BP v European Union Agency for Fundamental Rights.
Date: 2020-09-16
In the first place, as regards the question whether the General Court made an error of assessment by dismissing as inadmissible the application to introduce a new plea in law, it is clear from established case-law that statements regarding the subject matter of the dispute and a summary of the pleas in law contained in any application initiating proceedings must be sufficiently clear and precise to enable the defendant to prepare its defence and the EU judicature to rule on the application. Likewise the form of order sought by such an application must be set out unambiguously so that that court does not rule ultra petita or indeed fail to rule on a complaint (judgments of  3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217,  paragraph 39  and the case-law cited, and of 26 January 2017, Mamoli Robinetteria v Commission, C‑619/13 P, EU:C:2017:50, paragraph 31).
An event must be  considered to be a factor allowing a new plea in law to be raised  if it is capable of changing the legal situation which existed at the time that the application was lodged. However, an event  which merely confirms a legal situation of which the applicant at first instance was aware when he or she brought the action does not constitute a new element that is capable of justifying the production of a new plea in law (see, to that effect, judgment of 14 October 2014, Buono and Others v Commission, C‑12/13 P  and  C‑13/13 P, EU:C:2014:2284,  paragraphs 58  and 60).
Lastly, as regards the  argument that the General Court should have reclassified the plea in law submitted on 11 July 2017 as a plea that constitutes an amplification of a plea previously advanced, namely the first plea put forward in support of the appellant’s  claim for compensation, which, in accordance with the case-law (see, in particular,  judgments of 20 December 2017, Spain v Council, C‑521/15, EU:C:2017:982, paragraph 141  and the case-law cited, and of 4 December 2019, H v Council, C‑413/18 P, not published, EU:C:2019:1044 paragraph 28), should have been declared admissible, this,  also, cannot be accepted.
In the second place, as regards the appellant’s argument that the judgment under appeal is vitiated by an infringement of her right to be heard and her right to a fair trial and breach of the principle of good administration, it follows from Article 256  TFEU, from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and from Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (judgment of 20 September 2016, Ledra Advertising and Others v Commission  and ECB, C‑8/15 P  to  C‑10/15 P, EU:C:2016:701, paragraph 35  and the case-law cited).
In the context of an action to establish non-contractual liability, it is for the applicant to adduce evidence before the Courts of the European Union to establish the reality and extent of the damage which the applicant claims to have sustained. While the Courts of the European Union have acknowledged that, in certain cases, particularly where it is difficult to express the alleged damage in figures, it is not absolutely necessary to particularise its exact extent in the application or to calculate the amount of the compensation claimed (judgment of 28 February 2013, Inalca and Cremonini v Commission, C‑460/09 P, EU:C:2013:111 paragraph 104  and the case-law cited), an  applicant should not be permitted, in the absence  of further details of the existence, if any, of special circumstances justifying the failure to specify the heads of damage included in the application, to extend the scope of the claim for compensation  by invoking, in the course of the proceedings, new heads of damage and offers of evidence that are unrelated to the claim as expressed in the application.
Nor, in the seventh and last place, can the General Court be criticised for having rejected the eighth offer of evidence, which the appellant produced on 5 February 2018 and which consisted in the full annexes to the OLAF report referred to above, to which the appellant made a general reference  without explaining precisely how those annexes were capable of substantiating the compensation claim that she had made. In that context, the General Court did not err in law in recalling, in paragraph 186  of the judgment under appeal, that it was not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental  function (see, to that effect, judgment of 2 October 2019, Crédit mutuel Arkéa v ECB, C‑152/18 P  and  C‑153/18 P, EU:C:2019:810, paragraph 39  and the case-law cited).
It should be borne in mind that it follows 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 the General Court has exclusive jurisdiction to establish the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and to assess those facts. That assessment does not constitute, save where the evidence produced before the General Court has been distorted, a question of law which is subject, as such, to review by the Court of Justice. When the General Court has established or assessed the facts, the Court of Justice has jurisdiction, under Article 256 TFEU, to review the legal characterisation of those facts by the General Court and the legal conclusions which it has drawn from them (judgment of 4 February 2020, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P  and  C‑561/17 P, EU:C:2020:73,  paragraph 47).
Where an applicant alleges distortion of the evidence by the General Court, he or she must indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which led to such distortion (judgment of 9 June 2011, Comitato ‘Venezia vuole vivere’  and Others v Commission, C‑71/09 P, C‑73/09 P  and  C‑76/09 P, EU:C:2011:368, paragraph 152  and the case-law cited). That distortion 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 evidence (judgments of 29 October 2015, Commission v ANKO, C‑78/14 P, EU:C:2015:732,  paragraph 54  and the case-law cited, and of  12 January 2017, Timab Industries and CFPR v Commission, C‑411/15 P, EU:C:2017:11,  paragraph 89  and the case-law cited). Consequently, it does not suffice, in order to show such a distortion, to suggest a reading of that evidence different from that adopted by the General Court (judgment of 29 October 2015, Commission v ANKO, C‑78/14 P, EU:C:2015:732, paragraph 55  and the case-law cited).
In that regard, it must be recalled that, according to settled case-law, where all the other pleas put forward in an appeal have been rejected, any plea 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).