OPINION OF ADVOCATE GENERAL

PITRUZZELLA

delivered on 11 April 2019 ( 1 )

Case C‑19/18 P

VG, successor in title to MS

v

European Commission

(Appeal — Institutional law — Action for damages against the Commission — Compensation for non-material harm allegedly suffered by the applicant — Errors by the Commission in the handling of a complaint against the applicant — Decision of the Commission to exclude the applicant from the Team Europe network of conference speakers — Letter of agreement and membership — Concept of ‘contractual context’ — Non-contractual liability of the European Union — Obligation to state reasons)

1. The appellant, VG, successor in title to MS, applicant before the General Court of the European Union, requests the Court of Justice to set aside the order of the General Court of 31 May 2017 (‘the order under appeal’) ( 2 ) by which the General Court rejected as manifestly inadmissible the action brought before it, on the basis of Article 268 TFEU, seeking compensation from the European Commission for the damage caused following its decision of 10 April 2013 to put an end to MS’s collaboration with the ‘Team Europe’ network of conference speakers. ( 3 )

I. Background to the dispute

2. It is clear from paragraph 1 et seq. of the order under appeal that VG was, in his capacity as a conference speaker, a member of the Team Europe network between 20 July 2011 and 10 April 2013. That network is a local communications network responsible for assisting Commission Representations with their communication of European policies at local level. On 20 July 2011, VG had signed in Montpellier a ‘letter of agreement and membership of Team Europe’, which had already been signed in Paris on 8 July 2011 by the Head of the Commission Representation in France.

3. On 10 April 2013, the Head of the Commission Representation contacted VG by telephone to inform him of a complaint about his behaviour by at least one woman (‘the complaint by Ms X’) who had taken part in one of Team Europe’s activities with him. VG was then informed by letter that the Commission’s Head of Representation was ending his collaboration with Team Europe, with immediate effect, in accordance with the provisions of the letter of agreement.

4. On 6 June 2013, VG lodged a complaint with the European Ombudsman against the decision of the Commission to put an end to his collaboration with the Team Europe network, seeking annulment of that decision, reinstatement in the said network and that he be given an official letter of apology. That complaint resulted in a decision of the Ombudsman of 19 November 2015 whereby it concluded that there had been maladministration due to the Commission not having properly heard VG and not having carried out a sufficiently thorough examination of the case before taking the decision to terminate the collaboration. The Commission did not act upon the decision of the Ombudsman.

II. The procedure before the General Court and the order under appeal

5. Prior to the lodging of the action with the General Court, seeking annulment of the decision of 10 April 2013 and compensation for the damage he believed he had suffered as a result of his exclusion from the Team Europe network, VG applied for legal aid. By order of 3 May 2016, ( 4 ) the President of the General Court granted his application. In order to verify that the conditions for granting legal aid were met in that case, he relied, in particular, on the observations submitted by the Commission to the Ombudsman in the context of the complaint lodged by VG, according to which ‘Team Europe members do not have a contractual relationship with the Commission’ ( 5 ) whilst noting that the Commission had not intended, at that stage of the procedure, to adopt a position on the classification to be given to the legal relations existing between the parties. ( 6 ) The President of the General Court concluded ‘that, at that stage, on a preliminary analysis, it [was] not clear that the subject matter of the action for compensation which the applicant intend[ed] to bring before the EU Courts, [was] a claim for damages based objectively and overall on rights and obligations of a contractual origin and [should] be declared manifestly inadmissible for that reason’. ( 7 )

6. On 19 July 2016, VG brought an action based on Article 268 TFEU seeking compensation from the Commission for the damage caused following its decision of 10 April 2013. On 31 May 2017, the General Court adopted the order under appeal, pursuant to Article 126 of its Rules of Procedure.

III. Procedure before the Court of Justice and forms of order sought by the parties

7. On 5 January 2018, VG lodged an appeal against the order under appeal. In the form of order sought, the Court is requested to: set aside the order under appeal; refer the case back to the General Court or, if the Court considers that the state of the proceedings permits it to give a final judgment, grant the form of order sought before the General Court; recognise that the Commission is non-contractually liable; order the production of the documents declared confidential by the Commission and providing the necessary basis for the exclusion decision; order payment of compensation for the non-material harm resulting from the Commission’s wrongful conduct, assessed ex aequo bono at EUR 20000; order the Commission to publish a letter of apology to the appellant and to reinstate him within Team Europe; ( 8 ) order the Commission to pay the costs of both sets of proceedings.

8. The Commission contends that the Court should reject the appeal as inadmissible or, in any event, declare it to be unfounded and order VG to pay all of the costs.

IV. Legal analysis

9. In support of his appeal, VG submits, first, that the order under appeal is vitiated by an error of law regarding the legal classification of the basis for the action for damages brought before the General Court and by a breach of the obligation to state reasons. Secondly, VG also argues that the order under appeal is vitiated by an error of law regarding the legal classification of the letter of agreement and by a breach of the obligation to state reasons, the General Court having also distorted the file.

10. Before proceeding to my analysis, I wish to make a preliminary remark.

11. This appeal raises the question of determination of the nature of the EU liability which the appellant seeks to engage. As we shall see, that question arises in an unclear factual and legal context, without any express contractual document and with contradictory statements from the Commission regarding the nature of the letter of agreement. Without prejudice to the outcome of the assessment of the appeal, it is already clear that, in ruling on the action before it, the General Court rather jumped the gun by adopting an order based on Article 126 of its Rules of Procedure, declaring the action to be manifestly inadmissible. Moreover, use of such an order seems to be rather inconsistent with the position expressed by the President of the General Court in his order ruling on VG’s application for legal aid. ( 9 )

12. That said, I shall proceed to an examination of the first ground of appeal.

A. The first ground of appeal alleging an error in the legal classification of the action for damages and a breach of the duty to state reasons

1. Summary of the arguments of the parties

13. By the first part of the first ground of appeal, VG complains, in essence, that the General Court, in paragraphs 32 to 40 of the order under appeal, incorrectly classified the basis of the action before it. The General Court did not apply the correct test resulting from the judgment of the Court of Justice of 18 April 2013, Commission v Systran and Systran Luxembourg, ( 10 ) since it relied solely on the letter of agreement, without also taking into consideration the legal rule allegedly infringed, the nature of the damage claimed, or the conduct complained of. The application before the General Court had, however, defined the subject matter of the action as the errors of the Commission in its handling of the complaint against the applicant, which had caused actual and certain non-material damage for which VG sought to obtain compensation. The applicant emphasises the fact that the conduct complained of is not the exclusion from the Team Europe network but rather the handling of the complaint made by Ms X, the exclusion being only a consequence thereof. Moreover, VG does not dispute that the Commission could terminate the letter of agreement. The subject matter of the dispute is not, therefore, the termination of the contract — assuming that the letter of agreement constitutes a contract — as evidenced by the nature of the rules relied on (namely, the Charter of Fundamental Rights of the European Union ( 11 ) and the European Code of Good Administrative Behaviour ( 12 )), VG not having, in particular, alleged a breach of the terms of the letter of agreement. In the same way, the nature of the damage claimed has no connection with any breach of a contractual obligation; rather, VG is alleging that the manner in which the Commission handled the complaint against him by Ms X violated his honour, dignity and reputation. For these reasons, the General Court had, therefore, incorrectly classified the conduct which is the subject of the challenge in VG’s action, with particular regard to paragraphs 35 to 37 of the order under appeal.

14. As regards the second part of the first ground of appeal, VG claims that the General Court breached the obligation to state reasons. First, it did not explain why VG’s claim for compensation was necessarily linked to the interpretation of the letter of agreement, whereas the conduct complained of in that claim is not the termination of the alleged contract, with the result that the interpretation of the letter was neither necessary nor critical to the assessment of the claim for compensation, within the meaning of paragraph 80 of the judgment of 18 April 2013, Commission v Systran and Systran Luxembourg. ( 13 ) Secondly, the order under appeal does not set out the reasons why the General Court considered that the Commission’s handling of the complaint by Ms X was necessarily linked to the interpretation of the letter of agreement. In this regard, VG notes that the letter of agreement does not make any provision for the handling of possible complaints nor any obligation on the Commission to provide reasons for cancellation of the agreement with the Team Europe network. The legal rules, including fundamental rights, of which VG alleges an infringement, apply independently of the provisions of the letter of agreement.

15. The details of VG’s application were not dealt with by the General Court which failed to examine, in an objective and overall manner, by reference to the various matters contained in the file, whether a genuine contractual context existed, in accordance with the judgment in Commission v Systran and Systran Luxembourg. ( 14 )

16. The Commission, for its part, points out that the General Court’s analysis complies with the requirements of the case-law in Commission v Systran and Systran Luxembourg. ( 15 ) The General Court had, without erring in law, demonstrated the existence of a contractual context surrounding the applicant’s request. The applicant did not rely on any documents other than the letter of termination and complained about the breach of contract. There was a direct link between the conduct complained of and the end of VG’s collaboration with the Team Europe network. The letter of agreement clearly showed the respective obligations of the parties as well as the conditions for putting an end to the collaboration and it is those conditions governing the termination of the contract which were disputed by VG who, according to the terms of his application before the General Court, disputed ‘the radical decision to put an end to the collaboration’. The damage was also linked to the termination since VG requested, amongst other things, his reinstatement. The potential liability of the Commission should, necessarily, be assessed, within the meaning of Commission v Systran and Systran Luxembourg, ( 16 ) by assessing the content of the letter of agreement. The reliance on rules not flowing from the letter of agreement did not deprive the dispute of its contractual nature. ( 17 ) The alleged non-material harm resulted from the circumstances surrounding the termination of the contractual relationship. VG seeks to distinguish artificially between the causes and circumstances of the termination of the letter from the act of termination itself. The question as to whether the reason relied on for the termination, is justified, is eminently contractual.

17. As regards the alleged failure to state reasons, the Commission points out that the General Court ruled on the plea of illegality raised and not on the substance. Moreover, VG relies on a series of arguments already submitted to the General Court which that court has already rejected and which are therefore inadmissible. ( 18 ) In any event, in order to dismiss an appeal before it as inadmissible, it is sufficient for the General Court to establish that the appeal formed part of a genuine contractual context linked to the subject matter of the dispute which the General Court had properly established in paragraphs 34 to 38 of the order under appeal. On this point, the grounds for the order do not demonstrate any inadequacy nor are they vitiated by any contradiction and the General Court was not obliged to respond to all of VG’s arguments.

18. In his reply, VG disputes having artificially sought to isolate the causes and circumstances of the termination of the letter of agreement from the act of termination itself and maintains that he did not complain about the breach of a contract nor did he dispute that the Commission was able to put an end to the letter of agreement. Since VG did not rely on a breach of the letter of agreement, the Commission cannot claim that the interpretation thereof is necessary to establish the merits of the applicant’s claims. VG points out that the criticism levelled at the Commission concerned its breach of his right to be heard, of the obligation to state reasons, of its duty of care and of the presumption of innocence. The action brought by VG was therefore aimed solely at disputing the administrative act of the Commission. VG points out that, for all practical purposes, it cannot be ruled out that the contractual and the non-contractual liability of an institution may coexist in respect of one of the parties with which it has concluded a contract. ( 19 ) The alleged damage was not, in any event, linked to improper performance of a contract comprising the letter of agreement. Admittedly, the wrongful conduct of the Commission resulted in the decision to exclude VG from the Team Europe network but the reinstatement requested formed part of the claim for compensation in kind aimed at rebuilding VG’s image which had been tarnished by the manner in which the Commission had handled the complaint by Ms X.

19. In its rejoinder, the Commission contends that VG’s argument contains a major contradiction. VG criticises the Commission for not having respected his fundamental rights whilst also claiming that the letter of agreement lays down only non-binding guidelines and does not govern the unique relationship between VG and the Commission. If the letter of agreement is only a unilateral act of the Commission, unrelated to VG, the Commission does not understand the basis for its obligation to hear VG or to fulfil the duty to provide reasons. VG’s claims make sense only if the act in dispute is a contract. Moreover, the Commission would reiterate that mere reliance on the breach of rules which do not flow from the contract do not have the effect of altering the contractual nature of the dispute. ( 20 ) The approach adopted by VG is not only contrary to the case-law in Commission v Systran and Systran Luxembourg ( 21 ) but would also transform all contractual disputes into actions for non-contractual liability and risks extinguishing the distinction between these two types of liability. Moreover, the Commission emphasises that the request for reinstatement confirms that the damage for which compensation is sought results from the exclusion from the Team Europe network, namely, the termination of the contract that comprises the letter of agreement, the full title of which is ‘Letter of Agreement and Membership’. The purpose of the reinstatement is not only to compensate the non-material damage but also to re-establish the contractual relationship as it existed before the termination of the contract.

2. Analysis

20. At the outset, I would point out that the parties do not dispute the analysis which the General Court used and reproduced in paragraph 25 et seq. of the order under appeal. The General Court, relying essentially on the judgment of the Court of 18 April 2013, Commission v Systran and Systran Luxembourg, ( 22 ) also recalled that the TFEU provides for the division of jurisdiction between the EU Courts and the national courts as regards actions against the European Union which involve its liability. The non-contractual liability of the European Union falls within the exclusive competence of the former. ( 23 ) As regards the contractual liability of the European Union, jurisdiction is divided between the EU Courts where there is an arbitration clause and the national courts in other cases. ( 24 )

21. It is the subject matter of the action which determines whether it involves EU contractual liability or EU non-contractual liability. ( 25 ) The judgment in Commission v Systran and Systran Luxembourg ( 26 ) established the methodology to be followed for such an assessment. The Court has therefore ruled that the EU Courts, in determining whether they have jurisdiction to rule on a claim for compensation, cannot base their reasoning solely on the rules alleged by the parties. ( 27 ) They are obliged to verify whether the action for compensation before them ‘has as its subject matter a claim for damages based objectively and overall on rights and obligations of a contractual nature or of a non-contractual nature’. ( 28 ) The analysis must cover all the matters in the file, in particular the legal rule allegedly infringed, the nature of the damage suffered, the conduct complained of and the legal relations between the parties. ( 29 ) If it is clear from that analysis that there exists between the parties a ‘genuine contractual context, linked to the subject matter of the dispute, the in-depth examination of which proves to be indispensable for the resolution of [the] action’, ( 30 ) if it appears ‘necessary to interpret the content of one or more contracts concluded between the parties in question in order to establish whether the [parties’] claims are well founded’ ( 31 ) and in the absence, of course, of an arbitration clause, the EU Courts must halt their examination of the dispute and declare that they have no jurisdiction since an examination of the action would imply the assessment of rights and obligations of a contractual nature which, pursuant to Article 274 TFEU, falls within the jurisdiction of the national courts. ( 32 )

22. It is in the light of those principles that the first ground of appeal must be examined.

23. In this regard, it should be noted that the General Court focused on the letter of agreement, which, according to it, determined the respective obligations of the parties, the duration of the collaboration and the conditions for terminating the collaboration. ( 33 ) Since the applicant did not put forward any other documents, the General Court concluded that the conduct complained of had a direct link to the contractual relations that existed. ( 34 ) The claim for compensation is, according to it, linked to the interpretation of the letter of agreement which must be one of the integral factors to be examined in the context of the assessment of the Commission’s liability. ( 35 ) According to the General Court, it continues to determine the conditions for the termination of the contract, thereby giving the dispute a contractual character. ( 36 )

24. By ruling in that way, it appears that the General Court did not correctly apply the test laid down by the Court of Justice in the judgment in Commission v Systran and Systran Luxembourg ( 37 ) and that it gave the letter of agreement a dominant role, whereby it quickly ruled on its contractual nature. That case-law, in fact, requires an analysis of all the elements of the file, which include the legal rule allegedly breached, the nature of the damage complained of, the conduct complained of and the legal relations that exist. The same weight should be given to the various factors, especially where the contractual nature of the act considered to link the parties is seriously contested, as is the case in the present proceedings.

25. It is thus clear from the file that the subject matter of the applicant’s claim before the General Court was ‘the errors of [the Commission] in the handling of the complaint made by Ms X against the applicant, which caused actual and certain non-material damage’. ( 38 ) Thus, the event giving rise to the liability identified by VG is not the wrongful breach of the contractual relationship which was crystallised in the letter of agreement. Rather, that breach — if there was one — arose from the damage caused by the Commission. In this regard, the fact that VG also claimed, before the General Court, his reinstatement into the Team Europe network, does not tell us anything about the relationship between VG and the Commission. That reinstatement, if it is possible, is aimed at placing VG in the position he was in before the occurrence of the alleged wrongful act but not necessarily at re-establishing the contractual relations. In any event, the General Court does not appear to have drawn such an inference from that claim, restricting itself to touching on the issue of reinstatement in paragraph 33 of the order under appeal. This is, however, irrelevant, since VG was forced to abandon that claim during the course of the proceedings before the Court of Justice.

26. The rules relied on should also have been taken into consideration by the General Court, whilst not being, on their own, decisive. The analysis of the General Court is also incomplete in that regard. ( 39 ) VG criticises the Commission for having infringed Article 41 of the Charter, the general principles of good administration, respect for the rights of the defence, Article 16 of the Code of Good Administrative Behaviour, the principles of diligence and the presumption of innocence as well as the obligation to provide reasons and the principle of proportionality, when handling the complaint by Ms X. Those rules clearly demonstrate that VG’s claim was not based in contract, since he relied on rules which are deemed to govern acts of the Commission as an administration and did not rely on rules flowing from the alleged contract. In particular, VG did not complain of any breach of the letter of agreement. On this point, I am somewhat confused by the Commission’s line of argument which pretends not to recognise the basis of the legal obligations relied on by VG if the action was to be considered as involving non-contractual liability. For example, I find it difficult to believe that the Commission could ignore that the right to good administration or respect for the rights of the defence also apply to it when it acts in a non-contractual context.

27. Finally, the analysis of the General Court regarding the alleged damage is contained in one paragraph ( 40 ) and is limited to reiterating that VG is seeking financial compensation and an injunction against the Commission. The nature of the damage is not further analysed.

28. By merely examining in isolation the letter of agreement, even though its contractual nature was not obvious from the evidence, the General Court did not carry out the verification required by the case-law to the effect that the EU Courts are obliged to verify whether the action before them has as its subject matter a claim for damages based objectively and overall on rights and obligations of a contractual origin. The taking into account of all the elements of the case could have, as contended by VG, cast doubt on the existence of a genuine contractual context into which VG’s action falls.

29. In particular, by properly analysing, together with the letter of agreement, the legal rules allegedly infringed, the nature of the damage claimed and the conduct complained of, the General Court could not have concluded, without erring in law, that ‘the claim for compensation [was] linked to the interpretation of the letter of agreement’. ( 41 ) VG does not dispute that the letter of agreement provides that the parties can voluntarily withdraw, in writing, from it at any time. That confirms that the General Court adopted a narrow approach in considering that the action before it sought purely and simply to challenge the conditions under which the Commission had put an end to the contractual relationship with VG.

30. Not only did the General Court not take into account all the information necessary for determining the basis of the action brought before it, but it also failed, in its reasoning, to explain the reasons for its view that the letter of agreement was of a contractual nature.

31. Paragraphs 35 to 37 of the order under appeal comprise a succession of unsubstantiated assertions. A statement of reasons was all the more imperative since the file included two important elements. VG clearly relied, before the General Court, on the Commission’s statement during the procedure before the Ombudsman in which it stated that ‘the members of Team Europe have no contractual relationship with [it]’. That is clear from paragraph 23 of the order under appeal.

32. Moreover, VG also drew the General Court’s attention, in the observations on the objection of admissibility raised by the Commission, to the order of the President of the General Court ruling on the application for legal aid. ( 42 ) Paragraph 15 of that order referred to the Commission having elected not to adopt a position, at this stage, on how to classify the legal relations flowing from the letter of agreement. The President of the General Court inferred therefrom that the Commission considered that such a finding could be made only following a thorough investigation of the letter of agreement. ( 43 ) The President of the General Court concluded that ‘at this stage, on an initial analysis, it [was] not clear that the action for damages which the applicant [intended] to bring in the EU Courts [was] an action for damages based, objectively and overall, on rights and obligations of a contractual origin’. ( 44 ) I therefore understand VG’s confusion when faced with the order under appeal which, nevertheless, ruled — as I recall — that VG’s action was manifestly inadmissible.

33. Of course, as the Commission notes, the obligation on the General Court to provide reasons for its judgments does not require it to provide an account which follows exhaustively, one after the other, all the arguments put forward by the parties to the case. The reasoning may therefore be implicit on condition that it enables the persons concerned to know the reasons on which the General Court relies and provides the Court of Justice with sufficient material for it to exercise its power of review in the context of an appeal. ( 45 ) Admittedly, as the Commission maintains, the mere repetition of arguments already put forward before the General Court should render those arguments inadmissible. However, that cannot be the case where the General Court’s silence on those arguments prompted their repetition before the Court of Justice.

34. However, if the complaint alleging breach of the obligation to state reasons is to be upheld, it is not because the General Court did not respond to all the arguments raised by VG, but because the wording of the order under appeal does not properly set out the reasons which led the General Court, when ruling on the contractual nature of the dispute on the sole basis of the letter of agreement, to go beyond the text of the agreement which is not obviously contractual and beyond the contradictory and very restrictive statements of the Commission. The wording of the order also fails to substantiate why, even though the subject matter of the dispute, as identified by VG, was the error of the Commission in its handling of the complaint by Ms X, the General Court ruled that there was a ‘direct link’ ( 46 ) between the behaviour complained of and the alleged contractual relationship arising from the letter of agreement and that an examination thereof was necessary in order to assess the liability of the Commission. ( 47 )

35. Thus, by failing to examine all the elements of the file, including the statements of the Commission, the General Court carried out a partial application of the methodology laid down by the Court of Justice in its judgment and breached its obligation to provide reasons. In those circumstances, the first plea must be upheld, in its entirety, as well founded.

B. The second plea alleging an error in the legal classification of the letter of agreement, breach of the obligation to state reasons and distortion of the file

1. Summary of the parties’ arguments

36. In essence, VG claims that the General Court wrongly classified the letter of agreement as a contract, whereas it consisted of non-binding guidelines set unilaterally by the Commission and governing the functioning of the Team Europe network. The Commission never claimed that the relationship was contractual in nature, as evidenced by paragraph 21 of its submissions to the Ombudsman and paragraph 15 of the order of the General Court ruling on VG’s application for legal aid; ( 48 ) the letter of agreement is merely a summary of the rights and obligations governing Team Europe and not of those governing the particular relationship between the Commission and VG; it does not provide for any penalty for its breach nor for the applicable law or competent courts; the letter of agreement uses the term ‘duties’ and not ‘obligations’, thus referring to mere rules of behaviour and not to actual legal relations between the persons concerned. The Commission belatedly changed its position and relied on the contractual nature of the letter of agreement. The common intention of the parties was never to mutually bind each other by contract. Intention is a determining factor in the classification of an act as a contract, as evidenced by paragraph 102 of Principles of European Contract Law. ( 49 ) Therefore, the General Court wrongly classified the letter of agreement as a contract, distorted that letter and breached its obligation to state reasons. The order under appeal did not identify the applicable law in order to classify the letter of agreement as a contract, which was necessary if — quod non — the said letter was a contract. The Commission maintains that French law would apply. However, in accordance with Articles 1101 ( 50 ) and 1156 ( 51 ) of the French Civil Code, it would not be possible to classify the letter of agreement as a contract within the meaning of French law in the absence of an intention on VG’s part to commit to it and, given that there is no reason for him to believe that a contract would have been signed, the content of which was solely determined by the Commission which never referred to its contractual nature. Furthermore, under French law, a contract provides for enforceable obligations. ( 52 ) However, the letter of agreement does not compel compliance with the rights and duties thereunder nor does it make provision for penalties or enforcement and each party may withdraw from it at any time. The contractual nature of the letter of agreement does not therefore arise as a result of the intention or will of the parties nor from the text drawn up by the Commission. It follows that, even under French law, the letter of agreement would not be classified as a contract. The General Court therefore also distorted the letter of agreement and erred in law by ruling, in paragraph 39 of the order under appeal, that the subject matter of the action was a claim for damages of a contractual nature.

37. The Commission argues that the General Court has exclusive jurisdiction to establish the facts, except where there has been distortion, which must be manifest and must arise without there being any need to have recourse to new evidence. That is not the case here. Furthermore, the applicant simply relies on the same arguments as those already submitted to and examined by the General Court and which are therefore inadmissible. The Commission’s statements before the Ombudsman do not deprive the contract of its effect and should be interpreted as meaning that the Commission refuted that the letter of agreement was a contract of employment. By contrast, the Commission did not exclude the possibility that it could be a membership contract. VG has not explained how the intention of the parties could conflict with the clear and unambiguous provisions of the letter of agreement. The arguments in relation to the concept of the intention of the parties were new, and therefore inadmissible, even if, in any event, the intention of the parties to agree to a set of rights and obligations was clear. The arguments regarding the concept of a contract within the meaning of French law were also new. The interpretation of French law is, in any event, a question of fact on which the General Court has exclusive jurisdiction. The argument relating to enforcement was advanced for the first time at the appeal stage and is therefore inadmissible. That enforcement is not, in any event, a necessary condition for classification as a contract.

38. Finally, the Commission adds that the application by VG for the production of confidential documents tends to confirm the link between the damage suffered and the breach of a contractual relationship rather than the handling of the complaint by Ms X. The Commission recalls that that application was the subject of two appeals before the General Court. ( 53 ) As for the application for an injunction, according to settled case-law, that does not fall within the powers of the Court of Justice. ( 54 )

39. In his reply, VG notes that the second plea is based, not only on distortion, but also on an incorrect legal classification of the letter of agreement and on a breach of the obligation to state reasons. The Commission did not sufficiently identify in the appeal the arguments which it claims are simply the reiteration of those presented before the General Court. As for the argument relating to the intention of the parties, VG disputes that it is a new argument since it relates to the analysis of the legal relations between the parties within the meaning of the judgment of 18 April 2013, Commission v Systran and Systran Luxembourg. ( 55 ) That analysis necessarily means that the intention of the parties is taken into account. The terms of the letter of agreement are not as clear and unambiguous as the Commission claims, especially since the Commission itself denied its contractual nature in its statements before the Ombudsman. As regards the reliance on French law, VG acknowledges not having referred to it before the General Court but argues that it is relied on only to illustrate the second plea by showing an error in reasoning in the order under appeal and given that the Commission itself argued before the General Court that the law applicable to the assessment of the contractual nature of the letter of agreement should be French law.

40. In its rejoinder, the Commission argues that, if VG developed arguments with respect to the intention of the parties, it is because the non-contractual nature of the letter of agreement is not so obvious. VG has not explained why MS had signed a letter of agreement if it consisted only of guidelines. As regards the argument concerning the application of French law, it is inadmissible at this stage of the proceedings. In any event, the existence of a contract within the meaning of the judgment in Commission v Systran and Systran Luxembourg ( 56 ) can be established without recourse to French law. VG also ignored certain factors capable of revealing the contractual nature of the letter, including its exact title and the final part of the letter devoted to its rescission. The Commission recalls that the General Court ruled on the question of its jurisdiction, without erring in law. Moreover, the Commission argues that VG has confused the plea dealing with the legal classification of the letter of agreement with the plea dealing with distortion. VG pleads distortion of the file but, according to the settled case-law of the Court of Justice, the distortion of evidence must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence. VG must therefore identify precisely the facts or the documents which were distorted by the General Court, instead of which he merely repeats the arguments already developed before the General Court, without demonstrating any material inaccuracy on the part of the General Court. The Commission criticises the applicant for attempting to circumvent the inadmissibility of the action for annulment against the decision to exclude him from Team Europe which he failed to bring in good time. That being so, the Court of Justice should adopt the same approach as that taken in its judgment in Guigard v Commission. ( 57 )

2. Analysis

41. VG’s second ground of appeal can be subdivided into three parts, the first relating to an error of law in the legal classification of the letter of agreement, the second relating to breach of the duty to state reasons and the third relating to distortion of ‘the file’.

42. Following on from my observations in respect of the first ground of appeal, I shall begin my analysis of the second plea with its second part concerning breach of the General Court’s duty to state reasons when classifying the letter of agreement as a contract. For the same reasons as those set out in point 34 of this Opinion, the second part should be upheld.

43. It is clear from reading VG’s comments on the plea of inadmissibility raised by the Commission, that the arguments disputing the contractual nature of the letter of agreement were not discussed by the General Court — for example, the statement of the Commission before the Ombudsman or the Commission’s failure to adopt a position on the nature of the letter of agreement during the course of the proceedings before the General Court regarding the application for legal aid ( 58 ) — or were dismissed without proper explanation. ( 59 ) VG relies, moreover, on paragraph 80 of the judgment in Commission v Systran and Systran Luxembourg, ( 60 ) according to which ‘it is not sufficient to allege simply any contractual relationship … or obligations of contractual origin not envisaging the conduct in dispute in order to be able to change the nature of the dispute by giving it a contractual basis’, inferring therefrom that the mere existence of a contract does not prevent the bringing of an action seeking to engage the non-contractual liability of the European Union. Therefore, the classification of the letter of agreement as a contract by the General Court appears to be inadequately reasoned.

44. Having regard to the foregoing, it is only for the sake of completeness that I shall examine the other parts of the second ground of appeal.

45. As regards the first part of the second ground of appeal, VG argues that the General Court erred in law by classifying the letter as a contract. The General Court should have taken into account the intention of the parties, as required by paragraph 102 of the Principles of European Contract Law. VG criticises the General Court for not having determined the law applicable to the contract, in the light of which the classification as a contract should be examined. If that law is French law, as the Commission claims, the General Court ought, in particular, to have paid attention to the intention of the parties and to whether enforcement of the alleged obligations deriving from the letter of agreement could be achieved.

46. As regards the argument relating to the intention of the parties, the order under appeal does not in fact make any mention thereof, as pointed out by VG, but the applicant did not discuss the issue in the observations on the objection of inadmissibility made by the Commission before the General Court nor plead the Principles of European Contract Law. The same is true of the question relating to enforcement. Those arguments must therefore be viewed as inadmissible because they are new. ( 61 ) In the same way, there was no debate before the General Court, as acknowledged by VG, on the determination of the law applicable to the contract nor on French law. The General Court did not, in any event, enter the field of private law rights in order to classify the letter of agreement as a contract. In those circumstances, no criticism can be made of the analysis of the General Court, according to which an argument regarding an incorrect understanding or application of French law may be derived.

47. As regards the last part of the second ground of appeal, it must be borne in mind that, in accordance with Article 256(1) TFEU and paragraph 1 of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court accordingly has exclusive jurisdiction to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and to assess the evidence presented. The establishment of those facts and the assessment of that evidence do not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject to the review by the Court of Justice. ( 62 ) Such a distortion must be obvious from the documents in the Court’s file, without any need to carry out a new assessment of the facts and the evidence. ( 63 )

48. Distortion is therefore intrinsically linked to the assessment of the facts. However, VG submits that there has been distortion of the letter of agreement due to its legal ‘classification’ as a contract by the General Court. Thus, this criticism does not deal with distortion of facts, in the classic sense of the case-law of the Court of Justice, noted above, but rather an error in the classification of the letter of agreement. Understood in that way, it does not comprise a complaint that is distinct from that already examined in the context of the second part of the second plea and therefore requires no further discussion.

C. The jurisdiction of the EU Courts to rule on VG’s application

49. In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court may, after quashing the decision of the General Court, itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment. The order should, in my view, be quashed and the Court could resolve the question of the competence of the EU courts to hear the application brought by VG.

50. It is clear from the all the relevant evidence in the file that the Court should duly take into account that VG seeks to establish the liability of the European Union in relation to the conduct of the Commission in its handling of the complaint by Ms X against him. VG alleges infringement of Article 41 of the Charter, the general principles of good administration, respect for the rights of the defence, Article 16 of the Code of Good Administrative Behaviour, the principles of diligence and the presumption of innocence as well as the obligation to state reasons and the principle of proportionality. The alleged loss is non-material, the Commission having allegedly damaged VG’s honour, dignity and reputation.

51. It is therefore clear from that body of evidence that the liability sought appears to be prima facie non-contractual. It remains to be determined whether the document signed by both parties changes that finding.

52. The letter of agreement and membership does not expressly define its contractual nature. The preamble states that it is merely a summary of the rights and obligations arising from ‘membership’ of Team Europe. There is no part of the letter which suggests that it has a particular force or that it is, at the very least, comparable to a contract. In particular, there is no reference to a possible penalty for failure to comply with the letter of agreement. The letter does not specify the law applicable or the courts competent to hear any dispute. Point 5, second paragraph, of the letter of agreement provides that the parties can, at any time, in writing, withdraw from the rights and obligations established under the said letter. Prior to the commencement of the action, the Commission itself was not convinced of the contractual nature of the letter of agreement.

53. It cannot be inferred from the foregoing that there is a genuine contractual context surrounding VG’s application, within the meaning of the judgment in Commission v Systran and Systran Luxembourg ( 64 ) and there is no need for further discussion on the concept of contract in the factual context of this case. I would add that to infer the contractual nature of the letter of agreement merely from the wording of point 5 thereof, would amount to a specific and concrete analysis of the content of the alleged contract, which the Court ruled out in paragraphs 76 and 77 of that judgment because it involves an assessment of the substance of the dispute and not the determination of the very nature thereof.

54. In any event, it is clear from the foregoing that it is not apparent from the file that the interpretation of the letter of agreement as a contract is necessary to substantiate the claims of VG.

55. Contrary to what the Commission claims, the facts of the case are not comparable to those which gave rise to the judgment of 20 May 2009, Guigard v Commission. ( 65 ) That case concerned a challenge to the non-renewal of an employment contract concluded with the Commission. The applicant sought to engage the non-contractual liability of the European Union in respect of the refusal to renew his contract of employment. Whilst the General Court held that, because of the rules relied on in respect of the infringement ( 66 ) and because it involved concluding a new contract, the appeal could be regarded as falling within the non-contractual liability of the European Union and could, for that reason, be submitted to the EU Courts, the Court of Justice did not adopt that approach and ruled that the action was not severable from the contractual links between the parties to the contract of employment, especially since the conditions under which the contract could be renewed were determined in the contract itself. ( 67 ) The contractual context was entirely clear and the parties did not dispute having been contractually bound. That is a fundamental difference compared with the circumstances of the present appeal, with the result that no lesson can be learned from that precedent for the resolution of this case.

56. It therefore follows from the foregoing analysis that the claim for compensation made by VG is not based, objectively and overall, on obligations of a contractual origin. The subject matter of the application for damages is therefore non-contractual in nature. It falls within the General Court’s jurisdiction, as defined in Article 268 TFEU.

57. Whilst the appeal must be upheld and the action brought before the General Court declared admissible, the state of the proceedings does not permit a judgment on the substance. In those circumstances, it is necessary to refer the case back to the General Court, in accordance with Article 61 of the Statute of the Court of Justice of the European Union.

V. Costs

58. According to my analysis, the case should be referred back to the General Court and costs should be reserved.

VI. Conclusions

59. Having regard to all the foregoing considerations, I propose that the Court should rule that: (1) The order of the General Court of the European Union of 31 May 2017, MS v Commission (T‑17/16, not published, EU:T:2017:379) is set aside. (2) The action brought by VG in Case T‑17/16 is admissible. (3) As to the remainder, the case is referred back to the General Court. (4) Costs are reserved.

( 1 ) Original language: French.

( 2 ) MS v Commission (T‑17/16, not published, EU:T:2017:379).

( 3 ) Following the death of MS on 16 February 2018, VG, sole successor in title of MS, applied to continue the proceedings as successor in title, which application was granted. For the remainder of the analysis and in the interests of simplification, I shall refer to both the appellant and the applicant before the General Court as ‘VG’.

( 4 ) Order of 3 May 2016, MS v Commission (T‑17/16 AJ, not published, EU:T:2016:446).

( 5 ) Order of 3 May 2016, MS v Commission (T‑17/16 AJ, not published, EU:T:2016:446, paragraph 15).

( 6 ) Order of 3 May 2016, MS v Commission (T‑17/16 AJ, not published, EU:T:2016:446, paragraph 15).

( 7 ) Order of 3 May 2016, MS v Commission (T‑17/16 AJ, not published, EU:T:2016:446, paragraph 16).

( 8 ) Following the death of MS, such reinstatement is no longer proposed and VG removed that form of order from his reply before the Court (see paragraph 10 of that reply).

( 9 ) Order of 3 May 2016, MS v Commission (T‑17/16 AJ, not published, EU:T:2016:446). See also point 5 in fine of this Opinion.

( 10 ) C‑103/11 P, EU:C:2013:245.

( 11 )

( 12 ) Available on https://www.ombudsman.europa.eu/en/publication/en/3510.

( 13 ) C‑103/11 P, EU:C:2013:245.

( 14 ) Judgment of 18 April 2013 (C‑103/11 P, EU:C:2013:245).

( 15 ) Judgment of 18 April 2013 (C‑103/11 P, EU:C:2013:245).

( 16 ) Judgment of 18 April 2013, Commission v Systran and Systran Luxembourg (C‑103/11 P, EU:C:2013:245, paragraph 67).

( 17 ) The Commission relies here on paragraph 65 of the judgment of 18 April 2013, Commission v Systran and Systran Luxembourg (C‑103/11 P, EU:C:2013:245).

( 18 ) The Commission relies here on the order of the Vice-President of the Court of 10 January 2018, Commission v RW (C‑442/17 P(R), not published, EU:C:2018:6, paragraph 66).

( 19 ) VG relies here on the judgment of 18 November 2015, Synergy Hellas v Commission (T‑106/13, EU:T:2015:860, paragraph 150).

( 20 ) The Commission relies here on the judgment of 20 May 2009, Guigard v Commission (C‑214/08 P, not published, EU:C:2009:330), underlining the similarities between it and the present case.

( 21 ) Judgment of 18 April 2013 (C‑103/11 P, EU:C:2013:245).

( 22 ) C‑103/11 P, EU:C:2013:245.

( 23 ) See Article 256(1), Article 268 and Article 340, second paragraph, TFEU.

( 24 ) See Articles 272 and 274 TFEU.

( 25 ) See paragraph 29 of the order under appeal and the case-law cited.

( 26 ) Judgment of 18 April 2013 (C‑103/11 P, EU:C:2013:245).

( 27 ) See judgment of 18 April 2013, Commission v Systran and Systran Luxembourg (C‑103/11 P, EU:C:2013:245, paragraph 64).

( 28 ) See judgment of 18 April 2013, Commission v Systran and Systran Luxembourg (C‑103/11 P, EU:C:2013:245, paragraph 66). Emphasis added.

( 29 ) See judgment of 18 April 2013, Commission v Systran and Systran Luxembourg (C‑103/11 P, EU:C:2013:245, paragraph 66).

( 30 ) See judgment of 18 April 2013, Commission v Systran and Systran Luxembourg (C‑103/11 P, EU:C:2013:245, paragraph 66). Emphasis added.

( 31 ) See judgment of 18 April 2013, Commission v Systran and Systran Luxembourg (C‑103/11 P, EU:C:2013:245, paragraph 67). Emphasis added.

( 32 ) See judgment of 18 April 2013, Commission v Systran and Systran Luxembourg (C‑103/11 P, EU:C:2013:245, paragraph 67).

( 33 ) See paragraph 34 of the order under appeal.

( 34 ) See paragraph 36 of the order under appeal.

( 35 ) See paragraph 37 of the order under appeal.

( 36 ) See paragraph 38 of the order under appeal.

( 37 ) Judgment of 18 April 2013 (C‑103/11 P, EU:C:2013:245).

( 38 ) See paragraph 38 of the application before the General Court.

( 39 ) Paragraph 32 of the order under appeal merely summarises VG’s line of argument detailed in paragraphs 19 to 21 of that order.

( 40 ) See paragraph 33 of the order under appeal.

( 41 ) Paragraph 37 of the order under appeal.

( 42 ) Order of 3 May 2016, MS v Commission (T‑17/16 AJ, not published, EU:T:2016:446).

( 43 ) See order of 3 May 2016, MS v Commission (T‑17/16 AJ, not published, EU:T:2016:446, paragraph 15).

( 44 ) Order of 3 May 2016, MS v Commission (T‑17/16 AJ, not published, EU:T:2016:446, paragraph 16).

( 45 ) Amongst abundant case-law, see judgment of 30 November 2016, Commission v France and Orange (C‑486/15 P, EU:C:2016:912, paragraph 80 and the case-law cited).

( 46 ) Paragraph 36 of the order under appeal.

( 47 ) As is clear from paragraph 37 of the order under appeal.

( 48 ) Order of 3 May 2016, MS v Commission (T‑17/16 AJ, not published, EU:T:2016:446).

( 49 ) See Lando, O., and Beale, H. (ed.), Principles of European Contract Law, Kluwer Law International, The Hague, London, Boston, 2000, p. 394.

( 50 )

( 51 ) ‘One must, in agreements, seek the common intention of the contracting parties, rather than stop at the literal meaning of the words’ (version applicable at the time when the Commission took the decisions at issue).

( 52 ) As provided by Article 1184 of the French Civil Code, in the version prior to 1 October 2016, according to which ‘[the] party complaining of the non-performance of the obligation may either compel the other party to carry out the agreement when that is possible, or demand its rescission with damages’.

( 53 ) Judgment of 27 November 2018, VG v Commission (T‑314/16 and T‑435/16, EU:T:2018:841).

( 54 ) The Commission refers here to the judgment of 22 January 2004, Mattila v Council and Commission (C‑353/01 P, EU:C:2004:42, paragraph 15).

( 55 ) C‑103/11 P, EU:C:2013:245.

( 56 ) Judgment of 18 April 2013 (C‑103/11 P, EU:C:2013:245).

( 57 ) Judgment of 20 May 2009 (C‑214/08 P, not published, EU:C:2009:330).

( 58 ) See paragraph 27 of the comments on the exception of inadmissibility.

( 59 ) For example, the argument based on the absence of the term ‘obligation’ in the letter of agreement, or the reference made in the preamble of the said letter to the summary of rights and obligations which the letter of agreement represents, which confirms that it is limited to establishing guidelines with no binding force.

( 60 ) Judgment of 18 April 2013 (C‑103/11 P, EU:C:2013:245).

( 61 ) Amongst the abundant case-law, see judgment of 17 September 2015, Total v Commission (C‑597/13 P, EU:C:2015:613, paragraph 22 and the case-law cited).

( 62 ) See, amongst abundant case-law, judgments of 3 December 2015, PP Nature-Balance Lizenz v Commission (C‑82/15 P, not published, EU:C:2015:796, paragraphs 26 and 27), and of 15 June 2017, Spain v Commission (C‑279/16 P, EU:C:2017:461, paragraph 36).

( 63 ) See, amongst abundant case-law, judgment of 16 November 2017, Ludwig-Bölkow-Systemtechnik v Commission (C‑250/16 P, EU:C:2017:871, paragraph 39).

( 64 ) Judgment of 18 April 2013 (C‑103/11 P, EU:C:2013:245). I note that, in that judgment, the mere reliance by the Commission on the various contractual documents was sufficient for the finding of a ‘genuine contractual context, linked to the subject matter of the dispute, an in-depth examination of which proves indispensable in order to establish the legality or otherwise of the Commission conduct complained of’ (see judgment of 18 April 2013, Commission v Systran and Systran Luxembourg (C‑103/11 P, EU:C:2013:245, paragraph 81)).

( 65 ) C‑214/08 P, not published, EU:C:2009:330.

( 66 ) Namely, in that case, the fourth Lomé Convention, the principles of good administration, due care and protection of legitimate expectation (see judgment of 20 May 2009, Guigard v Commission (C-214/08 P, not published, EU:C:2009:330, paragraph 43)).

( 67 ) See judgment of 20 May 2009, Guigard v Commission (C-214/08 P, not published, EU:C:2009:330, paragraph 38).