Appeal brought on 17 September 2021 by Ana Carla Mendes de Almeida against the order of the General Court (Ninth Chamber) delivered on 8 July 2021 in Case T-75/21 Ana Carla Mendes de Almeida v Council of the European Union

(Case C-576/21 P)

(2021/C 471/37)

Language of the case: Portuguese

Parties

Appellant: Ana Carla Mendes de Almeida (represented by: R. Leandro Vasconcelos, M. Marques de Carvalho and P. Almeida Sande, advogados)

Other party to the proceedings: Council of the European Union

Form of order sought

The appellant submits that the Court should:

— set aside the decision of the General Court in Case T-75/21, contained in the order of that Court (Ninth Chamber) of 8 July 2021, which dismisses as inadmissible, since it is out of time, the action brought by the appellant, under Article 263 of the Treaty on the Functioning of the European Union (TFEU), against Council Implementing Decision (EU) 2020/1117 (1) of 27 July 2020 appointing the European Prosecutors of the European Public Prosecutor’s Office, in so far as it appoints Mr Moreira Alves d’Oliveira Guerra as European Prosecutor of the European Public Prosecutor’s Office as temporary agent at grade AD 13 for a non-renewable period of three years from 29 July 2020;

— pursuant to Article 61 of the Statute of the Court of Justice, there being no grounds to consider that the state of the proceedings does not permit a decision by the Court of Justice, itself give final judgment on the dispute, since it has available to it all the legal and factual elements necessary to do so;

— give a ruling on costs, in accordance with Article 38 of the Statute of the Court of Justice, ordering the Council to bear its own costs and pay those incurred by the appellant, in the proceedings before the General Court and in the proceedings before the Court of Justice, in accordance with Article 138 of the Rules of Procedure of the Court of Justice.

Grounds of appeal and main arguments

In support of her appeal, the appellant relies on three grounds of appeal:

First ground of appeal: manifest error of assessment and error of law, in that the General Court found that the period for instituting proceedings begins to run from the date of publication of the contested decision in the Official Journal of the European Union, in breach of the general principle of EU law of the right to effective judicial protection and Article 47 of the Charter of Fundamental Rights of the European Union, (2) together with the applicable rules under Regulation (EU) 2017/1939, (3) which ensure that the rights of candidates are protected, as follows from the general scheme thereof and the principle of the independence of the European Public Prosecutor’s Office, enshrined in Article 6 of that regulation

The appellant relies on a manifest error of assessment and an error of law in so far as the General Court found that the period for instituting proceedings begins to run from the date of publication of the contested decision in the Official Journal of the European Union. The appellant did not, at that date, have the elements allowing her to challenge the contested decision under Article 263 TFEU on the basis of the pleas in law relied on in the action brought before the General Court, which arise, first, from the letter from the Portuguese Government, sent to the Council of the European Union on 29 November 2019, disputing the classification made by the selection panel referred to in Article 14(3) of Regulation (EU) 2017/1939 of the candidates submitted by the Portuguese Government itself and indicating a separate preferred candidate and, second, from the fact that the Council accepted that letter. The General Court disregarded the existence of that letter, which forms the basis of the contested decision, contains two material errors and calls into question the structure of the procedure for the appointment of European Prosecutors and the independence thereof. The Council only disclosed the aforementioned letter to the appellant on 27 November 2020, expressly for the purposes of exercising its rights of defence. The appellant disputes the finding, made by the General Court in the order under appeal, that the period for instituting proceedings could begin to run prior to that date, as this constitutes an infringement of the general principle of the right to effective judicial protection and of Article 47 of the Charter of Fundamental Rights of the European Union, as well as of the principle of the independence of the European Public Prosecutor’s Office, enshrined in Article 6 of Regulation (EU) 2017/1939.

Second ground of appeal: manifest error of assessment and error of law in so far as the General Court held that the Council communicated the individual grounds of the contested decision on 7 October 2020, in breach of the general principle of EU law of the right to effective judicial protection and of Article 47 of the Charter of Fundamental Rights of the European Union

The appellant relies on a manifest error of assessment and an error of law in so far as the General Court found that, in any event, the appellant was made aware of the contested decision by the letter of 7 October 2020, in which the Council communicated the individual grounds of that decision to the appellant. In that letter, however, the Council does not inform the appellant of the existence of the Portuguese Government’s letter sent to the Council of the European Union on 29 November 2019, without which there would be no cause of action justifying the bringing of an action against the contested decision.

Third ground of appeal, in the alternative: failure to apply or excessively restrictive application of the case-law referring to excusable error and failure to consider the plea relating to the existence of unforeseen circumstances or force majeure

It is settled case-law that the full knowledge of the finality of a decision and of the time limit for bringing an action under Article 263 TFEU does not, in itself, prevent an individual from pleading excusable error to justify his or her action being out of time. The General Court failed to consider, in the order under appeal, the fact that the Council had concealed the letter from the Portuguese Government until it informed the appellant thereof on 27 November 2020. Such a situation is capable of constituting, in accordance with the case-law of the Court of Justice, an excusable error justifying the action being out of time. The General Court also disregarded the plea of unforeseen circumstances or force majeure as an argument that would permit a derogation from the application of provisions of EU law on procedural time limits.

(1) OJ 2020 L 244, p. 18.

(2) OJ 2000 C 364, p. 1.

(3) Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) (OJ 2017 L 283, p. 1).