ORDER OF THE COURT (Seventh Chamber)

20 January 2021 ( )

(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Civil service – Officials – Sick leave – Failure to attend a medical examination – Opinion of the medical service – Amendments made in the Human Resource Management information system – Acts not amenable to review – Decision on the classification of the absence following the failure to attend – Absence deducted from annual leave – Appeal in part manifestly inadmissible and in part manifestly unfounded)

In Case C‑266/20 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 15 June 2020,

ZU, represented by C. Bernard-Glanz, avocat,

appellant,

the other party to the proceedings being:

European External Action Service (EEAS),

defendant at first instance,

THE COURT (Seventh Chamber),

composed of A. Kumin, President of the Chamber, P.G. Xuereb and I. Ziemele (Rapporteur), Judges,

Advocate General: J. Richard de la Tour,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1 By his appeal, ZU asks the Court to set aside the order of the General Court of the European Union of 31 March 2020, ZU v EEAS (T‑499/19, not published, EU:T:2020:134; ‘the order under appeal’), by which the General Court dismissed as inadmissible ZU’s application for annulment of the alleged decisions of the European External Action Service (EEAS) of 31 August 2018 and of 10 January 2019, of the European Commission note of 30 August 2018 providing for a reduction of his sick leave and, so far as necessary, of the Commission’s decision of 1 April 2019 rejecting his complaint of 30 November 2018 against that note and against any subsequent decision to deduct his absence from 28 to 31 August 2018 from his annual leave.

The appeal

2 Pursuant to Article 181 of the Rules of Procedure of the Court, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

3 It is appropriate to apply that provision in the present case.

4 On 5 November 2020, the Advocate General took the following position:

‘1. By the present appeal, the appellant claims that the Court should, first, set aside the order under appeal and, as a result, grant the form of order he sought at first instance, and, second, order the EEAS to pay the costs relating to the appeal and to the proceedings at first instance.

2. In support of his appeal, the appellant relies on a single ground of appeal, formally alleging infringement of the principle of sound administration, infringement of Article 59(3) of the Staff Regulations of Officials of the European Union (“the Staff Regulations”), manifest distortion of the facts and the evidence and a manifest error of assessment.

3. In support of his first complaint, alleging manifest distortion of the facts and the evidence, the appellant puts forward a number of arguments. First, he claims that the General Court distorted the factual background, set out, inter alia, in paragraph 1 of the order under appeal. Accordingly, the General Court held, in paragraph 1 of the order under appeal, that “the [appellant] … is an official of the European Union who, at the time of the events giving rise to the present dispute, was assigned to the [EEAS] within the EU Delegation to Russia … having its seat in Moscow (Russia)”, referring in that regard to paragraph 1 of the application at first instance, which stated “the [appellant] is an official of the European Commission who, at the time of launching his complaint, was posted at the EU Delegation to Russia”.

4. Second, the appellant criticises the finding, set out in paragraph 13 of the order under appeal, that the Director-General of the European Anti-Fraud Office (OLAF) had not taken a definitive decision as to whether the appellant’s absence from 28 to 31 August 2018 should be categorised as sick leave or annual leave. In that regard, the appellant takes the view that it is apparent from the use of the words “the complainant’s unjustified absence” in the Director-General’s decision (rather than “the assumed unjustified absence” or “the claimant’s absence”), that a decision had already been made. Moreover, the appellant claims that that finding of fact led the General Court to reach an incorrect conclusion in paragraph 46 of the order under appeal.

5. Third, as regards the General Court’s finding in paragraph 28 of the order under appeal, the appellant claims that the General Court manifestly distorted the facts and the evidence by considering that the appellant claimed that acceptance of “the EEAS’s view that neither the note of 30 August 2018 nor the amendments of 31 August 2018 and 10 January 2019 constitute[d] acts open to review [led] to a situation where he [could not] bring an admissible action even though those acts [had] reduced his annual leave”. Relying on his application initiating proceedings and on other documents in the file, the appellant claims that he highlighted a reduction of sick leave.

6. Lastly, fourth, the appellant criticises the General Court’s finding, in paragraph 36 of the order under appeal, that “the results from the [Investigation and Disciplinary Office of the Commission (IDOC)] investigation could actually allow the [appointing authority] to take a final decision on the classification of the [appellant’s] leave days”. In that regard, he claims that, at that time, the EEAS had already taken a decision on the classification of those leave days.

7. As a preliminary point, it should be noted that, according to the settled case-law of the Court of Justice, it is apparent from Article 256 TFEU and from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal lies on points of law only. It follows that, in the context of an appeal, the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts.

8. The jurisdiction of the Court of Justice to review the findings of fact by the General Court therefore extends, inter alia, to the substantive inaccuracy of those findings as apparent from the documents in the file, distortion of the evidence, the legal characterisation of the evidence, and whether the rules relating to the burden of proof and the taking of evidence have been observed (see, inter alia, judgments of 25 January 2007, Sumitomo Metal Industries and Nippon Steel v Commission, C‑403/04 P and C‑405/04 P, EU:C:2007:52, paragraph 39, of 11 May 2017, Dyson v Commission, C‑44/16 P, EU:C:2017:357, paragraph 31, and of 29 November 2018, Bank Tejarat v Council, C‑248/17 P, EU:C:2018:967, paragraph 37).

9. Moreover, it is apparent from settled case-law that there will be distortion where, in particular, the General Court has manifestly exceeded the limits of a reasonable assessment of the evidence (see, inter alia, judgments of 10 February 2011, Activision Blizzard Germany v Commission, C‑260/09 P, EU:C:2011:62, paragraph 57; of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 79; and of 16 February 2017, Hansen & Rosenthal and H&R Wax Company Vertrieb v Commission, C‑90/15 P, not published, EU:C:2017:123, paragraph 48), and that distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (see, inter alia, judgments of 12 January 2017, Timab Industries and CFPR v Commission, C‑411/15 P, EU:C:2017:11, paragraph 89; of 26 October 2017, Global Steel Wire and Others v Commission, C‑457/16 P and C‑459/16 P to C‑461/16 P, not published, EU:C:2017:819, paragraph 25; and of 7 June 2018, Equipolymers and Others v Council, C‑363/17 P, not published, EU:C:2018:402, paragraph 20).

10. In the present case, the appellant maintains that, in paragraph 28 of the order under appeal, the General Court incorrectly set out the arguments he put forward at first instance. Although this argument does not appear entirely unfounded, it must be noted that the appellant does not indicate how such an incorrect presentation of his arguments, if established, would be liable to affect the validity of the order under appeal. Therefore, that argument is ineffective.

11. The other arguments put forward by the appellant in the context of this complaint do not lead to the conclusion that the General Court manifestly exceeded the limits of a reasonable assessment of the facts as apparent from the documents in the file, and must, therefore, be rejected as manifestly unfounded.

12. It follows that the first complaint raised in support of the single ground of appeal must be rejected as, in part, ineffective and, in part, manifestly unfounded.

13. By his second complaint, alleging a manifest error of assessment on the part of the General Court, the appellant puts forward a number of arguments identifying, in essence, alleged errors or lacunae in the General Court’s reasoning. In the first place, he criticises the General Court for defining, in paragraph 31 of the order under appeal, an act adversely affecting an official, without classifying the acts of 30 and 31 August 2018 as such acts. He claims that his sick leave was reduced by four days, since it ended on 27 August 2018 and not 31 August 2018. Thus, according to the appellant, that reduction of sick leave constitutes a sanction provided for in Article 59(1) of the Staff Regulations and gives rise to a change in his legal situation. In that regard, the appellant adds, first, that IDOC opened an investigation into his absence from 28 to 31 August 2018 and, second, that that investigation prevented him from being able to submit his timesheets into the Human Resource Management information system, Sysper.

14. In the second place, the appellant criticises the General Court’s reasoning in paragraphs 33 and 34 of the order under appeal, by which it classified the note of the Commission’s medical officer of 30 August 2018 as a preparatory act. The appellant claims that, by referring to that note, the EEAS took account of the appellant’s unjustified absence by withdrawing part of his sick leave in Sysper. Thus, the EEAS attributed to him the responsibility for his failure to attend the medical examination required by the medical service, in breach of the third subparagraph of Article 59(1) of the Staff Regulations.

15. In the third place, the appellant criticises the General Court’s findings in paragraph 35 of the order under appeal, maintaining that he was unable to submit his subsequent timesheets for approval on account of the uncertainty as regards the classification of the four days of leave corresponding to the period from 28 to 31 August 2018, and that he asked the Head of the Delegation, on 12 November 2018, to take remedial action. However he did not receive a reply and no actions were taken by the Head of the Delegation following that request.

16. In the fourth place, as regards the rule of correspondence applied by the General Court in paragraphs 38 to 42 of the order under appeal concerning the amendment made in Sysper on 10 January 2019, the appellant claims a manifest error of assessment. In that regard, the appellant reiterates his line of argument set out in his observations on the proceedings at first instance and claims that that amendment was not decisive in the assessment of whether the action was admissible. Accordingly, the appellant claims that the “annotation” of 10 January 2019 in Sysper is in fact a correction of an error made by the EEAS’s leave manager in the “annotation” of 31 August 2018. On that date, that leave manager deducted sick leave from 20 to 31 August 2018, which was prima facie unlawful on account of the fact that, according to Article 59 of the Staff Regulations, sick leave may be deducted as of the date of the scheduled medical examination. The correction of 10 January 2019 limiting the deduction of sick leave by that leave manager to the period from 28 to 31 August 2018 was made by the staff of the Commission and not of the EEAS since, according to the appellant, the EEAS’s leave manager no longer had access to his Sysper file following his transfer from the Delegation to OLAF. In the appellant’s view that fact does not alter the relevance of the application, in particular as regards the identification of the defendant, given that the annotation of 10 January 2019 was made only after the appellant had brought his complaint, that is to say it was the consequence of his complaint, and the Commission’s leave manager must have acted on behalf of the EEAS’s leave manager since issues relating to absences and sick leave of persons posted to the delegations fall under the competence of the latter.

17. In the fifth place, the appellant criticises the General Court’s finding, inter alia in paragraph 48 of the order under appeal, that “the application for annulment of the decision rejecting the complaint lacks independent content”. In that regard, the appellant states that the appointing authority rejected his request for protection from retaliation as a consequence of whistleblowing by concluding that “no decision adversely affecting the complainant [had] been taken”. Accordingly, his request for recognition as a whistleblower had been rejected, following the appointing authority’s incorrect conclusion that there had been no change to the appellant’s legal situation.

18. As regards the second complaint raised in support of the single ground of appeal, it is necessary to note that, in the guise of a plea based on a manifest error of assessment on the part of the General Court, the appellant attempts, in fact, to elicit from the Court a new assessment of the facts.

19. In that regard, the requirements referred to in point 8 of the present position have not been met in so far as the appeal, without even including an argument specifically identifying an error of law allegedly vitiating the order under appeal, confines itself to reproducing the pleas in law and arguments previously submitted to the General Court. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court (see, to that effect, judgment of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraphs 49 to 51).

20. In the present case, the appellant merely criticises the General Court’s assessment of the various elements of fact that he claims he adduced, in the context of his action, for the purpose of establishing that his legal situation was actually affected by the acts and measures adopted, without, however, providing the slightest precision as to why he considers that assessment is vitiated by material inaccuracies or by a distortion of those facts.

21. It follows that the appeal constitutes, in that regard, a request for re-examination of the application submitted to the General Court.

22. The second complaint relied on by the appellant in support of his single ground of appeal must, therefore, be rejected as manifestly inadmissible.

23. By his third complaint, alleging infringement of Article 59(3) of the Staff Regulations, the appellant claims that the General Court misapplied that provision, which constitutes the legal basis for reducing the annual leave balance in the event of unjustified absence. Thus, first, he notes that, in paragraph 35 of the order under appeal, the General Court held that the administration had not adopted a final decision as regards the classification of the appellant’s absence during the last week of August 2018. Second, the appellant relies on the expression “where appropriate”, used in Article 59(3) of the Staff Regulations, in order to highlight the fact that that provision does not make a necessary connection between an unjustified absence and the deduction of annual leave. In other words, according to the appellant, the administration may deduct annual leave but is not obliged to do so. As a result, contrary to what the General Court held in the present case, it cannot be necessarily inferred from the fact that no deduction of annual leave days had been made that the administration had not adopted a position. Since the administration enjoys discretion in this matter (“where appropriate”), the administration may have adopted a definitive position on the appellant’s absence without making such a deduction.

24. In that regard, it must be stated that it is clear from Article 59(3) of the Staff Regulations that “without prejudice to the application of the rules on disciplinary proceedings, where appropriate, any absence considered to be unjustified under paragraphs 1 and 2 shall be deducted from the annual leave of the official concerned” and that “in the event that the official has no outstanding leave entitlement, he shall lose the benefit of his remuneration for the corresponding period”. Thus, it is apparent from the very wording of that provision that the use of the expression “where appropriate” does not mean, contrary to what the appellant submits, that the administration may come to a final decision that the absence should be held to be unjustified without necessarily adopting the measures referred to in that provision; rather, it simply indicates that those measures are to be taken without prejudice to the application of disciplinary measures. Therefore, the General Court cannot be criticised for holding that the submission that the appointing authority had not adopted a final decision as to the categorisation of the appellant’s absence at issue was confirmed by the fact that no decision to deduct that absence from the appellant’s annual leave had been taken.

25. Accordingly, the third complaint relied on in support of the single ground of appeal must be rejected as manifestly unfounded.

26. By the fourth and last complaint relied on in support of the single ground of appeal, alleging infringement of the principle of sound administration, the appellant refers to paragraph 36 of the order under appeal, by which the General Court held that the opening of an investigation by IDOC did not transform the amendments made in Sysper into an act which changed the appellant’s legal position. In that regard, the appellant makes a number of observations aimed, in essence, at challenging some of the General Court’s assessments of fact.

27. The appellant raises no specific argument in support of that complaint and thus merely relies on certain elements of fact only.

28. According to the settled case-law of the Court, it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Articles 168(1)(d) and 169 of the Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment or order which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of that appeal, failing which the appeal will be inadmissible (order of 24 November 2016, Petraitis v Commission, C‑137/16 P, not published, EU:C:2016:904, paragraph 16).

29. Accordingly, this complaint must be rejected as manifestly inadmissible.

30. In any event, it must also be stated that the appellant merely reiterates, in the context of his appeal, the arguments he put forward at first instance, with the result that those arguments could also be rejected as manifestly inadmissible on that ground.

31. As a result, it follows from the foregoing considerations that the fourth complaint relied on in support of the single ground of appeal must be rejected as manifestly inadmissible.

32. Since none of the complaints relied on in support of the single ground of appeal have been upheld, the ground of appeal must be rejected in its entirety.

33. As a result, the appeal must be dismissed in its entirety as, in part, manifestly inadmissible and, in part, manifestly unfounded and the appellant must be ordered to pay the costs incurred in the proceedings, in accordance with Article 137 and Article 184(1) of the Rules of Procedure.’

5 As regards the second complaint relied on in support of the single ground of appeal, it should be added, in the first place, that the appellant criticises the General Court for classifying, in paragraphs 33 and 34 of the order under appeal, the note of the Commission’s medical officer of 30 August 2018 as a preparatory act for the decision that the appointing authority must take as to whether the appellant’s absence from 28 to 31 August 2018 should be categorised as sick leave or annual leave, while omitting the fact that the medical officer had attributed the responsibility for the appellant’s failure to attend the medical examination to the appellant. The General Court should have held that that attribution led to a misapplication of Article 59(1) of the Staff Regulations.

6 In that regard, it should be noted that, under the third subparagraph of Article 59(1) of the Staff Regulations, an official on sick leave may at any time be required to undergo a medical examination arranged by the institution which employs him or her.

7 The purpose of that examination is to establish whether the official’s temporary absence may be considered to be medically justified and to confirm or rebut the presumption, which arises from the presentation of a medical certificate, that the absence is lawful (see, to that effect, judgments of 27 April 1989, Fedeli v Parliament, 271/87, EU:C:1989:175, and of 19 June 1992, V. v Parliament, C‑18/91 P, EU:C:1992:269, paragraphs 32 and 33).

8 It also follows from the third subparagraph of Article 59(1) of the Staff Regulations that, if the examination cannot take place for reasons attributable to the official, his or her absence is to be considered unauthorised.

9 In the present case, the General Court held, as regards the wording of the note of the Commission’s medical officer of 30 August 2018, drawn up following the appellant’s non-appearance at the medical examination scheduled for 28 August 2018, that that note constituted a preparatory act for the decision that the appointing authority had to take as to whether the appellant’s absence from 28 to 31 August 2018 was to be categorised as sick leave or annual leave.

10 It follows that the General Court took the view that only the appointing authority was able to take a final decision as to the nature of the appellant’s absence and that the appointing authority’s decision and not the medical officer’s note stating that the official had failed to attend the medical examination, was open to challenge.

11 Therefore, it is in an action against the decision of the appointing authority that it is for the General Court to assess, where appropriate, whether attributing the responsibility for the appellant’s failure to attend the medical examination to the appellant is justified and in accordance with the third subparagraph of Article 59(1) of the Staff Regulations.

12 As regards decisions which are reached in several stages, in particular where they are the culmination of an internal procedure, only a measure definitively establishing the position of the institution at the conclusion of that procedure, and not preparatory acts for the final decision, are acts adversely affecting an official and, as such, open to challenge. It is only in an action brought against the decision taken at the end of that procedure that an applicant may challenge, as an incidental matter, the legality of those preparatory acts (see, by analogy, order of 7 April 2005, Van Dyck v Commission, C‑160/04 P, not published, EU:C:2005:207, paragraph 32).

13 As a result, the argument that the General Court erred in law by failing to find that attributing the responsibility for the appellant’s failure to attend the medical examination to him is contrary to Article 59(1) of the Staff Regulations, must be rejected as manifestly unfounded.

14 In the second place, the appellant challenges the findings, set out in paragraph 35 of the order under appeal, that ‘it is not apparent either from the extract from Sysper … or any other document from the file that, on 31 August 2018, the appointing authority had adopted a final decision as regards how to categorise the [appellant]’s absence during the last week of August 2018’ and ‘moreover, in the application, the [appellant] admits that, when he lodged his complaint of 30 November 2018, no decision to deduct the allegedly unauthorised absence from his annual leave had been taken’. The appellant is of the view that those findings do not accurately reflect the facts and the evidence, and believes he provided evidence that the appointing authority considered that the period from 28 to 31 August 2018 was not sick leave and took, in that regard, a decision open to judicial review.

15 Those arguments, in the guise of claiming an alleged error of law, seek, in fact, to elicit from the Court a new assessment of the facts and the evidence presented at first instance, without any distortion of those facts and that evidence having been raised.

16 Therefore, in accordance with the case-law cited in point 8 of the Advocate General’s position, those arguments must be rejected as manifestly inadmissible.

17 In the third place, the appellant criticises the General Court for holding, in paragraph 36 of the order under appeal, that the appellant’s argument that the amendments of 31 August 2018 prevented him from submitting his timesheets to Sysper does not demonstrate how those amendments brought about a distinct change in his legal position. He argues that the General Court made a manifest error of assessment by disregarding the fact that the sick leave had been reduced compared to its initial status and that there was no other reason given to explain the appellant’s absence.

18 In that regard, it should be noted that the appellant, in essence, merely repeats the arguments he has already presented before the General Court, without developing any specific legal argument capable of challenging the General Court’s assessments. Accordingly, on the basis of the case-law cited in point 28 of the Advocate General’s position, it is appropriate to reject those arguments as manifestly inadmissible.

19 For those reasons and for those given by the Advocate General, the appeal must be dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded.

Costs

20 Under Article 137 of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. In the present case, since this order was adopted before the appeal was served on the other party to the proceedings and therefore before the latter could have incurred costs, the appellant must be ordered to bear his own costs.

On those grounds, the Court (Seventh Chamber) hereby orders:

1. The appeal is dismissed as, in part, manifestly inadmissible and, in part, manifestly unfounded.





2. ZU shall bear his own costs.





Luxembourg, 20 January 2021.





A. Calot Escobar A. Kumin