Case T-334/21: Action brought on 12 June 2021 — Mendes de Almeida v Council
Date: 2021-06-12
Institutions: General Court
Subjects: European Public Prosecutor's Office, abuse of power, administrator, appointment of members, equal treatment, public prosecutor's department, right to justice, servant (EU), staff regulations (EU)








C_2021320EN.01004601.xml










9.8.2021   


EN


Official Journal of the European Union


C 320/46






Action brought on 12 June 2021 — Mendes de Almeida v Council
(Case T-334/21)
(2021/C 320/52)
Language of the case: Portuguese

Parties


Applicant: Ana Carla Mendes de Almeida (Sobreda, Portugal) (represented by: R. Leandro de Vasconcelos and M. Marques de Carvalho, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the General Court should:






—


annul the decision of the Council of 8 March 2021 concerning the complaint and supplementary complaint made by the applicant under Article 90(2) of the Staff Regulations of Officials of the European Union against Council Implementing Decision (EU) 2020/1117 of 27 July 2020 appointing the European Prosecutors of the European Public Prosecutor’s Office, in the part which appoints José Eduardo Moreira Alves d’Oliveira Guerra, one of the three candidates initially nominated by Portugal, 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 (OJ 2020 L 244, p. 18);










—


annul Council Implementing Decision (EU) 2020/1117 of 27 July 2020 appointing the European Prosecutors of the European Public Prosecutor’s Office, in the part which appoints José Eduardo 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;










—


order the Council of the European Union to pay the costs of both parties.





Pleas in law and main arguments

In support of her action, the applicant relies on six pleas on law:






1.


First plea in law, alleging manifest error of assessment, in that the Council considers that it is not the ‘Appointing Authority’ (‘AA’) under Article 1(1) and (2) of the Staff Regulations, read in conjunction with Article 6 of the Conditions of Employment of Other Servants of the European Union, where it appoints European Prosecutors under Article 96(1) of Regulation 2017/1939.










2.


Second plea in law, alleging infringement of the rules applicable to the appointment of European Prosecutors, which guarantee the principle of the independence of the European Public Prosecutor’s Office. The applicant claims that the Portuguese Government’s challenge, made by letter of 29 November 2019, to 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, calls into question the structure of the procedure for the appointment of European Prosecutors.










3.


Third plea in law, alleging manifest error in the premisses of the decision. The applicant claims, in particular, that the letter of 29 November 2019, sent by the Portuguese Government to the Council, contains two serious errors, as acknowledged by the Government itself. These were: (i) the reference to the Portuguese Government’s preferred candidate, made six times, as ‘Deputy Public Prosecutor José Guerra’ and (ii) the assertion that that prosecutor had an investigative and prosecuting role in an important trial relating to offences against the financial interests of the European Union.










4.


Fourth plea in law, alleging misuse of power. The applicant claims that the objectives at issue — in the light of which powers were conferred on the Council of the European Union in the context of the procedure for the selection and appointment of European Prosecutors — are to ensure the independence of the body and to appoint the best-qualified national candidates whose independence is beyond doubt to the post of European Prosecutor.










5.


Fifth plea in law, alleging breach of the right to good administration. The applicant claims that, inasmuch as the Council departed from the selection panel’s opinion and, therefore, from the order of priority based on the outcome of that panel’s assessment, a general reasoning in the form of a mere single reference to a ‘different assessment of the candidates’ merits made within the relevant preparatory bodies of the Council’, is tantamount to a complete lack of reasoning, making it impossible for the applicant to know the reasons for that departure.










6.


Sixth plea in law, alleging infringement of the principle of equal treatment and non-discrimination. The applicant claims that the Council, by conducting ‘the different assessment of the candidates’ merits made within the relevant preparatory bodies of the Council’, infringed the principle of equal treatment and non-discrimination, as far as the applicant is concerned.