JUDGMENT OF THE COURT (Eighth Chamber)

17 December 2020 ( )

(Appeal – Civil service – Members of the contract staff – European Union Agency for Fundamental Rights (FRA) – Fixed-term contract – Decision not to renew – New decision adopted following an annulment by the General Court – Irregularities allegedly committed during the implementation of the General Court judgment)

In Case C‑601/19 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 7 August 2019,

BP, represented by E. Lazar, avocate,

appellant,

the other party to the proceedings being:

European Union Agency for Fundamental Rights (FRA), represented by M. O’Flaherty, acting as Agent, and by B. Wägenbaur, Rechtsanwalt,

defendant at first instance,

THE COURT (Eighth Chamber),

composed of N. Wahl (Rapporteur), President of the Chamber, F. Biltgen and L.S. Rossi, Judges,

Advocate General: P. Pikamäe,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By her appeal, BP asks the Court of Justice to set aside the judgment of the General Court of the European Union of 11 July 2019, BP v FRA (T‑888/16, not published, EU:T:2019:493; ‘the judgment under appeal’), whereby the General Court dismissed her action seeking (i) annulment of the decision of the European Union Agency for Fundamental Rights (FRA) of 4 April 2016 not to renew her contract as a member of the contract staff (‘the contested decision’), adopted as a result of the implementation of the judgment of 3 June 2015, BP v FRA (T‑658/13 P, EU:T:2015:356), and (ii) compensation for the harm which she had allegedly suffered.

Background to the dispute

2 The background to the dispute was set out by the General Court in paragraphs 1 to 60 of the judgment under appeal in the following terms:

‘Facts and procedure before the Civil Service Tribunal

1 The applicant, BP, was recruited on 1 September 2007 by [FRA] as a member of the contract staff for a term of 2 years, as an assistant in the Administration Department’s Finance and Procurement team.

2 Her contract was renewed for a period of 3 years, expiring on 31 August 2012.

3 A career development report (“the CDR”) was drawn up for the applicant in respect of 2009 and 2010.

4 During the months of March 2010, November 2010, August 2011 and September 2011, and at an unspecified date in 2012, the applicant drew to the attention of the FRA Director, under Article 22a of the Staff Regulations of Officials of the European Union (“the Staff Regulations”), various possible irregularities which she claimed had occurred in FRA’s public procurement procedures and which she had come across in the course of her duties.

5 In the CDR relating to the year 2010, the applicant received the same assessment points as those in the 2009 CDR. The 2011 CDR was not put before the Civil Service Tribunal.

6 The appraisal of the applicant in respect of 2009 and 2010 was accompanied by negative comments made by the reporting officer. Thus, in the 2009 CDR, the reporting officer stated, inter alia, with regard to efficiency, that the applicant’s poor personal relations with other staff members had had an impact on her efficiency during the appraisal period and recommended that she should strive continuously to overcome the situation. Regarding conduct in the service, the reporting officer also referred to the applicant’s poor personal relations with colleagues.

7 The applicant subsequently lodged a complaint, under Article 90(2) of the Staff Regulations, in which she sought, in particular, a review of the points awarded to her and the removal of the reporting officer’s comments under the three headings of the 2009 CDR.

8 On 4 March 2011, the FRA Director, acting as the authority authorised to conclude contracts of employment (“the AACC”), first, decided to increase by half a point the mark for efficiency, which was changed to 6.5 points and, secondly, amended the comments under the heading “Conduct in the service” as follows:

“During the reporting period the jobholder had good working relationships with [FRA’s] staff from other departments but she had some difficulties to deal with some colleagues within her department. Efforts have been made by both the hierarchy and the jobholder to resolve the situation in a constructive way. A continuous effort should be dedicated to overcome the situation.”

9 As regards the 2010 CDR, the reporting officer stated, in relation to efficiency, that the continuation of the applicant’s poor personal relations with other staff members affected her efficiency during the appraisal period and recommended again that she strive continuously to overcome the situation. With regard to conduct in the service, the reporting officer wrote the following:

“During the reporting period the jobholder had some difficulties to deal with some of her colleagues. Efforts have been dedicated by the hierarchy to resolve her frictions with other members of the staff in a constructive way. The situation continued to impact on the performance of the jobholder during the appraisal period. A continuous effort should be dedicated to overcome the situation.”

10 The applicant responded to the content of the 2010 CDR and made her disagreement known to the AACC by letters of 18 April and 4 May 2011 and by email of 15 May 2011 to the Director, by which she also requested that the matter be referred to the Joint Evaluation Committee. In his response of 29 July 2011, the FRA Director rejected all the applicant’s arguments.

11 The applicant did not challenge the 2009 and 2010 CDRs before the European Union judicature.

12 In the course of the procedure for renewing contracts for members of the contract staff, established by the FRA Director’s Decision 2009/13 of 29 May 2009 (“Decision 2009/13”), the applicant met her head of department on 30 January 2012 and, the following day, the applicant’s lawyers forwarded her letter of motivation to the FRA Director, in which she expressed her desire to have her contract renewed.

13 On 21 February 2012, the applicant received by email an invitation to meet the FRA Director and the head of the Human Resources and Planning department (“the Human Resources department”) on 27 February 2012, which she initially accepted but which she subsequently requested be postponed until 28 February because, inter alia, she wanted her lawyer to attend. The meeting that was postponed to 28 February did not take place because the applicant took sick leave.

14 By email of 24 February 2012, the applicant’s head of department forwarded his opinion on the renewal of the applicant’s contract to the FRA Director (“the opinion of 24 February 2012”). In that opinion, structured around 10 points, the head of department highlights certain information relating to a recent reorganisation of the department, which transferred tasks to colleagues in other departments, and to the main features of the applicant’s CDRs for the previous few years.

15 In that regard, the head of department states, inter alia, that the applicant’s CDRs for 2009 and 2010 were below the average for staff members; that, in 2011, the situation was unchanged; that the applicant had problems with her colleagues, which had an impact on her performance, and that, despite efforts made by her line management, the Human Resources department and the FRA Director, and despite also the training given to the applicant, the situation remained unchanged. The head of department also states that FRA had twice offered the applicant, in her own interests as much as in the FRA’s interests, reassignment to another department, which she refused.

16 By letter of 27 February 2012, sent to the applicant on the same date, the FRA Director informed the applicant that, having studied her letter of motivation and the opinion of the head of department, he had taken a decision not to renew her contract on its expiry on 31 August 2012 (“the initial decision not to renew”). The opinion of the head of department was annexed to that letter.

17 The reasons given by the FRA Director for the decision not to renew the applicant’s contract were, first, FRA’s limited availability of budgetary resources, which obliged him to reconsider the allocation of posts to members of the contract staff, as was apparent from the opinion of the applicant’s head of department and, secondly, the applicant’s efficiency and conduct in the service, both affected by her poor personal relations with colleagues, a situation which had not improved despite attempts by the hierarchy to resolve friction in a constructive way, in particular by reassignment to another department, which the applicant had refused.

18 The letter of 27 February 2012 contained a second decision by which the applicant was reassigned, in the interests of the service, with immediate effect and for the last 6 months of her contract, to the Communication and Awareness Raising department (“the reassignment decision”).

19 After lodging an unsuccessful complaint against the decision not to renew and the reassignment decision, the applicant brought an action before the European Union Civil Service Tribunal, seeking annulment of those decisions and compensation for the damage allegedly suffered as a result of those decisions. That action was registered as Case F‑38/12.

20 The Civil Service Tribunal dismissed the action in its entirety by judgment of 30 September 2013, BP v FRA (F‑38/12, EU:F:2013:138; “the original judgment”).

Facts and procedure before the General Court

21 The original judgment was the subject of an appeal before the General Court.

22 By its judgment of 3 June 2015, BP v FRA (T‑658/13 P, EU:T:2015:356; “the judgment on appeal”), the General Court annulled the decision of 27 February 2012 whereby the FRA Director in post at that time decided not to renew the applicant’s contract as a member of the contract staff.

23 The General Court, in essence, held that, contrary to the finding of the Civil Service Tribunal, the appellant’s right to be heard had not been observed, since she had not been heard by the AACC – namely the FRA Director – before the adoption of the initial decision not to renew her contract, but by the head of department only. It followed that she had not been able to submit comments, before the adoption of that decision, on all the factors taken into consideration by the AACC when adopting that decision, including, in particular, the opinion of 24 February 2012. The appeal was dismissed as to the remainder.

Measures taken by FRA following the judgment on appeal

24 By email of 11 June 2015, the applicant expressed her point of view on the implementation of the judgment on appeal.

25 By email of 26 June 2015, FRA’s external legal counsel contacted the applicant’s legal representative with regard to the implementation of the judgment on appeal.

26 By letter of 30 June 2015, the applicant’s legal representative informed FRA’s external legal counsel that the applicant wished to be informed of the measures FRA intended to take in order to implement the judgment on appeal, and that the applicant should be informed directly.

27 By letter of 2 July 2015, FRA informed the applicant that its external legal counsel would inform her of the measures taken to implement the judgment on appeal.

28 In her reply of 3 July 2015 to FRA’s external legal counsel, the applicant stated, inter alia, that:

– she ought to be given a 6-month contract;

– her former head of department and former Interim Director, who wrote the opinion on the renewal of her contract for the FRA Director, had a conflict of interest;

– the 2009 and 2010 CDRs were not final;

– she was entitled to compensation for the “material damage” suffered;

– she had lost the chance of obtaining a permanent contract.

29 By letter of 28 July 2015, sent by both registered post and email, FRA’s external legal counsel:

– informed the applicant of the measures for the implementation of the judgment on appeal;

– provided her with a copy of the head of department’s opinion, which he had received from FRA;

– requested that she provide her written comments by no later than 7 August 2015;

– requested that she indicate whether she would be available on given dates in August 2015 in order to be heard by the acting head of the Human Resources department.

30 The registered letter was returned to FRA’s external legal counsel, as it could not be delivered to the address provided by the applicant.

31 By email of 29 July 2015, FRA’s external legal counsel again supplied the applicant with a copy of the opinion of 24 February 2012.

32 By letter of 31 July 2015, the applicant confirmed, inter alia, that she was in possession of the head of department’s opinion and that she had commented on that opinion by email of 11 June 2015 and in subsequent correspondence.

33 By letter of 4 August 2015, FRA’s external legal counsel informed the applicant that (i) she would be heard by the new Director, following his appointment; (ii) there was no 2011 CDR, since the applicant had not requested one at the time; and (iii) her 2009 and 2010 CDRs did not include annexes. A copy of the “Multi-annual Staff Policy Plan 2012-2014” … was enclosed with that letter. The applicant was also informed that she would be contacted again when the new Director was in a position to hear her.

34 The applicant replied by two emails of 4 August 2015.

35 By further email of the same date, the applicant requested that the author of the opinion of 24 February 2012, who was the Interim Director as at 4 August 2015, “take the necessary measures for the execution of the judgment”.

36 By email of 7 August 2015, the applicant submitted her written comments to the Interim Director on his opinion, claiming that he had a conflict of interest. Moreover, she requested that she be given documents on the “reorganisation” of the tasks of the “Finance and Procurement” team, “lean management” and “budgetary cuts”.

37 By email of 16 August 2015, the applicant informed FRA’s external legal counsel that she would “lodge a complaint with all four Bar associations (Hamburg, Brussels, Newcastle and Washington)”, because FRA’s external legal counsel had failed to reply to her requests of 3 and 4 August 2015 seeking confirmation as to whether he had dealt with her “applications to access FRA documents” and whether he had “worked on the reply to ECJ, dealing with [her] application under Regulation [No] 1049/2001 [of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43)]”.

38 By email of 18 October 2015, the applicant requested that she be “inform[ed] about the date for starting the implementation of [the judgment on appeal]”.

39 By letter of 19 October 2015, FRA’s external legal counsel informed the applicant that the Director would be taking up his duties on 16 December 2015, and enquired as to whether the applicant would be available for a meeting at some point after that date.

40 The applicant replied by email of 29 October 2015, confirming that she would attend the meeting with the Director in December 2015.

41 FRA’s external legal counsel replied by letter of 4 November 2015, informing the applicant that the Director would be fully apprised of the case prior to the meeting of December 2015.

42 By emails of 5 and 25 November 2015, the applicant confirmed that she was available for the meeting with the Director on 18 December 2015.

43 By email of 6 December 2015, the applicant requested, inter alia, the handover to the Director of the correspondence she had had with FRA and its external legal counsel “in relation to the execution of the judgment [on appeal]”.

44 On 18 December 2015, the new Director heard the applicant at a meeting in Vienna (Austria).

45 By email of 21 December 2015, the applicant submitted further written comments on the opinion of 24 February 2012.

46 By email of 22 December 2015, sent to the new FRA Director, the applicant submitted comments on FRA’s recruitment procedure.

47 By email of 3 January 2016, the applicant submitted comments on the draft minutes of the hearing of 18 December 2015.

48 The final version of the minutes of that hearing was signed on 15 January 2016.

49 On 29 January 2016, the FRA notified the applicant of the new Director’s draft decision not to renew her employment contract.

50 On 3 February 2016, the applicant lodged a request, within the meaning of Article 90(1) of the Staff Regulations, to begin CDRs for the years 2011 and 2012, and made statements as to why she had not been able to bring legal action with regard to her 2009 and 2010 CDRs after her complaints lodged under Article 90(2) of the Staff Regulations had been rejected in 2009.

51 By email of 6 February 2016, the applicant submitted the first of a series of comments on the draft decision of 29 January 2016.

52 By letter of 22 February 2016, the applicant submitted a further series of comments on the draft decision.

53 By email of 24 February 2016, the applicant stated that “as mentioned in [her] comments … the case files F‑38/12 and T‑658/13 P [were] an integral part of those comments” and attached the case file in Case T‑658/13 P, BP v FRA, to that email.

54 By email of 25 February 2016, the applicant informed the new FRA Director that the draft decision contained defamatory statements concerning her, and she attached to the email several items of evidence which, she claimed, contradicted the allegations that she deemed unfounded.

55 On 4 April 2016, the new Director adopted the decision not to renew the applicant’s contract (“the contested decision”) and notified the applicant of that decision on 21 April 2016.

56 In that decision, the new FRA Director justified the non-renewal of the applicant’s contract by weighing up, on the one hand, the interests of the service, in the light of the negative opinion given by her head of department on 24 February 2012, her relative performance over a period of 3 years preceding the initial decision not to renew and budgetary aspects requiring, within FRA, the temporary engagement of an archivist and, on the other hand, the interests of the applicant.

57 On 18 May 2016, the applicant lodged a complaint, within the meaning of Article 90(2) of the Staff Regulations, which she supplemented on 23 June 2016, seeking (i) the withdrawal of the contested decision; (ii) her reinstatement to her previous position; and (iii) compensation for the damage suffered.

58 By decision of 16 September 2016, the new Director expressly rejected the complaint.

59 By letter of 15 November 2016, the new FRA Director wrote to the applicant regarding the question that she raised in relation to her 2009, 2010 and 2011 CDRs.

60 By his letter of 7 December 2016, the new Director reminded the applicant that her CDRs for 2009 and 2010 had become final, as confirmed by paragraph 23 of the initial judgment and paragraph 14 of the judgment on appeal.’

The procedure before the General Court and the judgment under appeal

3 By application lodged at the Court Registry on 8 December 2016, the appellant brought an action pursuant to Article 270 TFEU seeking, in essence, first, the annulment of the contested decision and, secondly, compensation for various losses that she had suffered.

4 By letter lodged at the Court Registry on the same day, the appellant submitted an application for anonymity, which the General Court granted by decision of 8 February 2017.

5 As the President of the Fifth Chamber of the General Court was unable to sit, he designated another Judge to replace him and complete the Chamber, pursuant to Article 17(2) of the Rules of Procedure of the General Court. As the Judge-Rapporteur was unable to sit, the President of the General Court reallocated the case to another Judge-Rapporteur and designated another Judge to complete the Chamber.

6 By the judgment under appeal, the General Court dismissed the action in its entirety and ordered the appellant to pay the costs.

Forms of order sought by the parties before the Court of Justice

7 By her appeal, the appellant claims that the Court should:

– set aside the judgment under appeal and, consequently,

– order FRA to annul the contested decision;

– order FRA to pay compensation for the material and non-material damage suffered as a result of the unlawfulness of the contested decision;

– order FRA to pay compensation for the material and non-material damage suffered as a result of FRA’s failure to adopt lawful rules for the appraisal and reclassification of contractual agents and for the renewal of employment contracts, constituting failure to act within the meaning of Article 265 TFEU;

– rule, under Article 277 TFEU, that the rules for the appraisal and reclassification of contractual agents and Decision 2009/13 were adopted following an unlawful procedure and by an authority without competence;

– request to the General Court to exercise its unlimited jurisdiction to ensure the effectiveness of its decision;

– order FRA to pay interest on any amount awarded; and

– order FRA to pay the costs in their entirety, even if the appeal is dismissed.

8 FRA contends that the Court should:

– dismiss the appeal;

– in the alternative, rule on the basis of the forms of order sought by the defendant at first instance; and

– order the appellant to pay the costs of the proceedings at first instance and of the appeal.

The appeal

9 In support of her appeal, the appellant puts forward five grounds of appeal.

10 In her reply, the appellant stated that she also wished to put forward an additional ground of appeal involving a matter of public policy, alleging an irregularity in the composition of the Chamber of the General Court. She asks the Court of Justice to take into consideration the fact that the Fifth Chamber of the General Court was composed in a way that did not permit, first, an effective vote, since, according to her, the Judge acting as President also acted as Judge-Rapporteur, in breach of Article 21(4) of the Rules of Procedure of the General Court and, secondly, the referral of the case to a Chamber sitting in extended composition, pursuant to Article 28(1) of those rules of procedure.

The first ground of appeal

Arguments of the parties

11 The first ground of appeal alleges, first, manifest error by the General Court in the assessment of the second plea in law put forward at first instance, alleging that the rules adopted by FRA concerning appraisal and reclassification of its members of staff and renewal of contracts of employment were unlawful, distortion of the facts and evidence and infringement of the obligation to state reasons and of the right to be heard and, secondly, manifest error by the General Court in the assessment of the appellant’s fourth head of claim, seeking a finding that the rules adopted by FRA were unlawful concerning the appraisal and reclassification of its members of staff and renewal of employment contracts, failure to respond to the third head of claim, seeking compensation for the damage suffered as a result of that unlawfulness, and infringement of the right to an effective remedy.

– The first part of the first ground of appeal concerning the assessment of the second plea in law put forward at first instance

12 The first part of the first ground of appeal, which relates to paragraphs 294 to 310 of the judgment under appeal, is directed against the assessment by the General Court of the second plea in law put forward at first instance by the appellant and its third and fourth heads of claim, alleging the unlawfulness of FRA’s general rules applicable to the appraisal and reclassification of its members of staff and Decision 2009/13, which are governed by Articles 43, 45, 79 and 110 of the Staff Regulations, respectively.

13 By an initial set of arguments, concerning paragraphs 294 to 298 of the judgment under appeal, the appellant submits, in essence, that the General Court made a manifest error of assessment and distorted the facts and evidence submitted to it, in finding, in paragraphs 296 and 297 of the judgment under appeal, that ‘in so far as concerns the 2009 and 2010 CDRs, which were admittedly taken into account by FRA in support of the adoption of the contested decision, even if it were established that the rules on appraisal were unlawful, that cannot entail the annulment of the CDRs, as those reports are final with regard to the applicant’ with the result that ‘the lawfulness of the opinion of 24 February 2012, the draft decision and the contested decision cannot be disputed, inasmuch as they refer to the 2009 and 2010 CDRs’.

14 The appellant thus maintains that, under Article 19(1) TEU, which entails an obligation for the General Court to examine the facts and to raise of its own motion any matter of public policy, the General Court should have, in the first place, examined the alleged unlawfulness of the general rules relating to appraisal, then, in the second place, if necessary, the lawfulness of the opinion of 24 February 2012, the draft decision and the contested decision. She submits, in that regard, that those rules are unlawful because of the breach by FRA of essential procedural requirements governing their adoption and in particular because of the failure to consult the Staff Committee, the failure to consult and absence of prior agreement of the European Commission, laid down in Article 110 of the Staff Regulations, absence of a right to an internal appeal before lodging a complaint, as provided for in Article 43 of the Staff Regulations, and the lack of competence of the author of those rules. She submits that, in accordance with Article 277 TFEU, she was entitled, in her action, to plead the illegality of the general appraisal rules, in so far as those rules had been used as the legal basis for the contested decision, as she had also done during the pre-litigation procedure, but that the evidence that she had submitted in support of that plea was not examined by the General Court.

15 By a second set of arguments, concerning paragraphs 299 to 301 of the judgment under appeal, the appellant submits that the General Court erred in law and distorted the clear sense of the facts and evidence by considering, in paragraph 300 of the judgment under appeal, that the rules on reclassification did not form the legal basis of the contested decision and by holding, consequently, in paragraph 301 of the judgment under appeal, that the complaint based on the unlawfulness of those rules was ineffective. She notes that she did not at any stage maintain that the rules on reclassification formed the legal basis for the contested decision, but that she merely pointed out that the unlawfulness of those internal rules was a matter of public policy, which must be raised by the General Court of its own motion, under Article 19(1) TEU, as she had also stated in her fifth head of claim.

16 By a third set of arguments, relating to paragraphs 303 to 308 of the judgment under appeal, the appellant submits that the assessment, by the General Court, of her arguments alleging the unlawfulness of Decision 2009/13 is vitiated by an error of analysis, distortion of the facts and evidence, infringement of the obligation to state reasons and an infringement of the right to be heard.

17 She notes, first, that contrary to what was stated by the General Court in paragraph 303 of the judgment under appeal, FRA did not dispute that those rules were adopted by an authority without competence to do so and that the Staff Committee was not consulted. Secondly, she disputes the General Court’s conclusion, in paragraphs 305 and 306 of the judgment under appeal, that she had not substantiated to the requisite legal standard her arguments that the rules on renewal of contracts were adopted following an unlawful procedure and by an authority without competence, referring in that regard, to the evidence that she submitted in her application, namely, Annexes A.20 and A.28. She states that, in accordance with settled case-law, pleas alleging lack of competence on the part of the author of an act and infringement of essential procedural requirements are pleas in law which the General Court must consider of its own motion.

18 Not only had the General Court not examined of its own motion those key points, but it had, in addition, imposed a burden of proof on the appellant which it was impossible to discharge concerning consultation of FRA’s Staff Committee before the adoption of Decision 2009/13. The appellant notes, in response to the argument advanced in that regard, that the General Court merely held, in paragraph 308 of the judgment under appeal, that the preamble to that decision stated that the Staff Committee had been consulted. She notes, however, that FRA neither challenged her argument nor produced evidence that that committee had indeed been consulted, by producing, for example, the Staff Committee model of consultation that she had included as Annex A.35 to her application. She concluded from this that the rejection by the General Court of her submission was vitiated by an error of law and a distortion of the facts and evidence, a distortion which was evident without it being necessary to conduct a fresh examination of the facts and evidence. The General Court’s assessment implied that it was for her to provide proof that FRA’s Staff Committee was not consulted, by producing a document that was never drafted and which never existed, and thus to provide proof of a negative (probatio diabolica), which is incompatible with the right of access to a court and to effective review by the courts.

19 FRA disputes all the arguments put forward by the appellant.

– The second part of the first ground of appeal, concerning the assessment of the fourth head of claim and the failure to rule on the third head of claim

20 By the second part of the first ground of appeal, which concerns paragraph 76 of the judgment under appeal, the appellant submits that the General Court, first, erred in the assessment of the fourth head of claim, seeking a finding that FRA’s general rules applicable to the appraisal and reclassification of its members of staff and the renewal of contracts of employment were unlawful, secondly, failed to rule on her third head of claim, seeking to establish the non-contractual liability of the European Union on account of the absence of a lawful regulatory framework, and, thirdly, and as a consequence, infringed the right to effective judicial protection.

21 The appellant notes that her fourth head of claim was clearly a plea of illegality in respect of the rules adopted by FRA concerning the appraisal and reclassification of contract staff and Decision 2009/13 and that she was justified in raising a plea of illegality in her action against the contested decision, since she did not have standing to challenge those rules and that decision directly and she could not challenge the CDRs, as they were not finalised. She states that, contrary to the findings made by the General Court in paragraph 76 of the judgment under appeal, she relied on Article 277 TFEU not to challenge the lawfulness of the contested decision, but to obtain a finding that the rules for appraisal and reclassification and Decision 2009/13 concerning FRA’s initial non-renewal decision of 27 February 2012, at issue in Case F‑38/12, did not apply, which was indeed within the scope of that plea of illegality.

22 She infers from this that the General Court erred in law in holding that her fourth head of claim could not be assessed independently, failed to find that it was incidental and failed to examine her third head of claim, alleging FRA’s failure to adopt lawful rules, which came under Article 266 TFEU. She adds that the General Court itself had doubts as to the lawfulness of Decision 2009/13, since it adopted measures of organisation of procedure inviting FRA to state whether it had based the contested decision on Decision 2009/13. FRA replied that that was the case.

23 FRA maintains that the appellant’s submissions are manifestly unfounded.

Findings of the Court

24 The two parts of the first ground of appeal, which largely overlap, must be examined together.

25 By those parts of the first ground of appeal, the appellant, in essence, disputes the rejection by the General Court of the plea that the general rules adopted by FRA concerning the appraisal and reclassification of its members of staff and Decision 2009/13, which she raised in the context of her second plea in law, were unlawful. She argues specifically, in essence, that, since it is under those rules that the 2009 and 2010 CDRs were adopted and that it was by reference to those CDRs that the contested decision itself was adopted, the unlawfulness of those rules directly affect the lawfulness of those CDRs and indirectly affected the lawfulness of the contested decision. The finding of that unlawfulness should therefore have led the General Court to annul that decision and the General Court erred in considering, in paragraph 76 of the judgment under appeal, that her fourth head of claim could not be examined independently.

26 In accordance with settled case-law, Article 277 TFEU gives expression to a general principle conferring upon any party to proceedings the right to challenge, for the purpose of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous acts of the institutions which form the legal basis of the decision which is being attacked, if that party was not entitled to bring a direct action challenging those acts by which it was thus affected without having been in a position to ask that they be declared void (see, to that effect, judgments of 6 March 1979, Simmenthal v Commission, 92/78, EU:C:1979:53, paragraph 39, and of 19 January 1984, Andersen and Others v Parliament, 262/80, EU:C:1984:18, paragraph 6).

27 It follows from that case-law that the admissibility of the plea of illegality of an act is necessarily subject to the condition that the applicant who relies on that plea did not have the right to bring a direct action for the annulment of that act.

28 Furthermore, since the purpose of Article 277 TFEU is not to allow a party to contest the applicability of any act of general application in support of any action whatsoever, the act the legality of which is called in question must be applicable, directly or indirectly, to the issue with which the action is concerned (judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 68 and the case-law cited).

29 Thus, in an action for annulment brought against individual decisions, the Court has accepted that the provisions of an act of general application that constitute the basis of those decisions or that have a direct legal connection with such decisions may legitimately form the subject matter of an objection of illegality (judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 69 and the case-law cited).

30 By contrast, the Court has held that an objection of illegality covering an act of general application in respect of which the individual decision being challenged does not constitute an implementing measure is inadmissible (judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 70 and the case-law cited).

31 In the present case, the three parts of the second plea in law raised at first instance by the appellant all sought an incidental finding that the general rules governing the relations between FRA and its members of staff, concerning the appraisal rules, the reclassification rules and the procedure for the renewal of contracts of employment established by Decision 2009/13, respectively, were unlawful.

32 Although the plea of illegality in respect of the appraisal rules was rejected, in essence, as inadmissible, that in respect of the reclassification rules was rejected as ineffective, and the plea of illegality in respect of Decision 2009/13 was rejected since the appellant failed to substantiate or prove the unlawfulness claimed.

33 A distinction must therefore be drawn between the arguments concerning the examination of the rules governing appraisal, reclassification and renewal of contracts, respectively.

34 In the first place, as regards the submissions relating to the unlawfulness of FRA’s rules concerning appraisal, set out in paragraphs 294 and 298 of the judgment under appeal, it is apparent from the assessment set out in those paragraphs that it is on the basis of the case-law that the admissibility of the plea of illegality is subject to the condition that the party who puts forward that plea did not have the right to bring an action for annulment that the General Court rejected, in paragraphs 296 and 297 of the judgment under appeal, at least implicitly, the plea of illegality in respect of the rules adopted by FRA concerning the appraisal of its members of staff. It held that the 2009 and 2010 CDRs were final with regard to the appellant, as she did not contest them within the period laid down in the sixth paragraph of Article 263 TFEU.

35 In the present case, it appears that, contrary to what the appellant submits, she indeed had the right to bring an action for the annulment of the CDRs which were final with regard to her, as those CDRs were treated as staff reports (see, to that effect, judgment of 22 December 2008, Gordon v Commission, C‑198/07 P, EU:C:2008:761, paragraphs 41 to 45), the adoption of which is required under Article 43 of the Staff Regulations (see, to that effect, judgments of 25 November 1976, Küster v Parliament, 122/75, EU:C:1976:161, paragraphs 9 and 10, and of 12 May 1977, Hebrant v Parliament, 31/76, EU:C:1977:79, paragraphs 6 to 10), that right to bring an action arising without the prior formality of a complaint, within the meaning of Article 90(2) of the Staff Regulations (see, to that effect, judgments of 3 July 1980, Grassi v Council, 6/79 and 97/79, EU:C:1980:178, paragraph 15; of 19 February 1981, Schiavo v Council, 122/79 and 123/79, EU:C:1981:47, paragraph 16; and of 15 March 1989, Bevan v Commission, 140/87, EU:C:1989:126, paragraph 11). As the Court has had occasion to state, in accordance with the right to effective judicial protection, officials must in any event be acknowledged as having the right to challenge their CDR on account of its content or because it has not been drawn up in accordance with the rules laid down by the Staff Regulations (judgment of 22 December 2008, Gordon v Commission, C‑198/07 P, EU:C:2008:761, paragraph 45).

36 The fact, assuming it is correct, that the appellant was ‘entitled to entertain reasonable doubt as to the admissibility of the action against her CDRs’ was not such as to invalidate the finding that she did not consider it appropriate, as she herself acknowledges, to bring such an action and that, therefore, the 2009 and 2010 CDRs became final.

37 Indeed, it could be argued that, in the present case, it is not the finding of the unlawfulness of those CDRs that the appellant criticises indirectly, but that of the rules on the basis of which those CDRs were compiled and the contested decision adopted, it being understood that, as the General Court held in paragraph 296 of the judgment under appeal, those CDRs ‘were … taken into account by FRA in support of the adoption of the contested decision’.

38 However, the appellant’s line of argument seeks, in the end, to dispute the lawfulness of the CDRs compiled for the years 2009 and 2010, which is not permissible in the circumstances in the case in point, since challenging the rules concerning appraisal is not severable from the examination of the lawfulness of the CDRs. As the General Court noted in paragraph 76 of the judgment under appeal, the lawfulness of the FRA Guidelines cannot be assessed independently from that of the 2009 and 2010 CDRs. That finding leads, aside from circumventing the applicable time limits, which are matters of public policy, to rejecting the arguments alleging, in the case in point, the unlawfulness of FRA’s rules on appraisal.

39 It follows from all of those considerations that the General Court was fully entitled to hold, in paragraph 298 of the judgment under appeal, that the arguments that those rules were unlawful had to be rejected.

40 In the second place, concerning the examination of the arguments directed against the rules on reclassification, carried out in paragraphs 299 to 301 of the judgment under appeal, the General Court was also fully entitled to reject the part of the plea relating to those rules. Since the contested decision was a decision not to renew a contract, any unlawfulness of the rules on reclassification does not appear, for the reasons given by the General Court, capable of affecting that decision’s validity. Those rules do not constitute the legal basis for the contested decision and are not linked directly or indirectly to it. Nor are they, in the event, a matter of public policy that the General Court was required to raise of its own motion.

41 In the third place, concerning the examination of the arguments alleging the unlawfulness of the rules on renewal, in particular Decision 2009/13, it must be concluded that, while the General Court could not merely reject those arguments as insufficiently substantiated, those arguments were, in any event, untenable.

42 In the present case, it appears that Decision 2009/13, which concerns the renewal of employment contracts, while not, strictly speaking, the legal basis of the contested decision, is nonetheless one of the acts constituting the legal framework in which the contested decision had to be adopted, which the General Court implicitly but necessarily accepted, in the judgment under appeal, inter alia, in paragraphs 12, 222 to 226, 228, 231, 234 and 243 of that judgment.

43 The General Court, however, rejected the argument alleging that the author of Decision 2009/13 lacked competence, in essence, as inadmissible, since the appellant did not substantiate her arguments and, in particular, as she did not indicate the legal basis which established that lack of competence. In addition, it rejected the argument based on the failure to consult the Staff Committee as being unfounded, in so far as the preamble to that decision stated the contrary and thus the applicant did not, in essence, establish the truth of that alleged failure.

44 In that regard, it is clear that the appellant, in her application before the General Court, in fact merely invoked the lack of competence of FRA’s Director to adopt Decision 2009/13, arguing that the adoption of that decision was reserved for FRA’s Management Board or Executive Board, without however indicating, as the General Court found in paragraph 306 of the judgment under appeal, the legal basis establishing the lack of competence thus invoked.

45 Nevertheless, although the argument that Decision 2009/13 was adopted by an authority without competence to do so is set out very succinctly, it could not be rejected at the outset as inadmissible in accordance with the case-law, referred to in paragraph 304 of the judgment under appeal, in accordance with which the summary of the pleas and complaints must be sufficiently clear and precise to enable the defendant to prepare its defence and the General Court to rule on the action.

46 It is thus clear from reading Article 12(6)(i) in conjunction with Article 24(3) of Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights (OJ 2007 L 53, p. 1) that it is FRA’s Management Board that is empowered to adopt the implementing measures for the Staff Regulations, in accordance with the provisions of Article 110 of those regulations.

47 Therefore, in so far as Decision 2009/13 must be considered to be an implementing rule for the Staff Regulations, within the meaning of Article 110(2) of those regulations, according to the settled case-law of the Court of Justice, the General Court must raise of its own motion any plea as to the lack of competence of the author of the contested measure (see, inter alia, judgment of 14 December 2016, SV Capital v ABE, C‑577/15 P, EU:C:2016:947, paragraph 31 and the case-law cited).

48 It follows that the General Court erred in law in holding, in paragraph 306 of the judgment under appeal that, as the appellant had not sufficiently substantiated her argument alleging that the author of Decision 2009/13 lacked competence, that argument had to be rejected.

49 However, it is clear from the case-law of the Court of Justice that an error of law committed by the General Court does not invalidate a judgment under appeal if its operative part is well founded on other legal grounds (judgment of 20 September 2018, Spain v Commission, C‑114/17 P, EU:C:2018:753, paragraph 62 and the case-law cited).

50 In the present case, Decision 2009/13 could not be classified as a general provision implementing the Staff Regulations adopted on the basis of Article 110 of those regulations, but was, as FRA submitted in its written pleadings, an internal decision intended to guide the body responsible for staff matters. In that regard, Article 15(4)(c) of Regulation No 168/2007 provides that the FRA Director shall be responsible for ‘all staff matters, and in particular the exercise in respect of staff of the powers laid down in Article 24(2)’.

51 Therefore, although the General Court could not, in the present case, merely state that the complaint alleging lack of competence had to be rejected on the ground that it was not sufficiently substantiated, that complaint could not in any event succeed given that Decision 2009/13, even if it were applicable directly or indirectly to the present case, is not a general implementing measure adopted under Article 110 of the Staff Regulations, the adoption of which is, as provided for in Article 24(3) of Regulation No 168/2007, the sole preserve of FRA’s Management Board in agreement with the Commission, but an internal management provision which the Director is empowered to adopt.

52 It is clear from all of those considerations that the first ground of appeal must be rejected.

The second ground of appeal

Arguments of the parties

53 The appellant submits, in essence, that the General Court, first, did not examine the third head of her claim, seeking compensation for the harm resulting from FRA’s failure to adopt lawful rules concerning the appraisal and reclassification of its members of staff and the renewal of their contracts, which constituted a failure to act within the meaning of Article 265 TFEU and, secondly, failed to exercise its unlimited jurisdiction, as requested under her fifth head of claim, thereby disregarding the requirements stemming from its obligation to ensure that the law is observed, in accordance with Article 19(1) TEU and Article 268 TFEU.

54 Thus, as a preliminary point, the appellant notes that the EU courts are required to examine of their own motion any plea alleging lack of competence and infringement of essential procedural requirements in the adoption of an act. On the basis of the findings in paragraph 230 of the judgment under appeal, the General Court concluded, in paragraph 231 of that judgment, that the procedure for adopting the contested decision was governed not only by Decision 2009/13, but also and above all by the obligations incumbent on the administration under Article 266 TFEU. She infers from this that FRA relied on Article 266 TFEU because the rules governing the renewal of contracts were unlawful at the time of the adoption of the initial non-renewal decision and remained so at the time of the adoption of the second non-renewal decision, which the General Court had, in essence, validated in paragraph 230 of the judgment under appeal.

55 The appellant takes the view that the General Court was obliged to examine the facts at issue, which it had not done. It follows that the findings set out in paragraphs 230, 308 and 309 of the judgment under appeal were not based on the facts on which her application, which criticised the failure to consult the Staff Committee and the lack of competence of the author of Decision 2009/13, was based. That examination is particularly important as the decisions of the EU courts affect, beyond the individual interest of the appellant, the public interest. The appellant also criticises the General Court for having failed to take into account the overall context of the case, in particular the judgment of 11 July 2019, BP v FRA (T‑838/16, not published, EU:T:2019:494), ordering FRA to compensate her for the harm she had suffered because of the disclosure of her personal data. She concludes from this that the General Court failed to fulfil its obligation to ensure that the law is observed guaranteed in Article 19(1) TEU, committed a manifest error of assessment, distorted the evidence, breached its duty to give reasons and infringed the right to a fair trial.

56 More specifically, the appellant disputes the findings made by the General Court in paragraphs 311 and 333 of the judgment under appeal.

57 The General Court erred, according to her, in finding, in paragraph 311 of that judgment, that the appellant claimed compensation, first, for the damage suffered as a result of the contested decision and the unlawful implementation of the judgment on appeal and, secondly, for the damage resulting from the adoption by FRA of unlawful rules on appraisal, reclassification and renewal. The appellant submits that she did not dispute the fact that FRA had adopted unlawful rules, but the fact that it had failed to adopt lawful rules, which is different. The error made in paragraph 311 of the judgment under appeal is established, first, by the misreading by the General Court of her third head of claim, secondly, by the distortion of the sense of the words used in the third head of claim and thirdly, by the distortion of the legal basis applicable to the two texts, namely, the text of the head of claim and the text of paragraph 311 of the judgment under appeal. She submits that in order to address her claim for compensation the General Court had the duty to assess the part of her claim relating to FRA’s failure to act and thus the evidence she had submitted in that regard for the purpose of establishing whether FRA had failed to fulfil its obligation to adopt lawful rules.

58 The appellant also submits that the General Court erred in finding, in paragraph 333 of the judgment under appeal, in relation to her fifth head of claim, that the examination of the pleas in the action had not disclosed any factors justifying, in the circumstances, the exercise of its unlimited jurisdiction, within the meaning of the second sentence of Article 91(1) of the Staff Regulations. She submits, in essence, that the General Court failed to exercise its jurisdiction, within the meaning of Article 19(1) TEU, and that a diligent exercise of that jurisdiction should have led it to conclude that FRA had failed to adopt lawful rules and to draw inferences from that failure, in accordance with the relevant case-law concerning pecuniary disputes, in the context of its unlimited jurisdiction.

59 FRA contends that the second ground of appeal must be rejected as in part inadmissible and in part unfounded.

Findings of the Court

60 By her second ground of appeal, referring essentially to paragraphs 230, 308 to 311 and 333 of the judgment under appeal, the appellant complains that the General Court, in essence, ruled infra petita, by not ruling on all of the heads of claim that she had put forward. By the first part of that ground of appeal, she criticises the General Court for not having ruled on her third head of claim, seeking compensation for the damage suffered by her as a result of FRA’s failure to adopt lawful rules for the appraisal and reclassification of its members of staff and for the renewal of their contracts, which constituted a failure to act, within the meaning of Article 265 TFEU. By the second part of that ground, she criticises the General Court for not having ruled on her fifth head of claim, inviting that court to exercise its unlimited jurisdiction.

61 As regards the first part of that second ground of appeal, it is apparent from the application initiating proceedings submitted by the appellant before the General Court that she sought compensation for harm which she considered that she had suffered on account, inter alia, of the absence of lawful implementing rules, as she pleaded loss of salary, loss of opportunity to be reclassified and loss of income. As is apparent from paragraphs 318 to 333 of the judgment under appeal, the General Court did not expressly rule on that application.

62 The General Court, in effect, in paragraph 319 of the judgment under appeal, analysed the application before it as asking the Court to declare FRA’s appraisal rules unlawful at the time of the appellant’s appraisal for the years 2009 and 2010. In the circumstances of the case, it held, first, in paragraphs 322 to 324 of the judgment under appeal, that, in invoking the unlawfulness of the rules on appraisal, the appellant sought indirectly to challenge the lawfulness of the 2009 and 2010 CDRs and it consequently dismissed the claim relating to that paragraph as inadmissible. Secondly, the General Court noted, in paragraphs 331 and 332 of the judgment under appeal, that the appellant submitted that Decision 2009/13 was unlawful in that it was, inter alia, adopted by an authority without competence to do so and without consultation of the Staff Committee, and it rejected the claim on that point, referring in that regard to its analysis, in paragraphs 302 to 309 of the judgment under appeal, of the third part of the second plea in law, pleading the unlawfulness of that decision.

63 However, even if one accepts that the failure of an institution or agency to adopt lawful rules on appraisal and reclassification is, if established, comparable to a failure to act, within the meaning of Article 265 TFEU, which, in turn, would confer entitlement to compensation, it is apparent from paragraphs 302 and 308 of the judgment under appeal, first, that the appellant is wrong to maintain that the General Court took the view that Decision 2009/13, which was applicable in the present case, was unlawful and, secondly, that FRA was required to act in the manner suggested by the appellant.

64 As regards the second part of the second ground of appeal, alleging the failure by the General Court to exercise its unlimited jurisdiction, it must be rejected as unfounded in that it is based on an incorrect reading of the judgment under appeal. It is clear from paragraph 333 of that judgment that the General Court did not fail to rule on that head of claim but held that there was no need for it to exercise its unlimited jurisdiction since the examination of the pleas in law had not disclosed any factor justifying its exercise in the present case.

65 In the light of those considerations, the second ground of appeal must be rejected as unfounded.

The third ground of appeal

Arguments of the parties

66 The third ground of appeal alleges infringement, by the General Court, of Articles 35, 36, 64 and 65 of the Rules of Procedure of the General Court, infringement of the principle of audi alteram partem, disregard for the rules of evidence, infringement of the right to be heard and the right to a fair trial and infringement of Article 52 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

67 The appellant notes generally that the General Court did not refer to the evidence set out in Annexes A.20 and A.28 to her application at first instance, except in paragraph 327 of the judgment under appeal, in which it found that her application was not sufficiently substantiated regarding her having been denied the benefit of a reclassification procedure on account of the absence of lawful rules on reclassification, together with the delays in drawing up her CDRs, and that she confined herself ‘to referring to the audit report of the European Commission’s Internal Audit Service, with no indication as to the relevant annex’. She submits, however, in that regard, that she became aware, after she received FRA’s defence, that there was a possibility that FRA had not received all the evidence submitted, which is why, on 25 September 2017, she sent the General Court a letter containing the evidence in question, requesting it to ascertain whether FRA had received all the evidence. She notes, however, that that letter was apparently not notified to FRA and that she was not informed of the outcome of her request, which was an infringement of Articles 35, 36, 64 and 65 of the Rules of Procedure of the General Court and of the principle of audi alteram partem, the principle of transparency and of the right to be heard.

68 The appellant argues, moreover, that, contrary to what is stated by the General Court in paragraph 101 of the judgment under appeal, the ‘first’ offer of evidence that she submitted was on 21 July 2017 (Annexes F.1 to F.9) and not on 11 September 2017. She notes, however, that the judgment under appeal did not reject any of the nine items of evidence submitted, annexed under numbers F.1 to F.9 to her reply, that it did not refer to them and that it did not state the reasons why they were not taken into consideration, even though they were relevant in the light of her heads of claim and her pleas in law. She infers from this that the General Court did not examine her application, that it could not therefore reach the conclusions set out in paragraphs 305, 306 and 309 of the judgment under appeal, that it therefore distorted the evidence and facts submitted and, as a result, infringed the right to effective judicial protection guaranteed by Article 47 of the Charter, the right to be heard and the right to a fair trial.

69 FRA disputes the appellant’s line of argument in its entirety. It contends that the third ground of appeal is in part manifestly inadmissible and, in any event, unfounded.

Findings of the Court

70 It is clear that under the guise of a ground of appeal expressed in very general terms, alleging, in essence, infringement by the General Court of its duty of care in the taking and assessment of the evidence adduced before it, the appellant reiterates, to a large extent, the arguments put forward in support of her first two grounds of appeal, in particular, those in which she criticises the assessment of the plea of illegality which she invoked and the consequences of that assessment on her claim for compensation, and, in short, invites the Court of Justice to re-examine the various items and offers of evidence that she adduced before the General Court.

71 Therefore, the ground of appeal must be rejected in its entirety, since the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence that the General Court accepted in support of those facts. Provided that that evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced before it. That assessment does not, therefore, constitute, save where the clear sense of that evidence has been distorted, a point of law which is subject, as such, to review by the Court of Justice (judgments of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 23, and of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 75 and the case-law cited).

72 It follows from those considerations that the third ground of appeal must also be rejected.

The fourth ground of appeal

Arguments of the parties

73 The fourth ground of appeal alleges infringement by the General Court of the rights of the defence, the right to be heard and the right of access to relevant information, guaranteed under Article 41 of the Charter, distortion of the evidence, infringement of the right to effective judicial protection and a fair trial, guaranteed under Article 47 of the Charter, and a failure to state reasons.

74 The appellant submits, by a first part of that ground of appeal, that the conclusion, which the General Court reached in paragraph 161 of the judgment under appeal, that the right to be heard had not been infringed is vitiated by a manifest error of assessment and a distortion of the evidence. She notes that her hearing before the new FRA Director on 18 December 2015, referred to by the General Court in paragraph 154 of the judgment under appeal, took place two days after his nomination. If the General Court had examined the facts, it would have found that that hearing was ineffective, because the FRA Director was not familiar with the file, and unlawful because the appellant was not informed of the decision that the Director intended to take. She points out that she did not have the opportunity to make her views known either on the negative factors identified in respect of her, the first reason for the non-renewal of her contract, or on the limited budget available, the second reason for the non-renewal, as FRA did not notify her of that information. She submits, more specifically, that FRA was untruthful in relation to the limited budget available, that the General Court neither examined the evidence annexed under numbers A.20 and A.28, proving that untruthfulness, nor responded to her request of 25 September 2017 asking it to ensure that FRA had received that evidence and that, lastly, it did not state the reasons for not taking that evidence into consideration.

75 In the second part of the fourth ground of appeal, which refers to paragraphs 171 to 181 of the judgment under appeal, the appellant submits that the General Court was not entitled to find that she had access to both incriminating and exculpatory evidence and, therefore, that there was no infringement of the right of access to the file. She points out, in that regard, that she was not given a fair hearing before the FRA Director adopted the contested decision, as she was not in fact in a position to make known her point of view on the evidence that could be adduced against her, and that she was not given disclosure of the documents on which the Director based that decision, in particular the incriminatory evidence. She notes, moreover, that she demonstrated that the ground alleging limited budgetary resources was unfounded.

76 In the third part of the fourth ground of appeal, alleging infringement of the obligation to state reasons, the appellant submits, in the first place, that the manner in which the General Court described her seventh plea in law in paragraph 137 of the judgment under appeal is inaccurate. She submitted, in her application, that FRA had given her the opportunity to comment on the opinion of 24 February 2012 but did not take into consideration her ‘list of objections’ or state the reasons for not taking it into consideration. She takes the view that that material inaccuracy and error in the classification of the documents in the file, her list of objections being classified as ‘comments’, together with the fact that the General Court did not correctly take into account any of her arguments, constitutes an error of law. The appellant submits, in the second place, that the conclusion that the General Court reached in paragraph 142 of the judgment under appeal, that FRA provided sufficient reasons for its decision and that it was not required to answer all the arguments that she had put forward, is also vitiated by an insufficient and defective statement of reasons. She notes, in that regard, that the contested decision was based on two factors, insufficient budgetary resources and below average CDRs. However, she proved that the claim that there was an insufficient budget was inaccurate and demonstrated that the CDRs were adopted unlawfully, which were essential and decisive factors in the light of the requirement to state reasons referred to by the General Court in paragraph 140 of the judgment under appeal. In referring only to the first reason, without considering the second, the General Court therefore failed to clarify the facts and to state reasons for its judgment, infringed the right to be heard, committed a manifest error of assessment, infringed the rights of the defence and the right to a fair trial.

77 FRA disputes all the arguments put forward in support of the fourth ground of appeal. It submits that that ground of appeal must be rejected as in part manifestly inadmissible and, in any event, as manifestly unfounded.

Findings of the Court

78 In her fourth ground of appeal, the appellant argues, in essence, that in rejecting her first plea in law, alleging infringement of the obligation to state reasons, and the two parts of her seventh plea in law, alleging infringement of the rights of the defence and of the right to access to the file, the General Court either distorted the facts and evidence which she had submitted to it or made manifest errors of assessment.

79 By the first part of her fourth ground of appeal, the appellant essentially puts forward two arguments.

80 The appellant disputes, first, having been given a fair hearing by the new FRA Director, as she was not informed in advance of the content of the decision that he intended to adopt and the incriminatory evidence that he intended to accept for that purpose was not made available to her. However, it is clear from paragraphs 154 to 157 of the judgment under appeal that she had an ample opportunity to express her point of view both before and after her hearing before the new FRA Director and that she had, inter alia, made written comments on the draft decision. That argument must therefore be rejected as unfounded.

81 Secondly, she submits that the General Court distorted the evidence by which she sought to demonstrate that FRA had been untruthful concerning the second reason for the non-renewal of her contract, relating to the insufficiency of budgetary resources. It is clear, however, that that argument was not made at first instance before the General Court and that, consequently, no ruling was made in the judgment under appeal on that point, even though paragraph 153 of that judgment refers to the Multi-annual Staff Policy Plan 2012-2014. That argument must, therefore, be rejected as manifestly inadmissible.

82 Consequently, it being understood that the appellant did not challenge the assessment made by the General Court in paragraph 158 of the judgment under appeal that the new FRA Director had no need whatsoever to reopen the discussion on the subject of the 2009 and 2010 CDRs, since they had become final, the first part of the fourth ground of appeal must be rejected as in part unfounded and in part inadmissible.

83 The second part of the fourth ground of appeal, as it is based overall on the same arguments, in terms of the infringement of the right of access to the file, must be rejected for the same reasons.

84 By the third part of her fourth ground of appeal, the appellant also puts forward, in essence, two separate arguments: the first alleging an error in the classification of the comments she had made in respect of the opinion of 24 February 2012, and the second, based on the General Court wrongly finding, in paragraph 142 of the judgment under appeal, that FRA had not answered her complaints concerning irregularities vitiating the acts preparatory to the contested decision.

85 As regards the first of those arguments, it must be rejected as unfounded. The fact that the General Court classified her objections as mere ‘comments’ does not in itself mean that it misconstrued the scope of FRA’s obligation to state reasons.

86 As to the second of those arguments, which must be compared with the arguments put forward in the context of the second plea in law at first instance, alleging that FRA disregarded its own general rules governing the appraisal of its contract staff and the renewal of their contracts, the appellant submits that the agency did not state the reasons for not taking those irregularities into account.

87 As is apparent from the analysis of the first ground of appeal, the appellant relies, in that regard, inter alia, on a submission alleging the lack of competence of the author of the 2009/13 Decision, pursuant to which the contested decision was adopted. From that point of view, the question of whether, contrary to what the General Court appears to state in paragraph 142 of the judgment under appeal, that argument required a reasoned response on the part of FRA, subject to review by the Court, cannot at the outset be rejected as inadmissible.

88 It appears, however, that that paragraph refers to paragraph 56 of the judgment under appeal, which was not challenged by the appellant, in the words of which ‘the new FRA Director justified the non-renewal of the applicant’s contract by weighing up, on the one hand, the interests of the service, in the light of the negative opinion given by her head of department on 24 February 2012, her relative performance over a period of 3 years preceding the initial decision not to renew and budgetary aspects requiring, within FRA, the temporary engagement of an archivist and, on the other hand, the interests of the applicant’.

89 In the light of the foregoing considerations, the fourth ground of appeal must be rejected as in part inadmissible and in part unfounded.

The ground of appeal relating to irregularity in the composition of the Chamber hearing the case, put forward in the reply

90 Referring to the arguments which she put forward in the two other appeals, namely, the appeals giving rise to the order of 19 March 2020, BP v FRA (C‑682/19 P, not published, EU:C:2020:214), and the judgment of 16 September 2020, BP v FRA (C‑669/19 P, not published, EU:C:2020:713), respectively, the appellant requests, in her reply, that the Court ‘take into consideration’ the fact that the Fifth Chamber was composed in a way which did not allow, first, an effective vote, as the judge acting as President also cumulated the function of Judge-Rapporteur in breach of Article 21(4) of the Rules of Procedure of the General Court, and, secondly, the referral of a case to a Chamber sitting in extended composition, in breach of Article 28(1) of the Rules of Procedure of the General Court.

91 That line of argument which concerns a matter of public policy, although not related to any of the grounds initially put forward in support of the appeal, must be declared admissible, even though it was raised at the stage of the reply and the appellant refers to other cases that she had against FRA.

92 That argument cannot, however, succeed.

93 In the first place, the argument that the Judge-Rapporteur had two votes on account of her role as acting President of the relevant Chamber must be rejected, since the appellant has not put forward anything to support that assertion. While Article 21(4) of the Rules of Procedure of the General Court, which concerns the procedures for voting during deliberations, states that ‘the Judge-Rapporteur … shall vote first and the President … shall vote last’, that clarification, which merely states the order in which the members of the Chamber hearing the case are to cast their votes cannot be interpreted as meaning that the Judge-Rapporteur who is also President of the Chamber is required to vote twice, and thus to have two votes, under that provision.

94 In the second place, as regards the argument indirectly calling into question the formation of the Chamber which heard the case, it must be borne in mind that, in accordance with Article 28(1) of the Rules of Procedure of the General Court, ‘whenever the legal difficulty or the importance of the case or special circumstances so justify, a case may be referred to the Grand Chamber or to a Chamber sitting with a different number of Judges’.

95 The referral of a case to a Chamber sitting in extended composition is an option, not an obligation, recourse to which is subject to the criteria defined in those rules of procedure.

96 In the present case, the appellant has not put forward any objective reason why it should be held that the case that was brought before the General Court entailed a difficulty, an importance or a particular circumstance that required a referral to a Chamber sitting in extended composition.

97 It follows from those considerations that the arguments put forward in the reply which challenge the lawfulness of the composition of the Chamber that heard the case must be rejected as unfounded.

The fifth ground of appeal

Arguments of the parties

98 By her fifth ground of appeal, which refers to paragraphs 335 and 336 of the judgment under appeal, the appellant submits that, in ordering her to pay the costs in their entirety, the General Court infringed Articles 134 and 135 of the Rules of Procedure of the General Court. She argues, in that regard, that the General Court, first, did not state the reasons why the case did not lend itself to the application of Article 135(1) of the Rules of Procedure concerning the division of costs on an equitable basis and, secondly, did not examine the possibility of applying Article 135(2) of the Rules of Procedure, concerning unreasonable or vexatious costs. She notes that she pleaded that FRA should bear all the costs in the light of its attitude which caused ‘the escalation of the dispute’ and the lodging of her appeal. She requests, therefore, that the defendant be ordered to pay the costs of the proceedings at first instance and of the appeal in their entirety.

99 FRA contends that that ground is manifestly inadmissible and, in any event, unfounded.

Findings of the Court

100 The fifth ground of appeal, which refers to paragraphs 335 and 336 of the judgment under appeal ordering the appellant to bear the costs in their entirety, alleges an infringement by the General Court of Articles 134 and 135 of the Rules of Procedure of the General Court and of the obligation to state reasons.

101 In that regard, it must be recalled that, according to settled case-law, where all the other grounds put forward in an appeal have been rejected, any ground challenging the decision of the General Court on costs must be rejected as inadmissible by virtue of the second paragraph of Article 58 of the Statute of the Court of Justice of the European Union, under which no appeal is to lie regarding only the amount of the costs or the party ordered to pay them (judgments of 12 July 2001, Commission and France v TF1, C‑302/99 P and C‑308/99 P, EU:C:2001:408, paragraph 31, and of 9 June 2016, CEPSA v Commission, C‑608/13 P, EU:C:2016:414, paragraph 75 and the case-law cited).

102 Since the appellant has been unsuccessful in all of her grounds and arguments relied on in support of the appeal, the present ground of appeal, relating to the allocation of costs, must, therefore, be declared inadmissible.

103 In the light of all of the foregoing considerations, the appeal must be dismissed in its entirety.

Costs

104 Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In the present case, since the appellant has been unsuccessful and FRA has applied for her to be ordered to pay the costs, the appellant must be ordered to bear her own costs and to pay those incurred by FRA.

On those grounds, the Court (Eighth Chamber) hereby:

1. Dismisses the appeal;

2. Orders BP to bear her own costs and to pay those incurred by the European Union Agency for Fundamental Rights (FRA).

Wahl Biltgen Rossi

Delivered in open court in Luxembourg on 17 December 2020.





A. Calot Escobar N. Wahl