16.      It follows that the first part of the single ground of appeal must be rejected as being, in part, manifestly inadmissible and, in part, manifestly unfounded.
The second part, alleging distortion of the letter of 8 August 2021
Arguments of the appellant
17.      In support of the second part of the single ground of appeal, the appellant claims, summarily, that in paragraphs 37 to 44 of the order under appeal the General Court distorted the facts and committed a “fundamental error … in the application of the law and in the assessment of the facts”, by failing to distinguish, for the purposes of the legal classification of the letter of 8 August 2021, between the elements constituting a complaint, within the meaning of Article 90(2) of the Staff Regulations, and those constituting a request, within the meaning of Article 90(1) thereof.
18.      The appellant complains, in essence, that the General Court adopted a “blanket categorisation” of the letter of 8 August 2021, even though certain elements thereof called on EUIPO to take a decision on the basis of Article 90(1) of the Staff Regulations for the first time, and in particular to take measures with regard to the Spanish Ministry of Foreign Affairs, European Union and Cooperation. According to the appellant, that is evidenced by the wording used by the General Court in the last sentence of paragraph 44 of the order under appeal and in particular the use of the word “requesting” in the expression “requesting EUIPO to reconsider [its position] and bring it to the attention of the Spanish authorities”. She argues that that “blanket categorisation” of the letter of 8 August 2021 and of all its constituent elements is clearly unlawful since both EUIPO – as appointing authority – and the General Court are required to assess in detail the submissions made by officials, taking into account, moreover, that the applicant acted here without legal advice.
Assessment
19.      At the outset, it should be noted that the appellant does not dispute the considerations set out by the General Court in paragraphs 37 to 43 of the order under appeal as regards the factors on the basis of which the letter of 8 August 2021 could be classified as a “complaint” within the meaning of Article 90(2) of the Staff Regulations. In reality, the appellant’s complaint seeks to call into question the assessment made by the General Court in paragraph 44 of that order. In that paragraph, the General Court held that the classification of that letter as a “complaint” within the meaning of Article 90(2) of the Staff Regulations, “[was] not called into question by the applicant’s argument that EUIPO was requested for the first time, by that letter and the supplement of 12 November 2021, to take measures vis-à-vis the Spanish Ministry of Foreign Affairs, European Union and Cooperation, that is to say, in particular, ‘to issue amended information [to that ministry] in order that the matter can be rectified as soon as possible.’” In that paragraph, the General Court went on to give reasons for that assessment.
20.      Consequently, it must be held that the appellant merely reiterates the argument which she had put forward before the General Court in her action at first instance and is in fact attempting to obtain from the Court of Justice a fresh assessment of a question of fact, namely, in the present case, whether, by the letter of 8 August 2021, EUIPO was requested for the first time to correct its erroneous measures and to inform the Spanish Ministry of Foreign Affairs, European Union and Cooperation thereof, without however alleging any distortion in that regard.
21.      Therefore, the second part of the single ground of appeal is, in accordance with the case-law cited above, manifestly inadmissible.
22.      Consequently, the single ground of appeal relied on by the appellant and, therefore, the appeal brought by the appellant, must be rejected as being, in part, manifestly inadmissible and, in part, manifestly unfounded, and the appellant must be ordered to pay the costs incurred in the proceedings, in accordance with Article 137 and Article 184(1) of the Rules of Procedure.’
5        For the same reasons as those given by the Advocate General in points 12 to 15 and 19 to 21 of his view, the second complaint in the first part, and the second part of the single ground of appeal, must be rejected as manifestly inadmissible.
6        As regards the first complaint in the first part, it should be noted, for the same reasons as those given by the Advocate General in points 6 to 10 of his view, that the General Court did not distort the letter of 26 July 2021 when it found, in paragraph 35 of the order under appeal, that it necessarily implied that EUIPO did not intend to reconsider its position and thus definitively established that position with regard to the appellant’s individual situation. Therefore, in the light of the case-law cited in paragraph 34 of that order, which the appellant does not dispute, it must be held that the General Court clearly did not err in law, in paragraph 36 of that order, in classifying the letter of 26 July 2021 as a ‘decision’ within the meaning of Article 90(1) of the Staff Regulations.
7        In those circumstances, the first complaint in the first part of the single ground of appeal must be rejected as manifestly unfounded.
8        In the light of the foregoing, the appeal must be dismissed in its entirety as being, in part, manifestly inadmissible and, in part, manifestly unfounded.
Costs
9        Under Article 137 of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. In the present case, since the present order has been adopted before the appeal was served on EUIPO and therefore before it could have incurred costs, LD must be ordered to bear her own costs.
On those grounds, the Court (Ninth Chamber) hereby orders:
1.      The appeal is dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded.
2.      LD shall bear her own costs.
Luxembourg, 4 June 2024.
A. Calot Escobar
O. Spineanu-Matei
Registrar
President of the Chamber
*      Language of the case: English.