BP v European Union Agency for Fundamental Rights.
Date: 2020-12-17
In accordance with settled case-law, Article 277 TFEU gives expression to a general principle conferring upon any party to proceedings the right to challenge, for the purpose of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous acts of the institutions which form the legal basis of the decision which is being attacked, if that party was not entitled to bring a direct action challenging those acts by which it was thus affected without having been in a position to ask that they be declared void (see, to that effect, judgments of 6 March 1979,  Simmenthal v Commission, 92/78, EU:C:1979:53, paragraph 39, and of 19 January 1984, Andersen and Others v Parliament, 262/80, EU:C:1984:18, paragraph 6).
Furthermore, since the purpose of Article 277 TFEU is not to allow a party to contest the applicability of any act of general application in support of any action whatsoever, the act the legality of which is called in question must be applicable, directly or indirectly, to the issue with which the action is concerned (judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 68 and the case-law cited).
Thus, in an action for annulment brought against individual decisions, the Court has accepted that the provisions of an act of general application that constitute the basis of those decisions or that have a direct legal connection with such decisions may legitimately form the subject matter of an objection of illegality (judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 69 and the case-law cited).
By contrast, the Court has held that an objection of illegality covering an act of general application in respect of which the individual decision being challenged does not constitute an implementing measure is inadmissible (judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 70 and the case-law cited).
In the present case, it appears that, contrary to what the appellant submits, she indeed had the right to bring an action for the annulment of the CDRs which were final with regard to her, as those CDRs were treated as staff reports (see, to that effect, judgment of 22 December 2008, Gordon v Commission, C‑198/07 P, EU:C:2008:761, paragraphs 41 to 45), the adoption of which is required under Article 43 of the Staff Regulations (see, to that effect, judgments of 25 November 1976, Küster v Parliament, 122/75, EU:C:1976:161, paragraphs 9 and 10, and of 12 May 1977, Hebrant v Parliament, 31/76, EU:C:1977:79, paragraphs 6 to 10), that right to bring an action arising without the prior formality of a complaint, within the meaning of Article 90(2) of the Staff Regulations (see, to that effect, judgments of 3 July 1980, Grassi v Council, 6/79 and 97/79, EU:C:1980:178, paragraph 15; of 19 February 1981, Schiavo v Council, 122/79 and 123/79, EU:C:1981:47, paragraph 16; and of 15 March 1989, Bevan v Commission, 140/87, EU:C:1989:126, paragraph 11). As the Court has had occasion to state,  in accordance with the right to effective judicial protection, officials must in any event be acknowledged as having the right to challenge their CDR on account of its content or because it has not been drawn up in accordance with the rules laid down by the Staff Regulations (judgment of 22 December 2008, Gordon v Commission, C‑198/07 P, EU:C:2008:761, paragraph 45).
Therefore, in so far as Decision 2009/13 must be considered to be an implementing rule for the Staff Regulations, within the meaning of Article 110(2) of those regulations, according to the settled case-law of the Court of Justice, the General Court must raise of its own motion any plea as to the lack of competence of the author of the contested measure (see, inter alia, judgment of 14 December 2016, SV Capital v ABE, C‑577/15 P, EU:C:2016:947, paragraph 31 and the case-law cited).
However, it is clear from the case-law of the Court of Justice that an error of law committed by the General Court does not invalidate a judgment under appeal if its operative part is well founded on other legal grounds (judgment of 20 September 2018, Spain v Commission, C‑114/17 P, EU:C:2018:753,  paragraph 62 and the case-law cited).
Therefore, the ground of appeal must be rejected in its entirety, since the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence that the General Court accepted in support of those facts. Provided that that evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced before it. That assessment does not, therefore, constitute, save where the clear sense of that evidence has been distorted, a point of law which is subject, as such, to review by the Court of Justice (judgments of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 23, and of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 75 and the case-law cited).
In that regard, it must be recalled that, according to settled case-law, where all the other grounds put forward in an appeal have been rejected, any ground challenging the decision of the General Court on costs must be rejected as inadmissible by virtue of the second paragraph of Article 58 of the Statute of the Court of Justice of the European Union, under which no appeal is to lie regarding only the amount of the costs or the party ordered to pay them (judgments of 12 July 2001, Commission and France v TF1, C‑302/99 P and C‑308/99 P, EU:C:2001:408, paragraph 31, and of 9 June 2016, CEPSA v Commission, C‑608/13 P, EU:C:2016:414, paragraph 75 and the case-law cited).