1 By her appeal, BP seeks to have set aside in part the judgment of the General Court of the European Union of 11 July 2019, BP v FRA (T‑838/16, not published, EU:T:2019:494, ‘the judgment under appeal’), by which the General Court (i) ordered the European Union Agency for Fundamental Rights (FRA) to pay her compensation in the amount of EUR 5 000 (together with default interest), and (ii) dismissed her action for compensation under Article 268 TFEU as to the remainder.
2 The background to the dispute was set out by the General Court in paragraphs 1 to 69 of the judgment under appeal in the following terms:
3 By application lodged at the General Court Registry on 30 November 2016, the appellant brought an action seeking compensation for the damage which she claims to have suffered as a result of various instances of allegedly unlawful conduct on the part of FRA. That conduct had consisted in (i) the irregular disclosure, following the request for access to documents made by a third party, of FRA’s replies to the appellant; (ii) the leak of documents annexed to her request for access to documents and of her residential addresses; (iii) a failure to adopt preventive measures; and (iv) an improper interview granted by the new FRA Director to the newspaper Politico. The appellant assessed the amount of the damage suffered at EUR 300 000 in respect of non-material damage and EUR 60 000 in respect of material damage.
4 In the proceedings before the General Court, the appellant submitted a request for the examination of witnesses on 30 November 2016, several offers of evidence on 15 June, 4 and 28 September and 30 October 2017, 7 and 30 January, 5 February, 24 May, 12 and 28 June 2018, a request for the adoption of a measure of organisation of procedure on 6 July 2017, an application to introduce a new plea in law on 11 July 2017, and a request for the adoption of a measure of inquiry pursuant to Article 88(1) of the Rules of Procedure of the General Court.
5 By the judgment under appeal, the General Court ordered FRA to pay the appellant the sum of EUR 5 000 and dismissed the action as to the remainder. More specifically, although, by the judgment under appeal, the General Court upheld the appellant’s claims in part, because of the non-material damage she had suffered as a result of the disclosure of certain personal data, it dismissed the claim for compensation as to the remainder on the ground, first, that there was no causal link between that disclosure and the material damage alleged and, secondly, that it had not been established that the other conduct alleged constituted an infringement capable of rendering the defendant liable.
6 By her appeal, the appellant claims that the Court should: - set aside in part the judgment under appeal and, in consequence, grant her adequate compensation, in essence, for the material and non-material harm caused by the gross illegality and irregularity of the infringement by FRA of several rules intended to confer rights on individuals; and - order FRA to pay the costs of the proceedings at first instance and of the appeal.
7 FRA contends that the Court should: - dismiss the appeal; and - order the appellant to pay all the costs and expenses of the proceedings.
8 The appellant relies on four grounds in support of her appeal. The first ground of appeal alleges, in essence, an error of law and a manifest error of assessment in the examination of the admissibility of the new plea in law and of the offers of evidence submitted pursuant to Article 85 of the Rules of Procedure of the General Court, and also infringement of the right to be heard, of the right to a fair trial and of the right to effective judicial protection laid down in Article 47 of the Charter of Fundamental Rights of the European Union. The second ground of appeal alleges, in essence, an error of law and a manifest error of assessment of the action for damages in so far as that action was based on an infringement of the provisions of Regulation No 1049/2001. The third ground of appeal alleges, essentially, infringement of Articles 134 and 135 of the Rules of Procedure of the General Court and of the obligation to state reasons. The fourth ground of appeal alleges infringement of Article 66 of those rules of procedure and unlawful composition of the formation of the Court.
9 The first ground of appeal is in two parts. In the first of these, the appellant claims that the General Court made a manifest error of assessment in finding that the application to introduce a new plea in law was inadmissible. In the second part, she submits that the General Court wrongly found the evidence that she had produced pursuant to Article 85 of the Rules of Procedure of the General Court to be inadmissible.
10 The appellant disputes both the findings in paragraphs 114 and 117 of the judgment under appeal and the conclusion, set out in paragraph 118 thereof, that the application to introduce a new plea in law had to be dismissed as inadmissible.
11 First, in the appellant’s submission, it is apparent from the file that, contrary to what the General Court stated in paragraph 114 of the judgment under appeal, she had submitted proof that the ‘file [confidential]’ had been disclosed to her on 11 May 2017. She states, moreover, that she did not understand the amplitude of the facts referred to in that file until 14 May 2017, following her lawyer’s analysis of it. Secondly, the General Court had disregarded the fact that, in accordance with Article 60 of its rules of procedure, the appellant was entitled to an extension on account of distance of a further 10 days and that, therefore, the date that should have been taken into consideration in the examination of the admissibility of the new plea in law was, in any event, 20 May 2017. Thirdly, the assessment in paragraph 117 of the judgment under appeal, according to which the submission of a new plea in law more than two months after the disclosure that prompted that submission was late, was arbitrary, since there was nothing to justify the reference to that period. Fourthly, the appellant emphasises that, in accordance with the case-law, a plea in law which constitutes an amplification of a plea previously made and which is closely linked to it must be declared admissible. The General Court failed, in her submission, to determine the nature of the plea that had been submitted to it and thus disregarded the principle of good administration and the appellant’s right to be heard and her right to a fair trial.
12 FRA contests the arguments raised by the appellant in support of this first part.
13 The appellant maintains in essence that, by rejecting as inadmissible the new plea in law that she had produced, the General Court made a manifest error of assessment, ‘[distorted the] clear sense of facts and evidences’, infringed her right to be heard and her right to a fair trial and committed a breach of the principle of good administration.
14 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).
15 It must also be noted that, under Article 84(1) of the Rules of Procedure of the General Court, no new plea in law may be introduced in the course of the proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. In accordance with Article 84(2) of those rules of procedure, any new pleas in law are to be introduced in the second exchange of pleadings and identified as such. Where the matters of law or of fact justifying the introduction of new pleas in law are known after the second exchange of pleadings or after it has been decided not to authorise a second exchange of pleadings, the main party concerned is to introduce the new pleas in law as soon as those matters come to that party’s knowledge.
16 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).
17 In the present case, the appellant made an application, by document lodged at the General Court Registry on 11 July 2017, on the basis of Article 84(1) of the Rules of Procedure of the General Court, in order to invoke a ‘new plea in law’. By that plea, the appellant criticised FRA for ‘its alleged complicity [confidential]’, in breach of Article 54 of the Charter of Fundamental Rights, the FEU Treaty and Regulations No 45/2001 and No 1049/2001.
18 It is apparent from paragraphs 108 to 118 of the judgment under appeal that the General Court considered that, because of its late submission and in the absence of any compelling justification by the appellant, the new plea in law submitted on 11 July 2017 had to be rejected as inadmissible.
19 None of the arguments put forward by the appellant is capable of invalidating those findings.
20 First of all, it should be noted that, as is apparent from paragraph 117 of the judgment under appeal, the General Court held that, even if the date of 11 May 2017 were accepted as being the date on which the appellant actually became aware of [confidential], it had to be concluded that that new plea had been submitted late.
21 Next, as regards the arguments directed against the finding in the same paragraph, according to which ‘the application to introduce a new plea in law was lodged late, namely on 11 July 2017, more than two months after [the] disclosure’ of the file in question, these are based on the incorrect premiss that it was the General Court’s intention to lay down a precise rule as to the time limit within which a new plea in law must be submitted in order to be declared admissible.
22 It appears that, by noting that the appellant had invoked a new plea in law more than two months after the occurrence of the event that had accounted for its introduction, the General Court merely intended to emphasise that that plea had been introduced very late. It must, in that regard, be borne in mind that, as is clear from Article 84(2) of the Rules of Procedure of the General Court, the party concerned is required to introduce the new pleas in law after the second exchange of pleadings as soon as those matters come to that party’s knowledge.
23 Since Article 84 of the Rules of Procedure of the General Court does not contain any indication of the time limit to be observed when introducing a new plea in law, the appellant’s arguments as to a further 10-day extension on account of distance being applicable in this case also cannot succeed.
24 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.
25 Given both the wording of the plea submitted on 11 July 2017, recalled in paragraph 17 of the present judgment, and the substance of the supporting arguments, that plea is unrelated to those advanced in support of the action brought on 30 November 2016. In the present case, the appellant had not relied in support of her action on a plea seeking to call in question, more or less directly, FRA’s alleged complicity in [confidential] and, on that basis, to obtain compensation for the harm suffered as a result of that complicity.
26 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).
27 In the present case, it should be noted that, by that argument, the appellant is merely making an abstract and very general statement concerning the rules of EU law which the General Court allegedly infringed, without providing any specific legal reasoning in that respect. That argument must consequently be rejected as being inadmissible.
28 In view of the foregoing considerations, the first part of the first ground of appeal must be rejected as being partly unfounded and partly inadmissible.
29 The appellant complains that, contrary to Article 85 of its rules of procedure, the General Court unlawfully rejected the offers of evidence that she had submitted. She claims that the General Court made errors of law and manifest errors of assessment in the examination of the admissibility of those offers of evidence.
30 First, as regards the evidence submitted on 15 June 2017, namely documents that allegedly came from the [confidential], the appellant challenges the findings in paragraphs 139, 140 and 143 of the judgment under appeal regarding the admissibility of that evidence.
31 Secondly, as regards the rejection of the evidence produced on 6 July 2017, relating to [confidential], the appellant argues that the General Court erred in law by concluding, in paragraphs 148 and 149 of the judgment under appeal, on the basis of the findings in paragraphs 145 and 147 of that judgment, that that evidence was submitted late and therefore had to be rejected as being late. She claims, in particular, that she had submitted the documents in question within two months and that, by belatedly deciding on the documents that she had already lodged, the General Court contributed to the allegedly late submission of the evidence concerned.
32 Thirdly, as regards the evidence produced on 4 September 2017, that is the letter from OLAF of 30 August 2017, the appellant contests the findings in paragraphs 133, 154 and 155 of the judgment under appeal. She submits that the General Court erred in failing to take that evidence into account in the examination of her claim for compensation and, moreover, in concluding that she had not supported her claims for compensation.
33 Fourthly, the appellant submits that the General Court was also wrong to reject, in paragraph 157 of the judgment under appeal, the second item of evidence mentioned in paragraph 156 of that judgment, which was submitted on 28 September 2017, that is FRA contract 2013-68 for ‘Strategies for defamatory acts’. That evidence is, in her submission, directly connected with the third and fourth items of evidence mentioned in that paragraph 156 and should therefore have been declared admissible on the basis of the findings in paragraph 159 of that judgment.
34 Fifthly, the appellant maintains that the General Court also wrongly rejected the evidence submitted on 7 January 2018, namely [confidential], which are directly connected to her claim for compensation for infringement of her rights in relation to the protection of her personal data and to the new plea in law which she had invoked on 11 July 2017. The appellant takes issue both with the findings in paragraphs 165 and 166 of the judgment under appeal and the conclusion reached by the General Court, as set out in paragraph 168 of that judgment. She submits that the General Court made an incomplete assessment of the evidence provided in the context of that offer of evidence, that it distorted the facts and that evidence and that it thus erred in law by rejecting all of that evidence.
35 Sixthly, the appellant claims that the General Court rejected as inadmissible the evidence submitted on 30 January 2018, that is the OLAF report in joined cases OF/2014/0192 and OF/2015/0167 and the invoice for 13 600 Romanian lei (RON). She disputes both the findings in paragraphs 175 and 176 of the judgment under appeal and the conclusion in paragraph 177 of that judgment. She states in particular that the late production of that OLAF report was fully justified in the circumstances of the case and in the light of the criteria established by the case-law. Furthermore, the General Court had failed to respond to her request, mentioned in paragraph 172 of the judgment under appeal, that it assess the consequences of FRA’s allegedly defamatory statements against her and the alleged damage to her reputation. Likewise, contrary to its finding in paragraph 179 of the judgment under appeal, the General Court should have declared admissible the invoice for RON 13 600 which she had submitted in support of her claim for compensation to establish the amount of the costs that she had incurred during the pre-litigation procedure before FRA.
36 Seventhly, the appellant submits that the General Court also erred in rejecting the entire OLAF file that she had presented in order to enable the General Court to verify the accuracy and veracity of her previous claims in relation to her personal data protection rights. She argues that all means of proof must be declared admissible, except for evidence obtained improperly and internal documents.
37 FRA contends that all of the appellant’s arguments are unfounded and must be rejected.
38 As a preliminary point, it should be borne in mind that, in accordance with Article 76(f) of the Rules of Procedure of the General Court, an application is to contain, where appropriate, any evidence produced or offered.
39 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.
40 Article 85(1) of the Rules of Procedure of the General Court thus makes clear that evidence produced or offered is to be submitted in the first exchange of pleadings. Article 85(2) adds that in reply or rejoinder a party may produce or offer further evidence in support of that party’s arguments, provided that the delay in the submission of such evidence is justified. In the latter case, in accordance with paragraph 4 of that article, the Court is to decide on the admissibility of the evidence produced or offered after the other parties have been given an opportunity to comment on such evidence.
41 Although, in accordance with the time-bar rule laid down in Article 85(1) of those rules of procedure, the parties must state the reasons for the delay in submitting or offering new evidence, the Courts of the European Union have jurisdiction to review the merits of the reasons for the delay in submitting or offering that evidence and, depending on the case, the content of that evidence and also, if its belated production is not justified to the requisite legal standard or substantiated, jurisdiction to reject it. The belated submission or offer of evidence by a party may be justified, in particular, by the fact that that party did not previously have the evidence in question at its disposal, or if the belated production of evidence by the opposing party justifies the file being supplemented, in such a way as to ensure observance of the inter partes principle (see, to that effect, judgment of 14 April 2005, Gaki-Kakouri v Court of Justice, C‑243/04 P, not published, EU:C:2005:238, paragraphs 32 and 33).
42 It follows from the case-law that although the appraisal by the General Court of the content of the evidence that is submitted to it does not, save where that evidence is distorted, constitute a point of law which is subject, as such, to review by the Court of Justice (order of 3 September 2013, Idromacchine and Others v Commission, C‑34/12 P, not published, EU:C:2013:552, paragraph 64 and the case-law cited), the General Court’s examination of the admissibility of offers of evidence submitted to it does constitute such a point that is subject to review by the Court of Justice (see, to that effect, judgment of 14 April 2005, Gaki-Kakouri v Court of Justice, C‑243/04 P, not published, EU:C:2005:238, paragraphs 33 and 34).
43 In the present case, as regards, in the first place, the evidence introduced on 15 June 2017, the General Court did not err in concluding that it was inadmissible.
44 First of all, it should be observed that the appellant did not adduce evidence indicating that she had not been aware of [confidential] until May 2017. It follows that she is not justified in challenging the General Court’s conclusion in relation to the letter of 16 April 2015 and the emails of 16 April 2014 and 2 December 2013, in paragraphs 139 and 140 of the judgment under appeal.
45 Next, the fact that, according to the appellant, the documents produced on 15 June 2017 are actually virtually identical to those produced one month earlier, that is by the pleading submitted on 16 May 2017, which the General Court had erroneously decided to reject by failing to ask her to regularise that pleading, it is sufficient to note that, even on the assumption that the appellant should have been given an opportunity to regularise the pleading, that fact is not such as to invalidate the finding that she was unable to justify the belated production of the documents lodged on 15 June 2017. In any event, while the pleading submitted on that date was in fact regularised at the request of the General Court Registry, it appeared that, notwithstanding that regularisation, the documents produced were either illegible or differed from those that were originally communicated.
46 Lastly, as regards the findings relating to the admissibility of the email of 29 November 2013, in paragraphs 141 to 143 of the judgment under appeal, it must also be noted that the appellant has not even begun to explain why that was produced late.
47 In the second place, with regard to the items produced on 6 July 2017, it must be borne in mind that, in accordance with Article 85(3) of the Rules of Procedure of the General Court, it is only exceptionally that the parties may produce or offer further evidence. It is clear from that provision that any delay in the submission of such evidence must be justified. In so far as the appellant does not challenge the finding that she had not justified the delay in question, the General Court did not err in rejecting the documents contained in the second offer of evidence.
48 In the third place, as regards the evidence produced on 4 September 2017, the appellant has also failed to establish that the findings in paragraphs 154 and 155 of the judgment under appeal are vitiated by any error of assessment or distortion of the evidence in the file. She has, in particular, failed to explain why those documents were capable of substantiating her claim for compensation, as formulated in the application initiating proceedings.
49 In the fourth place, so far as concerns the rejection of the second document mentioned in the fourth offer of evidence submitted on 28 September 2017, that is, ‘the invoice for legal services rendered further to purchase order (PO) 2013-68 “Strategies for defamatory acts”’, the appellant has also failed to demonstrate how the General Court was mistaken about or distorted the evidence submitted by finding that that document was not sufficiently connected to the claims for compensation made in the application.
50 In the fifth place, the same conclusion must be drawn with regard to the sixth offer of evidence, submitted on 7 January 2018. As the appellant has acknowledged, this offer of evidence related, for the most part, to the new plea in law submitted by document of 11 July 2017, a plea which the General Court correctly declared inadmissible. The General Court did not, therefore, err in ruling that the evidence put forward in support of that plea had to be rejected.
51 In the sixth place, as regards the rejection of the seventh offer of evidence, lodged on 30 January 2018 and mentioned in paragraphs 175 and 176 of the judgment under appeal, consisting in the OLAF report of 16 December 2016 and a selection of annexes to that report, it must be noted, first of all, that the appellant was unable to provide a convincing explanation before the General Court as to the reasons for her very late production of those documents. Contrary to the appellant’s contention, it was for her alone to provide the documents that she considered relevant for the purpose of substantiating the claim for compensation. In the present case, FRA cannot therefore be criticised for not having produced those documents. Nor can the General Court be criticised for having asked for those documents to be produced, in view of its duty to investigate the facts of the case.
52 Next, the argument that the General Court failed to respond to the appellant’s request that it assess the consequences of FRA’s defamatory statements against her, mentioned in paragraph 172 of the judgment under appeal, cannot be accepted. In fact the General Court expressly responded to that request in paragraph 181 of the judgment under appeal, stating that ‘the [appellant’s] expanded claim for compensation, reproduced in paragraph 172 of [that] judgment, which is closely connected to the seventh offer of evidence and in particular the OLAF Report, [had to] be dismissed’. The General Court added, in paragraph 182 of that judgment, that, ‘even if it were found that that claim was severable from and independent of those offers of evidence, it [was] not based on any argument or plea in law additional to those put forward in support of the claim already made in the application’. In the light of those considerations, it cannot be maintained that the General Court failed to rule on the request described in paragraph 172 of the judgment under appeal.
53 Lastly, as regards the invoice dated 23 May 2016, mentioned in paragraph 179 of the judgment under appeal, it is apparent from the file submitted to the Court of Justice that the appellant did not indicate why she had been unable to produce it when the action was initiated. The General Court cannot, therefore, be criticised for having ruled, in paragraph 180 of the judgment under appeal, that the application to produce that invoice had to be rejected as inadmissible.
54 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).
55 It follows from all of these considerations that the rejection of the offers of evidence referred to above is not vitiated by any error and that, therefore, the second part of the first ground of appeal must be rejected.
56 In those circumstances, the first ground of appeal must be rejected.
57 By her second ground of appeal, which relates to the General Court’s assessment of the arguments relating to the irregular disclosure of FRA’s replies to the appellant in the context of a request for access to documents made by a third party, the appellant takes issue with the findings in paragraphs 233 to 236 of the judgment under appeal and with the conclusion drawn by the General Court in paragraph 237 of that judgment.
58 First, the appellant submits that the three emails disclosed by FRA to [confidential] in connection with a request for access to documents made on the basis of Regulation No 1049/2001 were used in [confidential]. She claims that, in fact, FRA treated her as an ‘identifiable’ person.
59 Secondly, the appellant maintains that the General Court made an error of assessment in respect of her claim for compensation, by failing to examine the scope and nature of documents containing some of her confidential data, which FRA - wrongfully - disclosed. She claims, in particular, that the General Court did not adequately assess FRA’s response to its measure of organisation of procedure and its annexes, which included the letters of 12 November and 9 December 2015. The appellant adds that FRA unlawfully hid information from her and failed to comply with the procedure under Articles 11, 13, 15 and 17 of Regulation No 45/2001 which she launched in June 2016, while she had not been aware of the [confidential].
60 Thirdly, the appellant submits that the General Court erred in law by failing to have regard to the scope of Article 4(1)(b) of Regulation No 1049/2001 and, ultimately, Article 8(b) of Regulation No 45/2001, as that scope has in particular been defined by the Court of Justice in its judgment of 29 June 2010, Commission v Bavarian Lager (C‑28/08 P, EU:C:2010:378). She criticises the examination, in paragraphs 221 to 260 of the judgment under appeal, of the argument relating to irregular disclosure of FRA’s replies. She submits that the General Court failed in particular to take account of the fact that, first, the emails disclosed contained exclusively personal data of the appellant that did not relate to the activities of FRA, and, secondly, that she had requested that FRA demonstrate that it had indeed weighed the interests of those involved prior to the disclosure at issue.
61 FRA contests the arguments raised by the appellant in support of her second ground of appeal.
62 By her second ground of appeal, the appellant, in essence, criticises the examination, in paragraphs 233 and 234 of the judgment under appeal, of the scope and content of the answers given by FRA in response to a third party’s request for access to documents. The appellant maintains that FRA disclosed her ‘personal data’, which constitutes an infringement that is such as to render FRA liable. She submits that this is demonstrated in particular by the fact that her name was mentioned in the context [confidential].
63 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).
64 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).
65 In the present case, however, first, the appellant has not established that the General Court distorted the evidence submitted to it. It appears that, by her arguments, the appellant is effectively asking the Court of Justice to undertake a fresh assessment of the evidence, which is not subject to the latter’s review, largely reiterating, moreover, the arguments presented to the General Court.
66 Secondly, it has not been demonstrated that the General Court’s assessments are vitiated by any error in the legal characterisation of the facts. Thus, it is not disputed by the appellant that FRA’s replies were communicated to her following her submission of a request for access to documents, namely in the context of FRA’s exercise of its competence to give a decision on such a request, as the General Court stated in paragraph 236 of the judgment under appeal. Consequently, the General Court did not make an error by concluding, in paragraph 237 of the judgment under appeal, that ‘no complaint may be made against FRA for having, with regard to its own replies, disclosed the [appellant’s] personal data’.
67 As to the arguments to the effect that the General Court made a manifest error of assessment in the examination of her claim for damages as a result, in particular, of the incorrect assessment of FRA’s reply to a measure of organisation of procedure, the unlawful disclosure of certain information by FRA, and FRA’s failure to comply, under Articles 11, 13, 15 and 17 of Regulation No 45/2001, with the procedure launched by the appellant in June 2016, it is sufficient to note that the arguments set out in the appeal do not identify precisely the reasoning on the part of the General Court that the appellant regards as being vitiated by errors of law.
68 As regards the assertion that the General Court breached the principles identified in the judgment of 29 June 2010, Commission v Bavarian Lager (C‑28/08 P, EU:C:2010:378), this is based on the premiss that the three emails in question contained personal data of the appellant, which, according to her, might have justified the application of Article 4(1) of Regulation No 1049/2001 and Article 8(b) of Regulation No 45/2001.
69 That premiss is incorrect, however, in so far as those emails, which initially contained personal data, that is to say, the appellant’s name and her email address, were redacted prior to their disclosure to a third party in connection with a request for access to documents, of which the appellant had been duly informed by an email dated 13 June 2016.
70 In the light of the foregoing considerations, the second ground of appeal must be rejected as being partly inadmissible and partly unfounded.
71 By her fourth ground of appeal, which it is appropriate to examine before the third, the appellant complains that the General Court, first, infringed the letter and the spirit of Article 66 of its rules of procedure, on the one hand, by mentioning in the judgment under appeal, notably in paragraphs 113 and 138 thereof, certain sensitive data which could be used against her, and, on the other, by having subsequently redacted that judgment in such a way that it became difficult to understand, as is evidenced by the fact that the EDPS asked her to provide the full (confidential) unredacted version of the judgment. Those errors were such as to have caused her harm and damage to her reputation
72 Secondly, the appellant submits that, following the recusal of the President of the Chamber and a member of the formation of the Court, the General Court should have referred the case to a Chamber sitting in extended composition, pursuant to Article 28(1) of its rules of procedure, particularly as the case was, in her view, sufficiently complex and sensitive. The appellant adds that, on her reading of Article 21(4) of the Rules of Procedure, the fact that the Judge-Rapporteur had also been designated acting President of the Chamber could mean that, in the event of a vote, that judge was entitled to vote twice.
73 FRA contests the arguments raised by the appellant in support of the fourth ground of appeal and contends that it should be rejected as unfounded.
74 The fourth ground of appeal, which is, in essence, in two parts, relates (i) to allegedly sensitive data that appeared in the judgment under appeal, some of which were subsequently omitted, and (ii) to the composition of the formation of the General Court.
75 In the first place, as regards the question whether the General Court wrongfully mentioned, in the judgment under appeal, certain data that could be detrimental to the appellant, it should be noted that Article 66 of the Rules of Procedure of the General Court, which the appellant claims was infringed, provides that, ‘on a reasoned application by a party, made by a separate document, or of its own motion, the General Court may omit the name of a party to the dispute or of other persons mentioned in connection with the proceedings, or certain information, from those documents relating to a case to which the public has access if there are legitimate reasons for keeping the identity of a person or the information confidential’.
76 As the appellant has acknowledged in her pleadings, the General Court, on 10 February 2017, granted the request for anonymity that she had submitted together with her application on 30 November 2016. Besides the fact that the precise identity of the appellant, referred to as ‘BP’, does not appear in the public version of the judgment under appeal, she has not established that that judgment includes information that could be used against her. As regards, in particular, paragraphs 113 and 138 of the public (non-confidential) version of that judgment, as rectified by the order of the General Court of 18 December 2019, BP v FRA (T‑838/16 REC-INTP), those being the only paragraphs specifically referred to by the appellant, these are worded as follows:
77 It must be held that, in view of the omission of the confidential data that they contain, those passages do not even remotely enable the appellant to be identified or information to be imparted to the public that would enable her to be identified.
78 In the second place, as regards the argument calling in question the composition of the formation of the Court, it must be borne in mind that, in accordance with Article 28(1) of the Rules of Procedure of the General Court, ‘whenever the legal difficulty or the importance of the case or special circumstances so justify, a case may be referred to the Grand Chamber or to a Chamber sitting with a different number of Judges’.
79 The referral of a case to a Chamber sitting in extended composition is an option, not an obligation, recourse to which is subject to the criteria defined in those rules of procedure.
80 In the present case, the appellant has not established, to the requisite legal standard, the objective reasons why it should be held that the case that was brought before the General Court entailed a difficulty, an importance or a particular circumstance that necessarily justified referral to a Chamber sitting in extended composition.
81 Furthermore, the argument that the Judge-Rapporteur had two votes on account of her role as acting President of the relevant Chamber must be rejected, since the appellant has not put forward anything to support that assertion. While Article 21(4) of the Rules of Procedure of the General Court, which concerns the procedures for voting during deliberations, states that ‘the Judge-Rapporteur … shall vote first and the President … shall vote last’, that does not mean that a Judge-Rapporteur who is also President of the Chamber is required to vote twice, and thus to have two votes, under that provision.
82 Consequently, the fourth ground of appeal must be rejected as being unfounded.
83 By her third ground of appeal, the appellant maintains that the General Court infringed Articles 134 and 135 of its rules of procedure and the obligation to state reasons by deciding that each party was to bear its own costs. She refers more specifically to paragraphs 415 and 416 of the judgment under appeal.
84 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).
85 Since the appellant has been unsuccessful with respect to her first, second and fourth grounds of appeal, the present ground of appeal, relating to the allocation of costs, must accordingly be declared inadmissible.
86 In the light of all of the foregoing, the appeal must be dismissed in its entirety.
87 Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In the present case, since the appellant has been unsuccessful and FRA has applied for her to be ordered to pay the costs, the appellant must be ordered to bear her own costs and to pay those incurred by FRA. 1. Dismisses the appeal; 2. Orders BP to bear her own costs and to pay those incurred by the European Union Agency for Fundamental Rights (FRA).