Case T‑242/17

SC

v

Eulex Kosovo

(Action for annulment and for damages — Arbitration clause — Common foreign and security policy — EU international mission staff — Consecutive fixed-term employment contracts — Internal competition — Impartiality of the selection board — Non-renewal of a fixed term contract — Partial reclassification of the action — Contractual liability — Non-contractual liability — Material and non-material harm — Action in part manifestly inadmissible and in part manifestly unfounded in law)

Summary — Order of the General Court (Ninth Chamber), 19 September 2018

Actions for annulment — Actionable measures — Measures producing binding legal effects — Decision informing the applicant of her failure to pass an internal competition of an international mission of the European Union and decision relating to the non-renewal of her employment contract — Included — Measures producing such effects outside the contractual relationship between the parties and involving the exercise of public authority prerogatives conferred upon the contracting authority

Judicial proceedings — Legal basis of an action — Choice for the applicant and not the EU judicature — Action brought under Article 272 TFEU — Action based on pleas alleging infringement of rules of EU law and seeking the annulment of decisions — Possibility of reclassification of the action by the EU judicature

Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — None — Inadmissibility

(Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the General Court, Art. 76(d) and (e))

Under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of that Statute, and under Article 76(d) and (e) of the Rules of Procedure, all applications must state the subject matter of the dispute, the pleas and arguments put forward and a brief statement of the applicant’s pleas in law and heads of claim. Those particulars must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, even without further information. In order to guarantee legal certainty and sound administration of justice, it is necessary, for an action to be admissible, that the basic legal and factual particulars on which it is based be indicated, at least in summary form, coherently and intelligibly in the application itself. As regards, more specifically, the parties’ heads of claim, it should be noted that they define the subject-matter of the proceedings. Those heads of claim must therefore state explicitly and unequivocally what the parties are seeking. (see paras 24, 25)

See the text of the decision. (see para. 26)

It is for the applicant to choose the legal basis of its action and not for the EU judicature itself to choose the most appropriate legal basis. However, in the context of an action brought on the basis of Article 272 TFEU seeking the annulment of decisions of bodies or agencies of the Union, in support of which the applicant does not present any plea, complaint or argument based on contractual stipulations, but raises instead grounds for annulment seeking a declaration that the contested decisions are vitiated by defects specific to administrative acts, it must be held that the action must be regarded as being an application for annulment brought on the basis of Article 263 TFEU. (see paras 27, 43, 46)

Acts which form part of a contract from which they are inseparable are contractual in nature. On the other hand, where an act is intended to produce binding legal effects which are outside the contractual relationship between the parties and involve the exercise of public powers conferred on the contracting institution in its capacity as administrative authority, that act must be the subject of an action for annulment under Article 263 TFEU. In that regard, the decision to organise an internal competition within an international mission of the European Union constitutes an administrative act and was not taken on the basis of the contract of employment between the applicant and the mission for which she worked. Therefore, the decision informing the applicant of her failure to pass an internal competition of such an international mission of the European Union, adopted by the selection panel as part of that internal competition, on the one hand, is separable from that contract, and, on the other, constitutes an act against which an action for annulment may be brought in so far as it aims to produce binding legal effects falling outside of the contractual relationship between the parties and which result from the exercise of public powers conferred on the European Union’s international mission in its capacity as an administrative authority. (see paras 36, 39-42)

See the text of the decision. (see para. 58)

In order for the Union to incur non-contractual liability under the second paragraph of Article 340 TFEU for unlawful conduct of its institutions, a number of conditions must be satisfied: the institution’s conduct must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct and the damage pleaded. There is a causal link for the purposes of the second paragraph of Article 340 TFEU where there is a sufficiently direct link of cause and effect between the conduct of the institutions and the damage, the burden of proof being on the applicant to adduce evidence of the link. (see paras 58, 61)