ORDER OF THE COURT (Seventh Chamber)
16 March 2021 (*)
(Appeal – Article 181 of the Rules of Procedure of the Court – Civil service – Officials – Appraisal – Promotion – 2017 promotion exercise – List of officials promoted – Decision not to include an official on that list– Action for annulment and for damages – Appeal in part manifestly inadmissible and in part manifestly unfounded)
In Case C‑399/20 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 22 August 2020,
XH, represented by E. Auleytner, radca prawny,
appellant,
the other party to the proceedings being:
European Commission,
defendant at first instance,
THE COURT (Seventh Chamber),
composed of A. Kumin, President of the Chamber, T. von Danwitz and I. Ziemele (Rapporteur), Judges,
Advocate General: G. Pitruzzella,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision 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 XH seeks to have set aside in part the judgment of the General Court of the European Union of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291) (‘the judgment under appeal’), by which the General Court upheld in part her action seeking, inter alia, annulment of the decision published in Administrative Notices
No 25-2017 of 13 November 2017 not to include her name on the list of officials promoted in the 2017 promotion exercise and compensation for the damage allegedly suffered as a result, inter alia, of that decision.
The appeal
2        Pursuant to Article 181 of the Rules of Procedure of the Court, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.
3        It is appropriate to apply that provision in the present case.
4        On 11 December 2020, the Advocate General took the following position:
‘1.      For the reasons set out below, I propose that the Court, in accordance with Article 181 of its Rules of Procedure, dismiss the appeal as being, in part, manifestly inadmissible and, in part, manifestly unfounded. In those circumstances, the appellant should bear its own costs, in accordance with Article 137 of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 184(1) of those Rules.
Admissibility of the first head of claim in the appeal
2.      By her first head of claim, the appellant seeks that the Court set aside the judgment under appeal (i) in so far as the General Court declared inadmissible the arguments put forward in the context of the first plea in her action for annulment, by which she challenged, firstly, the presence in her personal file of the interim probation report sent to her on 5 December 2014 (“the interim probation report”) and, secondly, her appraisal reports drawn up in the 2015 and 2016 exercises and (ii) in so far as it declared that there was no need to examine the other complaints which she raised under the first plea of her action for annulment or the second plea of that action.
3.      For the reasons which I shall set out below, the first head of claim in the appeal must, in my view, be declared manifestly inadmissible.
4.      It must be borne in mind that, under Article 169 of the Rules of Procedure, an appeal is to seek to have set aside the decision of the General Court as set out in the operative part of that decision. That provision encapsulates the basic principle applying to appeals, namely that an appeal must be directed against the operative part of the General Court’s decision and may not merely seek the amendment of some of the grounds of that decision (judgment of 16 July 2020, Inclusion Alliance for Europe v Commission, C‑378/16 P, EU:C:2020:575, paragraph 57 and the case-law cited).
5.      The appellant is therefore not, in principle, entitled to challenge the grounds of the judgment under appeal in which the General Court held that some of the arguments she had raised in support of her claim for annulment of the decision not to include her name on the list of officials promoted in the 2017 promotion exercise (“the decision not to promote the appellant”/“the decision not to promote her”) were inadmissible or that there was no need to examine them on the merits.
6.      It should be noted in that regard that although, in the context of the first plea in her action for annulment, the appellant relied on the defamatory content of the interim probation report and the impact that that report had on the drafting of her appraisal reports drawn up in the 2015 and 2016 exercises, those arguments sought to claim not, as such, that those three reports were unlawful, but that the decision not to promote the appellant was tainted by irregularity on the ground that the presence of that interim probation report in her personal file reflected the absence of a real examination of the comparative merits of the appellant in relation to those of the other officials eligible for promotion.
7.      The General Court was therefore correct, contrary to what the appellant claims in her appeal, in holding in paragraph 48 of the judgment under appeal that, by those arguments, she was alleging, in essence, firstly, irregularities in respect of the content of her personal file within the meaning of Article 26 of the Staff Regulations of Officials of the European Union (“the Staff Regulations”), and, secondly, irregularities in respect of the documents taken into account for the purposes of the consideration of the comparative merits within the meaning of Article 45 of the Staff Regulations.
8.      Although the General Court declared the first of those complaints inadmissible, as regards the second, on one hand, it rejected, in paragraphs 88 to 107 of the judgment under appeal, the appellant’s argument based on the direct or indirect influence, in the context of the promotion procedure for 2017 (“the 2017 promotion procedure”), of the medical note of Dr A dated 31 March 2015, drawn up following the appellant’s medical examination by the European Commission’s medical service on 22 October 2014, and, on the other hand, it upheld, in paragraphs 124 to 150 of the judgment under appeal, the argument as to the influence on that procedure of the interim probation report and the end-of-probation report sent to the appellant on 26 March 2015, finding, in paragraph 150 of the judgment under appeal, that “the taking into account, on the part of the competent appointing authority, of the reports relating to the applicant’s probationary period, namely the end-of-probation report and the interim probation report, constitutes an irregularity capable of vitiating the 2017 promotion procedure in so far as it concerns the applicant”. After assessing, in paragraphs 151 to 159 of the judgment under appeal, the impact of the procedural irregularity found, the General Court concluded, in paragraph 160 of the judgment under appeal, that the first plea for annulment had to be upheld and the decision not to promote the appellant annulled.
9.      It must therefore be stated, as regards the appellant’s claim for annulment of the decision not to promote her, that that claim was upheld by the Court in full and that the appellant has therefore been entirely successful in that regard. That finding can be called into question neither by the fact that the complaint alleging the irregular presence of certain documents in her personal file was declared inadmissible in paragraphs 74 to 84 of the judgment under appeal, nor by the fact that the General Court decided, for reasons of procedural economy, not to examine the other complaints put forward under the first plea of the action for annulment or the second plea for annulment, all of which sought to challenge the validity of the consideration of comparative merits carried out by the appointing authority in the 2017 promotion procedure.
10.      It should also be noted that following the annulment of the decision not to promote the appellant, it is for the Commission, as the General Court stated in paragraph 174 of the judgment under appeal, pursuant to the first paragraph of Article 266 TFEU, to decide on the measures necessary to comply with that judgment and to adopt, if appropriate, a new decision based on a consideration of the comparative merits in accordance with a regular procedure, as regards the appellant.
11.      It is true that a fresh consideration of comparative merits by the appointing authority would take place on the basis, inter alia, of the appraisal reports drawn up in the 2015 and 2016 exercises, which, unlike the interim probation report, continue to form part of the appellant’s personal file. It should be pointed out, however, that the appellant did not put forward before the General Court any claim for a declaration that those appraisal reports – which, moreover, she has herself, on several occasions in her application for annulment, described as laudatory in her regard – are unlawful, nor claims seeking that they be removed from her personal file. On the contrary, the appellant maintained, in her second plea for annulment, that if the appointing authority had duly taken into account the content, inter alia, of those reports, it should necessarily have acknowledged that her merits were not lower than those of the promoted officials. Lastly, I note, as the Commission indeed did before the General Court, that, in her application for annulment, the appellant did not make a detailed criticism of the content of those appraisal reports but merely referred to the “satisfactory” conclusions of those reports, which,
as the appellant herself acknowledged in her statement in reply at first instance, did not adversely affect her.
12.      In those circumstances, the first head of claim in the appeal must be dismissed as manifestly inadmissible.
13.      For the sake of completeness, I shall examine below the complaints put forward by the appellant in the first ground of her appeal, relied on in support of her first head of claim, which are, in turn, manifestly inadmissible or manifestly unfounded or both for the reasons set out below.
The first ground of appeal
14.      The first ground of the appeal alleges infringement of the right to effective judicial protection, as laid down in Article 47 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 7 thereof, and of Articles 43 to 45, 90 and 91 of the Staff Regulations. That ground is divided into two parts.
First part of the first ground of appeal
15.      The first part of the first ground of appeal is directed against paragraphs 72 to 84 of the judgment under appeal. The appellant claims, in essence, that, by declaring inadmissible her arguments challenging the presence of the interim probation report in her personal file and the appraisal reports drawn up in the 2015 and 2016 exercises, the General Court adopted an excessively restrictive interpretation of Articles 90 and 91 of the Staff Regulations and did not take account of the occurrence of new facts on which she had relied. Those new facts were, in particular, the removal of the interim probation report from her personal file, which was communicated to the appellant on 18 January 2018 and which took place after the expiry both of the time limits within which to appeal Decision R/730/15 of 9 February 2016, by which the competent appointing authority rejected her complaint brought against Decision D/306/15 of 24 July 2015 by which that authority rejected her first request for assistance (“Decision R/730/15”), and of the time limits to challenge the appraisal reports drawn up in the 2015 and 2016 exercises. She argues that the existence of new facts justifies the review of a decision which has not been challenged within the period prescribed in accordance with the settled case-law of the Court of Justice and the General Court (judgment of 15 May 1985, Esly v Commission, 127/84, EU:C:1985:204, paragraph 12, and order of 11 July 1997, Chauvin v Commission, T‑16/97, EU:T:1997:116, paragraph 37).
16.      In that regard, it should be noted that, after pointing out, in paragraphs 74 and 75 of the judgment under appeal, firstly, that the time limits for submitting a request, a complaint or
appeal provided for in Articles 90 and 91 of the Staff Regulations are a matter of public policy and that any exceptions to or derogations from those time limits must be interpreted restrictively and, secondly, that only the existence of new and material facts may justify the submission of a request seeking re-examination of a decision that was not challenged within the time limits, the General Court observed, in paragraph 78 of that judgment that “when the applicant submits, in her first plea, that the interim probation report has defamatory content and that the presence of that report in her personal file constitutes an irregularity, she seeks to challenge the definitive assessments of the competent appointing authority as regards the legality of the interim probation report’s presence in her personal file”.
17.      As regards the appraisal reports drawn up in the 2015 and 2016 exercises, after noting, in paragraph 80 of the judgment under appeal, that an appraisal report, for the purposes of Article 43 of the Staff Regulations, is a challengeable act against which an action may be brought
in accordance with Article 91 of the Staff Regulations, after the lodging of a complaint, as referred to in Article 90(2) of the Staff Regulations, the General Court found, in paragraph 81 of that judgment, that, in the present case, the appellant had not brought an action against those appraisal reports and that by her arguments, she was seeking to challenge the assessments in those appraisal reports, which had become definitive.
18.      In paragraph 82 of the judgment under appeal, the General Court concluded that, in those circumstances, the appellant’s arguments directed against the presence of the interim probation report in her personal file within the meaning of Article 26 of the Staff Regulations and against the appraisal reports drawn up in the 2015 and 2016 exercises were inadmissible since she was seeking to challenge acts which had become definitive.
19.      According to the General Court, neither the decision of the European Data Protection Supervisor (EDPS) of 14 December 2017 on the appellant’s complaint of 10 October 2016 concerning the length of the procedure for processing her request for access to her medical file and the failure to include the note of Professor D, a psychologist external to the Commission, in her medical file, nor the referral, in June 2017, to the European Ombudsman of a complaint relating to the presence of the interim probation report in her personal file, relied on by the appellant, enabled that conclusion to be called into question. Firstly, as is apparent from paragraph 79 of the judgment under appeal, the EDPS’s decision did not concern the presence of the interim probation report in the appellant’s personal file and therefore did not justify the re-examination of Decision R/730/15. Secondly, as regards the referral to the Ombudsman, the General Court stated, in paragraph 83 of the judgment under appeal, that such a referral could not have the effect of resetting the time limit for bringing an action once the time limit had expired and could not, in any instance, be regarded as a new substantial fact. The same is necessarily true, according to the General Court, for any recommendations made by the Ombudsman following an inquiry resulting from a complaint, such recommendations, whatever they prescribe, being merely the consequence of that complaint.
20.      It is apparent from the grounds of the judgment under appeal set out in the preceding paragraph and in particular from paragraphs 79 and 83 of that judgment that, contrary to what the appellant claims, the General Court took into account all the facts which occurred after the adoption of Decision R/730/15, concluding that they did not constitute new and substantial facts such as to reset the time limits for bringing proceedings laid down in Articles 90 and 91 of the Staff Regulations.
21.      Without challenging the grounds on which the General Court’s legal classification of those facts is based, the appellant confines herself, in her appeal, to repeating arguments already put forward at first instance concerning, in particular, the link allegedly existing between the decision of the EDPS and the removal of the interim probation report from her personal file in January 2018. Not only did the General Court expressly rule out the existence of such a link, in paragraph 79 of the judgment under appeal, on the ground that that decision concerned only the rectification of the appellant’s medical file and not the interim probation report and its presence in her personal file, but, in paragraph 106 of that judgment, it also rejected the appellant’s argument alleging that the content of that report was irregular on the ground that the report contained information linked to the content of her medical file. By repeating those arguments, the appellant therefore seeks, in reality, to obtain, on that point, a mere re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake in the context of an appeal (order of 12 November 2020, Lazarus v Commission, C‑85/20 P, not published, EU:C:2020:912, paragraph 39 and the case-law cited).
22.      The appellant also submits that the General Court did not take into account, as a “new fact”, the removal of the interim probation report from her personal file in January 2018. In that regard, it must be noted that the fact that the Commission agreed to remove that report, following the request made to that effect by the appellant in December 2017, does not, contrary to what the appellant seems to be claiming, mean that it acknowledged that the presence of that report in the file in the period preceding its removal was illegal, nor that it acknowledged that that report was based on manifest errors of assessment or that it was the expression of the psychological harassment of the appellant by her hierarchical superiors, as the appellant had maintained in her first request for assistance under Article 24 of the Staff Regulations which led to the adoption of Decision R/730/15. Indeed, it is apparent from paragraph 183 of the judgment under appeal that, according to the Commission, the appellant’s concerns as regards the interim probation report and the state of anxiety she experienced in relation to her reputation and her professional future had been factors taken into account to decide, on grounds of expediency, to withdraw that report from the appellant’s personal file.
23.      Therefore, even on the assumption that, by declaring inadmissible the appellant’s arguments concerning the presence of the interim probation report in her personal file and the effect of that report on the content of the appraisal reports drawn up in the 2015 and 2016 exercises, the General Court failed to assess whether the removal of the interim probation report from that file could constitute a new and substantial fact such as to reset the time limits for bringing actions laid down in Articles 90 and 91 of the Staff Regulations, the appellant’s complaint would be, in any event, manifestly unfounded inasmuch as that complaint relies, as support for the existence of new and substantial facts, on mere assumptions as regards the existence of a direct link (i) between that removal and the involvement of the EDPS and the Ombudsman and (ii) between that removal and the alleged acknowledgement by the appointing authority of the unlawful nature of the interim probation report.
24.      In those circumstances, the first part of the first ground of appeal must be rejected as being, in part, manifestly inadmissible and, in part, manifestly unfounded.
Second part of the first ground of appeal
25.      The second part of the first ground of appeal is directed against the part of paragraph 160 of the judgment under appeal in which the General Court, after finding that the first plea for annulment had to be upheld and the decision not to promote the appellant annulled, held that there was no need to examine the other complaints raised by the appellant in the first plea for annulment or the second plea for annulment. The appellant submits that, by failing to examine all the complaints and pleas that she had raised before the General Court, the General Court deprived her of her right to effective judicial protection.
26.      It should be noted that the appellant does not put forward, in support of that part, any independent line of argument, but merely refers to the arguments raised in the context of the first part of the first ground of appeal. According to settled case-law of the Court, 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, if it is not to be found inadmissible, indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of that appeal (judgment of 21 October 2020, ECB v Estate of Espírito Santo Financial Group, C‑396/19 P, not published, EU:C:2020:845, paragraph 24 and the case-law cited). Since it does not contain any argument seeking specifically to identify the error of law allegedly vitiating the judgment under appeal, the second part of the first ground of appeal does not meet that requirement and must therefore be rejected as manifestly inadmissible (see, to that effect, order of 26 March 2020, Magnan v Commission, C‑860/19 P, not published, EU:C:2020:227, paragraph 27 and the case-law cited).
27.      It follows that the first ground of appeal is, in any event, in part, manifestly inadmissible and, in part, manifestly unfounded.
Admissibility of the second head of claim in the appeal
28.      By her second head of claim, the appellant asks the Court to re-examine her claim for compensation. In support of that head of claim, the appellant relies on the second ground of appeal.
29.      It should be noted that the second ground of appeal is directed at only the part of the judgment under appeal relating to the appellant’s claim for compensation in respect of the non-material damage which she claims to have suffered, namely paragraphs 176 to 187 of that judgment and point 2 of its operative part, by which the General Court fixed at EUR 2 000 the sum which the Commission was required to pay to the appellant in respect of that damage.
30.      On the other hand, in her second ground of appeal, the appellant does not put forward any complaint directed against the grounds of the judgment under appeal in which the General Court rejected her claim for compensation in respect of the material damage that she claims to have suffered, contained in paragraphs 163 to 175 of that judgment.
31.      It follows that, in so far as it seeks reconsideration of that claim, the second head of claim of the appeal must be declared manifestly inadmissible, in accordance with the case-law referred to in point 26 of this position.
The second ground of appeal
32.      By the second ground of appeal, the appellant criticises the General Court for fixing the amount of compensation in respect of non-material damage without taking into account, firstly, the “significant impact” of the irregularity found, which is much more than a mere technical irregularity, and, secondly, the content of the interim probation report, which depicted her as an undesirable person in the eyes of her hierarchical superiors, thereby eliminating any prospect of a professional career. On the basis of those factors, the appellant asks the Court to award her compensation in respect of non-material damage amounting to EUR 20 000.
33.      It should be recalled that, in the particular context of actions for damages, the Court has repeatedly held that once the General Court has found the existence of damage, it alone has jurisdiction to assess, within the confines of the claim, the means and extent of compensation for the damage. However, in order for the Court of Justice to be able to review the judgments of the General Court, those judgments must be sufficiently reasoned and, as regards the assessment of the damage, indicate the criteria taken into account for the purposes of determining the amount decided upon (judgment of 13 December 2018, European Union v Gascogne Sack Deutschland and Gascogne, C‑138/17 P and C‑146/17 P, EU:C:2018:1013, paragraph 60 and the case-law cited).
34.      In the present case, it is apparent from paragraphs 179 to 185 of the judgment under appeal that, in its assessment of the non-material damage suffered by the appellant, the General Court took into consideration both the content of the interim probation report and the state of anxiety and uncertainty experienced by the appellant as a result of that report having been taken into account in the 2017 promotion procedure.
35.      Firstly, in paragraph 180 of the judgment under appeal, the General Court referred to paragraphs 124 to 160 of that judgment, which include paragraph 147, according to which the General Court found that the “the interim probation report contains harsh criticisms regarding the efficiency, ability, performance and conduct of the applicant in the first unit to which she had been posted”, that “[t]he language of those criticisms targets in particular the applicant’s personality, not her professional competences” and that those criticisms “go beyond those objectively necessary for the purposes of assessing whether there are difficulties in the service and justifying an administrative decision to transfer her to another unit”.
36.      Next, in paragraph 181 of the judgment under appeal, the General Court found that the appellant was placed in a “state of anxiety and uncertainty as to her reputation and professional future” and that that state followed directly from the unlawful conduct of the Commission. In paragraph 182 of the judgment under appeal, the General Court stated that that conduct had caused the appellant “particular non-material damage which cannot be adequately compensated for by the mere annulment of the decision not to promote her”.
37.      It follows that the appellant’s complaint that the General Court, when determining the amount of compensation in respect of non-material damage, did not take into account the content of the interim probation report and the impact of that report on her perception with regard to her reputation and her professional future is manifestly unfounded. Moreover, it was in a similar vein that the General Court held in paragraph 184 of the judgment under appeal that the non-material damage suffered by the appellant was limited by the fact that she had been promoted to grade AD 6 in the first promotion exercise following the 2017 promotion exercise, namely the 2018 promotion exercise.
38.      In those circumstances, the Court of Justice cannot substitute its assessment for that of the General Court in determining the extent of the reparation for the damage suffered by the appellant by fixing, as requested by the appellant, an amount by way of compensation in respect of non-material damage higher than that set out in point 2 of the operative part of the judgment under appeal.
39.      It follows that the second ground of the appeal must be rejected as being manifestly unfounded.
40.      It follows from all the foregoing considerations that the appeal must be dismissed in its entirety as being, in part, manifestly inadmissible and, in part, manifestly unfounded, without it being necessary to examine the appellant’s requests for measures of organisation of procedure and measures of inquiry made in the context of the third head of claim in the appeal.’
5        For the same reasons as those given by the Advocate General, the appeal must be dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded.
Costs
6        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 was adopted before the appeal was served on the other party to the proceedings and, therefore, before the latter could have incurred costs, it is appropriate to decide that the appellant is to bear her own costs.
On those grounds, the Court (Seventh Chamber) hereby orders:
1.      The appeal is dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded.
2.      XH shall bear her own costs.
Luxembourg, 16 March 2021.
A. Calot Escobar
A. Kumin
Registrar
President of the Seventh Chamber
*      Language of the case: English.