1 By her appeal, H asks the Court to set aside the judgment of the General Court of the European Union of 11 April 2018, H v Council (T‑271/10 RENV, ‘the judgment under appeal’, EU:T:2018:180), by which the General Court dismissed her action involving, in the first place, an application under Article 263 TFEU for annulment of (i) the decision of 7 April 2010, signed by the Chief of Personnel of the European Union Police Mission in Bosnia and Herzegovina (EUPM), whereby the appellant was redeployed to the post of Criminal Justice Adviser - Prosecutor at the Regional Office in Banja Luka (Bosnia and Herzegovina) (‘the decision of 7 April 2010 at issue’) and (ii) the decision of 30 April 2010, signed by the Head of the EUPM referred to in Article 6 of Council Decision 2009/906/CFSP of 8 December 2009 on the EUPM in Bosnia and Herzegovina (OJ 2009 L 322, p. 22), confirming the decision of 7 April 2010 (together, ‘the decisions at issue’), and, in the second place, an application on the basis of Article 268 TFEU seeking compensation for the harm which the appellant claims to have suffered. Legal context Decision 2002/210/CFSP
2 By virtue of Article 1(1) of Council Joint Action 2002/210/CFSP of 11 March 2002 on the European Union Police Mission (OJ 2002 L 70, p. 1), an EUPM was established to follow on from the United Nations International Police Task Force in Bosnia and Herzegovina.
3 On the basis of Article 28 TEU and Article 43(2) TEU, the EUPM was extended a number of times, on the last occasion until 31 December 2011 by Decision 2009/906. Decision 2009/906
4 Article 5 of Decision 2009/906, headed ‘Civilian Operation Commander’, provided in its paragraph 2: ‘The Civilian Operation Commander, under the political control and strategic direction of the Political and Security Committee (PSC) and the overall authority of the High Representative of the Union for Foreign Affairs and Security Policy (HR), shall exercise command and control of EUPM at the strategic level.’
5 Article 6 of that decision, headed ‘Head of Mission’, stipulated in its paragraphs 1 to 3 as follows: ‘1. The Head of Mission shall assume responsibility for, and exercise command and control of, EUPM at theatre level. 2. The Head of Mission shall exercise command and control over personnel, teams and units from contributing States as assigned by the Civilian Operation Commander together with administrative and logistic responsibility including over assets, resources and information placed at the disposal of EUPM. 3. The Head of Mission shall issue instructions to all EUPM staff for the effective conduct of EUPM in theatre, assuming its coordination and day-to-day management, and following the instructions at the strategic level of the Civilian Operation Commander.’
6 Article 9 of that decision, headed ‘Chain of command’, stated in its paragraph 5: ‘The Head of Mission shall exercise command and control of EUPM at theatre level and shall be directly responsible to the Civilian Operation Commander.’ Background to the dispute
7 H is an Italian magistrate who was seconded to the EUPM by order of the Italian Minister for Justice of 16 October 2008, in order to perform the duties of Criminal Justice Unit Adviser in Sarajevo from 14 November 2008.
8 By order of that minister of 7 April 2009, the appellant had her secondment extended until 31 December 2009, in order to perform, also in Sarajevo, the duties of Chief Legal Officer (‘the post in Sarajevo’). By order of that minister of 9 December 2009, the appellant’s secondment was further extended until 31 December 2010, in order that she could continue to perform those same duties.
9 By the decision of 7 April 2010 at issue, signed by the Chief of Personnel of the EUPM, the appellant was redeployed to the post of Criminal Justice Adviser - Prosecutor in the regional office in Banja Luka (Bosnia and Herzegovina) (‘the post in Banja Luka’) from 19 April 2010.
10 By email of 15 April 2010, an official of the Permanent Representation of the Italian Republic to the European Union informed the appellant that the decision of 7 April 2010 at issue had been suspended.
11 By the decision of 30 April 2010, signed by the Head of the EUPM referred to in Article 6 of Decision 2009/906, that Head of Mission confirmed the decision of 7 April 2010 at issue. He stated in that decision that he himself had taken that decision and that the operational reason for the appellant’s redeployment was based on the need for prosecutorial advice in the Banja Luka office. Procedure before the General Court and the Court of Justice prior to referral
12 By application lodged at the Registry of the General Court on 16 June 2010, the appellant brought an action for annulment of the decisions at issue and for an award of damages.
13 By order of 10 July 2014, H v Council and Others (T‑271/10, not published, ‘the initial order’, EU:T:2014:702), the General Court (Ninth Chamber) held that it lacked jurisdiction to hear the action and thus dismissed it as inadmissible.
14 The appellant brought an appeal against the initial order, arguing, in particular, that the General Court had erred in law in declaring that it lacked jurisdiction to hear the action.
15 By judgment of 19 July 2016, H v Council and Commission (C‑455/14 P, EU:C:2016:569), the Court of Justice set aside the initial order, dismissed the action as inadmissible in so far as it was directed against the Commission and the EUPM, held that the action was admissible in so far as it was directed against the Council of the European Union, referred the case back to the General Court for a judgment on the substance of the action in so far as it was directed against the Council and reserved the costs. The procedure before the General Court following referral and the judgment under appeal
16 By letters of 4 August 2016, the Registry of the General Court invited the parties to present their written observations, in accordance with Article 217(1) of the Rules of Procedure of the General Court, regarding the consequences of the judgment of 19 July 2016, H v Council and Commission (C‑455/14 P, EU:C:2016:569) in the context of the proceedings before it. The appellant and the Council lodged their respective observations with the Registry of the General Court within the prescribed period.
17 By decision of the President of the General Court of 25 August 2016, the case was assigned to another Judge-Rapporteur attached to the Ninth Chamber of the General Court.
18 By decision of the President of the General Court of 5 October 2016, adopted as a result of the partial renewal of the General Court, the case was reassigned to a new Judge-Rapporteur, attached to the Sixth Chamber, to which that case was accordingly assigned.
19 On a proposal from the Judge-Rapporteur, the General Court (Sixth Chamber) decided to open the oral part of the procedure. The parties presented oral argument and replied to the Court’s oral questions at the hearing on 13 September 2017. During that hearing, the General Court also invited the Council to reply, in writing, to certain questions and to produce additional documents within two weeks of the date of that hearing. The Council complied with those requests within the prescribed period.
20 By the judgment under appeal, the General Court pointed out that the appellant had amended the form of order sought a number of times since the original application had been lodged, with the result that her action should be regarded as being directed solely against the Council and having as its object, in the first place, an application on the basis of Article 263 TFEU for annulment of the decisions at issue and, in the second place, an application on the basis of Article 268 TFEU seeking compensation for the harm which the appellant claimed to have suffered as a result of her redeployment. The General Court dismissed that action and ordered the appellant to pay the costs.
21 By order of 17 September 2018, H v Council , (T‑271/10 OST, not published, EU:T:2018:623), the General Court amended the judgment under appeal as regards the costs. In particular, it ordered the Council to pay the costs incurred by the appellant up until the delivery of the judgment of 19 July 2016, H v Council and Commission (C‑455/14 P, EU:C:2016:569), since those costs related to the admissibility of the action at first instance. However, it ordered the appellant to pay the other costs incurred by the Council both before and after delivery of that judgment. Forms of order sought by the parties
22 By her appeal, the appellant claims that the Court should: - set aside the judgment under appeal in so far as the General Court dismissed her action for annulment of the decisions at issue and the claim for damages; - give a decision on the case and, if appropriate, refer the case back to the General Court for judgment; and - order the Council to pay the appellant’s costs in the proceedings which gave rise to the judgment of 19 July 2016, H v Council and Commission (C‑455/14 P, EU:C:2016:569), and the costs of the present appeal.
23 The Council contends, in essence, that the Court should dismiss the appeal and order the appellant to pay the costs.
24 In her reply, the appellant informed the Court that, following the order made on 17 September 2018, H v Council (T‑271/10 OST, not published, EU:T:2018:623), she was giving up her pleas and arguments seeking an order that the Council pay the costs incurred in the case that gave rise to the judgment of 19 July 2016, H v Council and Commission (C‑455/14 P, EU:C:2016:569). The appeal The admissibility of the reply Arguments of the parties
25 The Council contends that the appellant has failed to meet all or at least some of the conditions required by Article 175 of the Rules of Procedure of the Court for the presentation of the reply, with the result that all or part of that reply should be struck out from the file. In particular, the Council submits that much of that reply contains arguments that are unrelated to the defence and do not constitute a response to the alleged new evidence on which it is claimed that the Council relied.
26 The Council argues that, in some cases, the appellant has even raised matters that she did not mention in her appeal. Regarding the argument that the Council did not fully address the questions from the General Court, the Council stresses the fact that certain information had not been requested by that Court. As for the rest, the Council submits that it provided adequate and detailed information in response to the questions asked. Findings of the Court
27 Under Article 127(1) of the Rules of Procedure of the Court of Justice, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.
28 Nevertheless, in accordance with the Court’s settled case-law, an argument which amplifies a plea made in the application initiating proceedings and which is closely linked with it cannot be declared inadmissible (judgment of 20 December 2017, Spain v Council , C‑521/15, EU:C:2017:982, paragraph 141).
29 In the present case, it must be pointed out that, in order to contest the admissibility of the reply, the Council has, in essence, merely asserted in general terms that the appellant advanced arguments in the reply that are unrelated to the content of the defence and that, in some cases, she raised matters that she had not mentioned in her appeal.
30 In that regard, it must be noted that, in the context of the present case, the appellant was authorised by decision of the President of the Court of 28 September 2018 to lodge a reply, the subject of which was to be limited to, first, the possible impact of the order of 17 September 2018, H v Council (T‑271/10 OST, not published, EU:T:2018:623), on the present appeal and, second, responding to the line of argument developed by the Council in paragraph 26 of its defence.
31 In her reply, the appellant rigorously limits her arguments to those two points. First, as is apparent from paragraph 24 of the present judgment, the appellant specifies in that reply that, following the order made on 17 September 2018, H v Council (T‑271/10 OST, not published, EU:T:2018:623), she has given up the pleas and arguments seeking an order for the Council to pay the costs which she incurred in the case giving rise to the judgment of 19 July 2016, H v Council and Commission (C‑455/14 P, EU:C:2016:569).
32 Secondly, the appellant also seeks, in that reply, to set out the essential reasons why the Council’s observation in paragraph 26 of its defence that she had not opposed, at the hearing before the General Court, the production of the information that that court had requested of the Council and that she had also not asked for the possibility to comment on the answers and the documents provided by the Council in response to those questions (‘the answers and the documents submitted after the hearing’) should not be accepted. In particular, the appellant seeks to demonstrate that it was not for her to take such steps, since it was the responsibility of the General Court to ensure that the rights of the defence were respected, in particular her right to be heard, by providing her with the opportunity to comment on those answers and information.
33 Furthermore, while it is true that there was new material in the reply compared with that set out in the appeal, that new material consisted of additional illustrations of the line of argument already set out in the appeal, to which paragraph 26 of the Council’s defence sought to respond, based on infringement of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
34 In particular, in that reply, the appellant elaborates on that line of argument, by detailing how the answers and the documents submitted after the hearing played a decisive role in the General Court’s reasoning which culminated in the dismissal of the action, even though some of the information provided by the Council was incomplete, and how the General Court’s interpretation of those answers and those documents could have been different had the appellant been given the opportunity to comment on that matter. The illustrations provided in that regard in that reply therefore merely amplify a line of argument already developed in the context of the fourth and fifth grounds of appeal and are therefore admissible, in accordance with the case-law set out in paragraph 28 of the present judgment.
35 Under those circumstances, the appellant cannot be criticised for failure to comply with the limits of the authorisation granted to her to lodge a reply, with the result that the conditions set out in Article 175 of the Rules of Procedure of the Court must be regarded as having been fulfilled. Substance
36 The appellant relies on five grounds in support of her appeal, the first of which is based on infringement of Article 216 of the Rules of Procedure of the General Court and of Article 47 of the Charter, the second and third on infringement of the second paragraph of Article 61 of the Statute of the Court of Justice of the European Union, and the fourth and fifth on infringement of Article 47 of the Charter and various distortions of evidence.
37 By a correction sent to the Court Registry on 29 June 2018, the appellant indicated new titles for the grounds raised in her appeal, but did not, however, indicate how the arguments previously presented were to be reallocated in the light of the new titles given to those grounds.
38 Under those circumstances, the grounds of appeal and arguments submitted by the appellant should be examined as they are set out in the appeal. The first ground of appeal - Arguments of the parties
39 By her first ground of appeal, the appellant submits that the composition of the Chamber that delivered the judgment under appeal was irregular in the light of Article 216 of the Rules of Procedure of the General Court and of Article 47 of the Charter.
40 The appellant submits that it follows from the actual wording of Article 216(1) of the Rules of Procedure of the General Court that, once the Court of Justice has set aside a judgment or an order, the President of the General Court has a discretionary power to assign the case in question either to the Chamber that decided on it previously or to another Chamber. However, she argues, the President cannot intervene directly in the composition of the Chamber by changing only one of its members, as happened in the case giving rise to the judgment under appeal. In this case, the appellant claims, the President of the General Court decided to change only the Judge-Rapporteur and to retain the former Judge-Rapporteur as President of the Chamber. Had the President of the General Court intended for that case to be looked at afresh, the only possibility available to him was to assign the case to another Chamber, that is to say, to a Chamber with a different composition.
41 The appellant submits that the principle underpinning Article 216(1) of the Rules of Procedure of the General Court is to enable the President of that Court, where advisable, to allow a case that has previously been ruled on to be looked at afresh. In that situation, according to the appellant, the assignment of the case to a different Chamber is not a mere measure of organisation of procedure, but rather a means to ensure the right to a fair hearing by an independent and impartial tribunal previously established by law, in accordance with Article 47 of the Charter and the first sentence of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’).
42 Similarly, the appellant claims that the subsequent assignment of the case to the Sixth Chamber of the General Court, on the ground that one of its members, namely its President, had been the Judge-Rapporteur in the case that gave rise to the initial order, is also contrary to the terms of Article 216(1) of the Rules of Procedure of the General Court.
43 The appellant submits that such an irregularity in the composition of the Chamber is a plea of public law and a procedural error that should result in the judgment under appeal being set aside in its entirety.
44 The Council, observing that the first ground of appeal concerns the interpretation of procedures, practice and the internal organisation of the Court, refrains from making any comment on that ground of appeal. - Findings of the Court
45 As a preliminary point, it should be noted that the right to a fair trial, which derives from, inter alia, Article 6(1) of the ECHR, constitutes a fundamental right which the European Union respects as a general principle under Article 6(3) TEU (see, to that effect, judgment of 3 May 2012, Comap v Commission , C‑290/11 P, not published, EU:C:2012:271, paragraph 45 and the case-law cited). That right corresponds to the right to an effective remedy and of access to an impartial tribunal as provided for in the first and second paragraphs of Article 47 of the Charter (see, to that effect, judgment of 26 July 2017, Sacko , C‑348/16, EU:C:2017:591, paragraph 39).
46 That right means that every person must be entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal, previously established by law. Such a right is applicable in the context of proceedings brought against a Council decision (see, by analogy, judgment of 17 December 1998, Baustahlgewebe v Commission , C‑185/95 P, EU:C:1998:608, paragraph 21).
47 The guarantees of access to an independent and impartial tribunal, and in particular those which determine what constitutes a tribunal and how it is composed, represent the cornerstone of the right to a fair trial. That right means that every court is obliged to check whether, in its composition, it constitutes such an independent and impartial tribunal, where this is disputed on a ground that does not immediately appear to be manifestly devoid of merit. That check is necessary for the confidence which courts and tribunals must inspire in those subject to their jurisdiction (judgment of 1 July 2008, Chronopost and La Poste v UFEX and Others , C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 46 and the case-law cited).
48 As regards Article 216(1) of the Rules of Procedure of the General Court, relied on by the appellant in the context of the present ground of appeal, that provision states that, where the Court of Justice sets aside a judgment or order of a Chamber of the General Court, the President of the General Court may assign the case to another Chamber with the same number of judges.
49 In the present case, the initial order was made by the Ninth Chamber of the General Court, composed of G. Berardis (Rapporteur), President, O. Czúcz and A. Popescu. It is apparent from paragraphs 17 and 19 of the judgment under appeal and from the information available to the Court that, following the referral of the case back to the General Court, the case was again initially assigned to the Ninth Chamber, composed of G. Berardis, President, O. Czúcz and A. Popescu (Rapporteur). However, owing to the fact that A. Popescu, Judge-Rapporteur, had left the General Court and in view of the partial renewal of the General Court, the President of that Court, by decision of 5 October 2016, designated, as Judge-Rapporteur, O. Spineanu-Matei, who had been assigned to the Sixth Chamber. As a result, the case was reassigned to the Sixth Chamber, composed of G. Berardis, President, S. Papasavvas and O. Spineanu-Matei (Rapporteur). That latter Chamber delivered the judgment under appeal.
50 As regards, in the first place, the fact that, while the Chamber initially designated for the purposes of delivering the judgment under appeal was the same as that which gave a ruling in the context of the initial order, it was initially decided to assign the role of Judge-Rapporteur to another member of that Chamber, the Court has previously held that the fact that the same Judge in the two successive formations hearing the same case is entrusted with the duties of Judge-Rapporteur is, by itself, irrelevant to the assessment of compliance with the requirement of impartiality, since those duties are performed in a collegiate formation of the Court (judgment of 1 July 2008, Chronopost and La Poste v UFEX and Others , C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 53).
51 It follows, a fortiori, that, in the event that a decision is taken to assign a case to another Judge-Rapporteur following the referral of that case back to the General Court, that decision also cannot be regarded as being contrary to the requirements that follow from Article 47 of the Charter. Furthermore, contrary to what the appellant’s line of argument appears to suggest in that regard, Article 216(1) of the Rules of Procedure of the General Court is silent as to the choice of the Judge-Rapporteur, that choice ultimately being a matter for the decision of the President of the General Court, as follows from Article 26(2) and Article 27(1) of the Rules of Procedure of the General Court.
52 It must be added that, in any event, given that the Judge-Rapporteur and the Chamber initially designated when the present case was referred back to the General Court were subsequently changed, any possible irregularities marring those designations could not, as such, have affected the lawfulness of the composition of the Chamber that actually delivered the judgment under appeal.
53 As regards, in the second place, the argument that the later assignment of the case to the Sixth Chamber is contrary to the wording of Article 216(1) of the Rules of Procedure of the General Court and the requirements under Article 47 of the Charter, it is true that the formation of the Court that actually delivered the judgment under appeal was composed of the former Judge-Rapporteur and two judges who had not sat in the Chamber which made the initial order.
54 However, first, contrary to what the appellant claims, the possibility under Article 216(1) of the Rules of Procedure of the General Court for the President of the General Court, after the Court of Justice has set aside a judgment or order of a Chamber, to assign the case to another Chamber is not subject to the condition that the latter Chamber may not be composed of any of the judges who had initially sat in the Chamber which delivered that judgment or made that order.
55 Secondly, the Court has already held that there are two aspects to the requirement of impartiality, guaranteed in Article 47 of the Charter. First, the members of the court or tribunal must themselves be subjectively impartial, that is, none of its members may show bias or personal prejudice, there being a presumption of personal impartiality in the absence of evidence to the contrary. Secondly, the court or tribunal must be objectively impartial, that is to say, it must offer guarantees sufficient to exclude any legitimate doubt in this respect (judgment of 1 July 2008, Chronopost and La Poste v UFEX and Others , C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 54 and the case-law cited).
56 In the present case, however, first, the appellant does not, in support of the present ground of appeal, allege personal bias on the part of any of the members of the Sixth Chamber of the General Court who delivered the judgment under appeal.
57 Secondly, the fact that the same Judge sits in two Chambers hearing and determining the same case in succession, cannot, by itself, give rise to doubt as to the impartiality of the General Court in the absence of any other objective evidence (judgment of 1 July 2008, Chronopost and La Poste v UFEX and Others , C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 56).
58 There is no general obligation under which a case must be referred back to a Chamber with an entirely different composition from that which first heard and determined the case (see, to that effect, judgment of 1 July 2008, Chronopost and La Poste v UFEX and Others , C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 57).
59 Furthermore, as the Court has already pointed out, the European Court of Human Rights has taken the view that it cannot be stated as a general rule resulting from the obligation to be impartial that a court quashing an administrative or judicial decision is obliged to send the case back to a different judicial authority or to a differently composed branch of that authority (judgment of 1 July 2008, Chronopost and La Poste v UFEX and Others , C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 58 and the case-law cited).
60 Under those circumstances, it has not been established, in the present case, that the composition of the Chamber which delivered the judgment under appeal was unlawful owing to the mere presence in that Chamber of a member of the General Court who had already sat in the Chamber which had previously heard and determined the case (see, by analogy, judgment of 1 July 2008, Chronopost and La Poste v UFEX and Others , C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 60).
61 Moreover, the appellant has not demonstrated either, by the line of argument put forward in the present appeal, that her right to have the case disposed of by a tribunal previously established by law has not been respected, the action having been ruled upon by a Chamber of three judges of the General Court, in accordance with the first and second paragraphs of Article 50 of the Statute of the Court of Justice of the European Union and Article 216(1) of the Rules of Procedure of the General Court.
62 Furthermore, it must be added that, contrary to what the appellant claims, it is apparent from the file before the General Court that the two decisions by which changes were made to the composition of the Chamber of the General Court hearing the case after referral were notified to her through her lawyer, and that the appellant was also informed of the reasons for those reassignments by letters dated 30 August 2016 and 17 October 2016. In any event, the appellant has not derived any argument from the circumstance, assuming it to be established, that those decisions were not communicated to her.
63 The first ground of appeal must therefore be rejected as being unfounded. The second ground of appeal - Arguments of the parties
64 By her second ground of appeal, based on infringement of the second paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the appellant criticises the General Court for making findings in paragraphs 44 to 72 of the judgment under appeal as regards the powers of the Head of Mission that are at odds with the previous findings of the Court on that matter in the judgment of 19 July 2016, H v Council and Commission (C‑455/14 P, EU:C:2016:569).
65 In particular, the appellant submits that it follows from paragraphs 52 and 54 of that judgment that the Court regarded the Head of Mission as not having the power to redeploy the appellant, on the ground that a redeployment decision is a strategic decision that does not fall within the meaning of ‘instructions to all EUPM staff’ referred to in Article 6(3) of Decision 2009/906. She further submits that the Court of Justice referred to the ‘competent authorities’ involved in the allocation of personnel and not to a Head of Unit. According to the appellant, the General Court re-examined the question of the powers of the Head of Mission, and in that context, attributed to him the power not only to issue instructions to staff, but also to redeploy staff.
66 The Council contends that the second ground of appeal is unfounded. - Findings of the Court
67 In accordance with the second paragraph of Article 61 of the Statute of the Court of Justice of the European Union, where a case is referred back to the General Court, that Court is bound by the decision of the Court of Justice on points of law.
68 In the present case, regarding the line of argument put forward by the appellant that the General Court, in paragraphs 44 to 72 of the judgment under appeal, made findings in relation to the powers of the Head of the EUPM that contradict the Court of Justice’s previous findings on that matter in the judgment of 19 July 2016, H v Council and Commission (C‑455/14 P, EU:C:2016:569), it must be pointed out that, contrary to what the appellant claims, the Court of Justice did not, in the latter judgment, find that the Head of Mission did not have the power to redeploy the appellant within that mission.
69 Admittedly, in paragraphs 51 and 52 of the judgment of 19 July 2016, H v Council and Commission (C‑455/14 P, EU:C:2016:569), the Court stated that, in accordance with Article 5(2) of Decision 2009/906, the Civilian Operation Commander exercises command and control at the ‘strategic’ level of the EUPM in Bosnia and Herzegovina, whereas the Head of Mission, in accordance with Article 6(1) to (3) and Article 9(5) of that decision, issues, inter alia, all the necessary ‘instructions’ to all staff.
70 However, in doing so, the Court merely stated the basic substance of the relevant provisions of Decision 2009/906, and its statements in that regard had neither the purpose nor the effect of specifying the conditions under which a redeployment decision within the EUPM with respect to a member of staff, such as the appellant, may be taken. In particular, the Court did not find that the power to redeploy an agent was exclusively strategic in nature, within the meaning of Article 5(2) of that decision, nor did it rule out that the Head of Mission had such a power of redeployment. By proceeding to set out the relevant provisions of that decision in paragraphs 51 to 53 of the judgment of 19 July 2016, H v Council and Commission (C‑455/14 P, EU:C:2016:569), the Court merely sought to lend weight to its finding, set out in paragraph 54 of that judgment, that a redeployment decision, such as the decisions at issue, had an operational aspect under the Common Foreign and Security Policy (CFSP) and constituted an ‘act of staff management’, without, however, designating the authority that was competent to take such a decision.
71 Finally, while in paragraph 54 of the judgment of 19 July 2016, H v Council and Commission (C‑455/14 P, EU:C:2016:569), the Court made reference, in general terms and in the plural, to ‘decisions adopted by the competent authorities of that mission relating to the allocation of the human resources’ assigned to that mission by the Member States and the EU institutions, that does not imply that the Court intended to exclude the possibility that a specific redeployment decision could come within the remit of the Civilian Operation Commander or, conversely, that of the Head of Mission.
72 Accordingly, the General Court cannot be criticised for contradicting the judgment of 19 July 2016, H v Council and Commission (C‑455/14 P, EU:C:2016:569), in finding that the Head of Mission had the power to redeploy the appellant.
73 It follows that the second ground of appeal is unfounded and must therefore be rejected. The third ground of appeal - Arguments of the parties
74 By her third ground of appeal, the appellant criticises the General Court for having infringed the second paragraph of Article 61 of the Statute of the Court of Justice of the European Union by making findings, in paragraphs 73 to 85 of the judgment under appeal, regarding the role of the Member State of origin in the context of the redeployment of seconded staff which are contrary to the findings of the Court of Justice in paragraph 56 of the judgment of 19 July 2016, H v Council and Commission (C‑455/14 P, EU:C:2016:569).
75 In particular, the appellant submits that it follows from paragraph 56 of that judgment that Decision 2012/C 12/04 of the High Representative of the Union for Foreign Affairs and Security Policy of 23 March 2011 establishing the rules applicable to national experts seconded to the European External Action Service (OJ 2012 C 12, p. 8) constitutes the general framework applicable to seconded staff. It follows from that decision that the place of secondment may be changed during the secondment by means of a further exchange of letters if the possibility of changing that place was not envisaged in the original exchange of letters and the administration which seconds the national expert is kept informed of any changes to the place of secondment.
76 Consequently, the appellant submits that the consent that, according to paragraph 79 of the judgment under appeal, she allegedly gave in regard to her redeployment is entirely irrelevant, since the power to give consent to such redeployment was reserved strictly to the national administration of origin, namely the Italian Ministry of Justice, and should, in principle, have been expressed through a new exchange of letters, something which, in the present case, never took place.
77 According to the appellant, it follows that the conclusion reached by the General Court, in paragraph 81 of the judgment under appeal, that staff seconded by the Member States and those seconded by the EU institutions are subject to the same rules in the event of redeployment, is completely erroneous and contrary to what the Court held in paragraph 56 of the judgment of 19 July 2016, H v Council and Commission (C‑455/14 P, EU:C:2016:569). Moreover, the appellant submits that, in paragraph 75 of the judgment under appeal, the General Court wrongly criticised her for failing to indicate the provision by virtue of which it was necessary to consult the Member State. According to the appellant, that question was extensively discussed in the context of the proceedings giving rise to the judgment of 19 July 2016, H v Council and Commission (C‑455/14 P, EU:C:2016:569), and that was, therefore, the reason for the indications included in paragraph 56 of that judgment.
78 The Council contends that the third ground of appeal is unfounded. - Findings of the Court
79 In so far as, by her third ground of appeal, the appellant criticises the General Court for having infringed the second paragraph of Article 61 of the Statute of the Court of Justice of the European Union by making findings, in paragraphs 73 to 85 of the judgment under appeal, regarding the role of the Member State of origin in the context of the redeployment of seconded staff which are contrary to what the Court of Justice held in paragraph 56 of the judgment of 19 July 2016, H v Council and Commission (C‑455/14 P, EU:C:2016:569), the Court finds that, as in the context of the second ground of appeal, the appellant interprets that latter judgment by attributing to it a scope which is alien to it.
80 In particular, in paragraph 56 of the judgment of 19 July 2016, H v Council and Commission (C‑455/14 P, EU:C:2016:569), the Court held that the conclusion which it had reached in paragraph 55 of that judgment, consisting in recognition that the EU judicature has jurisdiction to hear actions regarding staff management in respect of agents seconded by Member States to a mission such as the EUPM, ‘is confirmed by the jurisdiction conferred on the Court to rule, first, by virtue of Article 11(3)(b) and (6) of Council Decision (CFSP) 2015/1835 of 12 October 2015 defining the statute, seat and operational rules of the European Defence Agency (OJ 2015 L 266, p. 55), on actions brought by national experts seconded to [the European Defence Agency (EDA)] and, secondly, by virtue of Article 42(1) of [Decision 2012/C 12/04] laying down the rules applicable to national experts seconded to the European External Action Service [EEAS], on actions brought by national experts seconded to that service’.
81 Thus, the Court referred to the jurisdiction conferred on the EU judicature by Decision (CFSP) 2015/1835 and by Decision 2012/C 12/04 concerning, respectively, national experts seconded to the EDA and national experts seconded to the EEAS solely for the purpose of confirming the conclusion which it had reached in the judgment of 19 July 2016, H v Council and Commission (C‑455/14 P EU:C:2016:569), as regards its jurisdiction to hear actions regarding acts of staff management with respect to staff seconded to the EUPM.
82 The view therefore cannot be taken that, by that paragraph 56, the Court intended to suggest that the applicable rules under Decision 2012/C 12/04 also constituted the general framework applicable to persons seconded by the Member States to missions such as the EUPM.
83 Furthermore, since it does not follow from paragraph 56 of that judgment that the Member State concerned had to be consulted before the appellant was redeployed, the appellant’s line of argument that the General Court, in paragraph 75 of the judgment under appeal, misinterpreted paragraph 56 of that judgment by finding that the appellant had failed to indicate any provision requiring such consultation, is unsubstantiated.
84 Consequently, the third ground of appeal must be rejected as unfounded. The fourth and fifth grounds of appeal - The arguments of the parties concerning the fourth ground of appeal
85 By her fourth ground of appeal, which relates to the assessment, in paragraphs 103 to 132 and in paragraphs 142 to 151 of the judgment under appeal, of the third and fifth pleas in law put forward at first instance to demonstrate misuse of powers and psychological harassment, the appellant criticises the General Court, first, for having infringed Article 47 of the Charter and second, for various distortions of evidence.
86 In particular, according to the appellant, while the General Court did not invite her to comment on the answers and the documents provided after the hearing, in paragraphs 124 to 127, 131, 149, 159, 160 and 163 of the judgment under appeal it nonetheless relied on those answers and those documents in order to refute the appellant’s arguments concerning the chronology of the events at issue and, accordingly, to reject the grounds of appeal as regards misuse of powers and manifest error of assessment. The appellant claims that, had the possibility of submitting such observations been afforded to her, the content of the judgment under appeal would have been different.
87 In that regard, the appellant submits, in the first place, that Annex J2 attests that she was redeployed before the end of the selection procedure. In the second place, it is apparent from Annexes J1, J5, J6 and J7 that advice on prosecution matters was explicitly specified where required for a given post. However, it was only after the appellant, together with a legal adviser for the EUPM, had presented a series of irregularities in relation to the management of the EUPM, by letter of 17 March 2010, that the need for specific advice on prosecution matters appeared in relation to the post in Banja Luka. In the third place, the post in Banja Luka remained vacant from the date on which the appellant was placed on sick leave until the end of the mission. As is apparent from Annex J9, that post was not even published in the call for applications of 21 November 2011. By contrast, in the fourth place, Annex J11 shows that the post in Sarajevo was published immediately after the appellant had been redeployed and was even taken up on a temporary basis, as can be seen from Annex J14. In the fifth and last place, according to the appellant, Annexes J5 and J12 confirm the pleas which she had put forward at first instance, in the context of which she submitted that her redeployment had resulted in her being downgraded from a ‘senior’ to a ‘junior’ post.
88 The appellant submits that, in paragraph 130 of the judgment under appeal, the General Court also distorted the evidence produced by her, in particular by denying that the email of 8 April 2010, included in Annex 20 to the original application (‘the email of 8 April 2010’), was in any way relevant. Furthermore, the General Court misinterpreted the evidence, in paragraph 124 of the judgment under appeal, by asserting that the fact that there was a selection procedure under way for the post in Banja Luka merely confirmed the vacancy for that post and the need to fill it. In addition, in paragraphs 147 to 149 of the judgment under appeal, the General Court distorted the evidence by deciding not to give weight to the Decision of the European Ombudsman of 4 June 2015 concerning the termination of Ms C’s employment contract as a legal adviser to the EUPM in Bosnia and Herzegovina (‘the Ombudsman’s decision’).
89 The Council submits that the General Court was correct in finding that the appellant had not produced sufficient evidence concerning the alleged misuse of powers by the Head of Mission. In particular, according to the Council, it follows from paragraphs 132 and 141 of the judgment under appeal that the evidence presented by the appellant was not sufficient to establish misuse of powers by the Head of Mission or to demonstrate that there was a context of psychological harassment. The Council submits that those findings remain valid, even in the absence of the detailed chronological information provided by the Council.
90 The Council also notes, as an ancillary point, that, during the hearing, the appellant did not object to the production of the information that the General Court had requested from the Council and also did not ask for the possibility to comment on it. Similarly, once the answers and the documents had been provided after the hearing, she still did not request the possibility to comment thereon.
91 As regards the alleged infringement of Article 47 of the Charter, the Council further submits, first, that the General Court’s request for additional information to be produced constituted a measure of organisation of procedure within the meaning of Article 89(3) of its Rules of Procedure. Secondly, in response to that request, the Council states that it provided precise chronological information, thus offering the General Court a complete picture of the situation during the year 2010. Thirdly, the appellant’s argument that she was deprived of the possibility of commenting on the additional ‘evidence’ is fallacious, since the Council did not produce any evidence, but merely provided detailed chronological information on the facts heard. Fourthly, the appellant did have the opportunity to comment on the facts upon which the General Court based its decision. The Council submits that the missing information was the confirmation of the exact dates on which those events occurred. According to the Council, the appellant has not, including in the context of the present appeal, been able to prove that those facts were erroneous.
92 As regards the alleged distortion by the General Court of the email of 8 April 2010, the Council submits that the General Court provided ample justification in the judgment under appeal. Contrary to what the appellant claims, the Head of the regional office of Banja Luka did not confirm, in that email, that there was no objective need for a Prosecutor in Banja Luka. While he had not personally requested such an appointment, he did nonetheless emphasise, in that email, that the redeployment of the appellant would be an ‘asset’ for the region of Banja Luka. In any event, according to the Council, the personal opinion of a Head of the regional office concerning the urgency with which a vacancy should be filled is not important for the purposes of the assessment of an action such as that brought by the appellant.
93 The Council disputes the appellant’s assertion that the redeployment took place while the selection procedure was still ongoing. The deadline for applications for the post in question was set at 23 March 2010. The appellant was redeployed to that post by the decision of 7 April 2010 at issue, when it had already become clear that the selection procedure would not produce the best candidate.
94 Lastly, the Council is of the opinion that the General Court did not distort the evidence in deciding not to rely on the Ombudsman’s decision.
95 According to the Council, even if it were accepted that the answers and the documents provided after the hearing amounted to new evidence upon which the appellant was not given the opportunity to comment, the appellant does not succeed in demonstrating to the requisite legal standard that there was a misuse of powers or a context of harassment. - The arguments of the parties concerning the fifth ground of appeal
96 By her fifth ground of appeal, the appellant criticises the General Court on the ground that it made a manifest error of assessment, in paragraphs 152 to 165 of the judgment under appeal, in again infringing Article 47 of the Charter and distorting the evidence brought before it.
97 Contrary to the General Court’s findings, the appellant claims that a solid factual basis for the legality of the appellant’s redeployment to Banja Luka is lacking. Furthermore, the findings in the Ombudsman’s decision were never questioned by the Council or by the General Court. In any event, the General Court did not hear the appellant on the subject of the answers and the documents provided after the hearing.
98 The appellant also contests the reasoning set out in paragraphs 166 to 173 of the judgment under appeal, culminating in the rejection of her claim for compensation.
99 The Council submits that the arguments put forward in the context of this ground of appeal have been presented with a view to a possible decision by the Court on the merits of the case. Noting that those arguments have already been addressed in the context of the previous ground of appeal, the Council refers to the observations which it presented in that regard and concludes that the action should be dismissed, even if the Court should set aside the judgment under appeal. - Findings of the Court
100 By her fourth ground of appeal, the appellant contests the General Court’s assessment of the pleas put forward at first instance based on misuse of powers and psychological harassment, while, by her fifth ground of appeal, she calls into question that Court’s assessment of the plea at first instance relating to a manifest error of assessment in the decision of 7 April 2010 at issue.
101 However, both the fourth and fifth grounds of appeal are based on distortion of the evidence and infringement of Article 47 of the Charter, and, moreover, the arguments put forward in support of those grounds of appeal overlap in large measure. The Court will therefore examine those grounds of appeal together.
102 Regarding, in the first place, the line of argument based on infringement of Article 47 of the Charter, in particular, the argument that the General Court erred in not inviting the appellant to comment on the answers and the documents provided after the hearing, it must be noted that, in order to satisfy the requirements of the right to a fair trial enshrined in that provision, the EU Courts must ensure that the principle that the parties should be heard is respected in proceedings before them and that they themselves respect that principle, which applies to any procedure which may result in a decision by an institution of the European Union that perceptibly affects a person’s interests (judgment of 27 March 2014, OHIM v National Lottery Commission , C‑530/12 P, EU:C:2014:186, paragraph 53 and the case-law cited).
103 Thus, the Court has already held that the principle that the parties should be heard means, as a rule, that the parties have a right to a process of inspecting and commenting on the evidence and observations submitted to the court and, moreover, that that basic principle of law is infringed where a judicial decision is founded on facts and documents which the parties, or one of them, have not had an opportunity to examine and on which they have therefore been unable to comment (judgment of 2 December 2009, Commission v Ireland and Others , C‑89/08 P, EU:C:2009:742, paragraph 52 and the case-law cited).
104 In order to satisfy the requirements associated with the right to a fair hearing, it is important that the parties should be apprised of, and should be able to debate and be heard on, the matters of fact and of law which will determine the outcome of the proceedings (judgment of 2 December 2009, Commission v Ireland and Others , C‑89/08 P, EU:C:2009:742, paragraph 56).
105 In the present case, it follows from paragraph 25 of the judgment under appeal and, indeed, it is not disputed in the context of the present appeal that, during the hearing before the General Court, that Court asked the Council to reply to certain questions in writing and to produce additional documents within two weeks of the date of that hearing. Furthermore, it is apparent from the material available to the Court, and is also not disputed in the context of this appeal, that, although the General Court communicated the answers and the documents provided after the hearing to the appellant, it closed the oral part of the procedure without inviting her to comment on them.
106 It is clear from a reading of paragraphs 125 to 127, 149, 159, 160 and 163 of the judgment under appeal that, as the appellant has submitted, the General Court did in fact base its decision on the content of the answers and the documents provided after the hearing in order to assess the merits of the third, fourth and fifth pleas before it, based, respectively, on misuse of powers, manifest error of assessment and psychological harassment. In those paragraphs, the General Court not only made reference to specific dates provided by the Council in order to lend to its reasoning factual precision that had been lacking, but also drew conclusions both from those dates and from other material contained in those answers and documents as a basis for rejecting those pleas in law.
107 More specifically, in the context of its joint examination of the third and fifth pleas at first instance, in particular its assessment as to whether there had been a misuse of powers, the General Court examined, inter alia, the appellant’s argument that it was not in the interests of the service for a Prosecutor to be assigned to Banja Luka as a matter of urgency.
108 In that context, the General Court pointed out, first of all, in paragraph 125 of the judgment under appeal, that it was clear from the answers and the documents provided after the hearing that the two candidates for the post in Banja Luka were chosen for other posts with the EUPM, in accordance with the priority indicated in their application forms, and concluded from this that, on the date of adoption of the decision of 7 April 2010 at issue, the selection procedure for that position had not yielded any results.
109 Next, in paragraph 126 of the judgment under appeal, the General Court noted that it was clear from those answers and those documents that, at the material time, the EUPM was facing a staff shortage and that the Head of Mission, on a number of occasions, had had to take appropriate measures in order to meet the needs of the EUPM by launching calls for applications.
110 Finally, in paragraph 127 of the judgment under appeal, the General Court found that, more particularly, it was clear from the answers and the documents submitted after the hearing that the selection procedure launched by the call for applications sent to the Member States on 2 March 2010 in order to fill the 34 vacant posts within the EUPM, which also included the post in Banja Luka, had resulted in the selection of only 26 candidates and that three other posts ‘were subject to extension or other operational decisions’. The General Court held that, in that context, there was no reason to conclude that the decision to redeploy the appellant had been taken because of circumstances other than those that could be deduced from those answers and those documents, that is to say, the lack of eligible candidates for the post in Banja Luka.
111 Furthermore, it is apparent from a comprehensive reading of paragraphs 121 to 131 of the judgment under appeal that the General Court relied on its findings set out in paragraphs 125 to 127 of that judgment, in conjunction with other factors, in concluding, in paragraph 132 of that judgment, that the evidence presented by the appellant with a view to demonstrating that it was not in the interests of the service to assign a prosecutor to Banja Luka as a matter of urgency was not sufficient to establish that there had been a misuse of powers by the Head of Mission when the decision of 7 April 2010 at issue was adopted.
112 Similarly, the General Court relied, in paragraph 149 of the judgment under appeal, on paragraphs 125 and 127 of that judgment in order to reject the appellant’s argument that the decision of 7 April 2010 at issue amounted to a ‘punishment’ that had been imposed on her as a result of criticisms which she had made of the management of the EUPM. It is apparent from a comprehensive reading of paragraphs 142 to 150 of that judgment that those findings, in conjunction with others, were expressly referred to as a basis for rejecting the appellant’s argument that that decision had been taken because of circumstances other than the interests of the service, in particular, as a result of the letter concerning the management of the EUPM referred to in paragraph 87 of the present judgment.
113 Furthermore, as the appellant also rightly submits, the General Court, in paragraphs 159, 160 and 163 of the judgment under appeal, relied exclusively on the answers and the documents provided after the hearing as a basis for rejecting the fourth plea at first instance based on a manifest error of assessment affecting the decision of 7 April 2010 at issue. In particular, those answers and those documents constitute the sole basis upon which the General Court concluded, in the first place, in paragraph 161 of that judgment, that the appellant’s claim concerning the absence of a real need to fill the post in Banja Luka at the time of her redeployment was devoid of any factual basis, and in the second place, in paragraph 163 of that judgment, that nothing led to the conclusion that the vacancy for the post in Sarajevo was not in line with the EUPM’s practice at that time of filling posts as soon as they became vacant.
114 It follows from the considerations set out in paragraphs 102 to 113 of the present judgment that the answers and the documents provided after the hearing, which had not been the subject of oral argument in the context of the proceedings giving rise to the judgment under appeal, were decisive in the reasoning of the General Court for the purposes of its rejection of the third, fourth and fifth pleas at first instance.
115 Consequently, in the light of the appellant’s arguments in the context of the present appeal, such as those set out in paragraph 87 of the present judgment, seeking to demonstrate how the General Court’s interpretation of the answers and the documents provided after the hearing was erroneous, it can in no way be ruled out that, had the appellant been afforded an opportunity to comment on those answers and those documents, she could have put forward arguments that might have altered the conclusions that the General Court drew from those answers and documents and, ultimately, the outcome of the proceedings.
116 Having regard to the foregoing, the Court finds that the General Court misinterpreted the audi alteram partem principle resulting from the requirements in relation to the right to a fair trial, with the result that the complaint put forward in the context of the fourth and fifth grounds of appeal based on infringement of Article 47 of the Charter must be upheld.
117 It follows that the judgment under appeal must be set aside in so far as, by that judgment, the General Court rejected, in paragraphs 151 and 164 thereof, the third, fourth and fifth pleas put forward at first instance and, consequently, in paragraph 165 of that judgment, dismissed the action for annulment in its entirety.
118 Under those circumstances, it is not necessary, at the present stage of the proceedings, to proceed, in the second place, to an examination of the arguments, also put forward in the fourth and fifth grounds of appeal, based on various distortions of the evidence, as the appellant also seeks, by those arguments, to have the parts of the judgment under appeal referred to in the previous paragraph set aside.
119 As regards the line of argument whereby the appellant seeks to have the judgment under appeal set aside in that, by that judgment, the General Court rejected her claim for compensation, it must be pointed out, as it follows from paragraphs 166 to 173 of the judgment under appeal, in particular from paragraph 172 thereof, that the General Court rejected that claim on that ground that, in the context of its assessment of the action for annulment, it had concluded that the Council could not be criticised for any unlawful conduct and, therefore, one of the cumulative conditions for an EU institution to incur non-contractual liability for unlawful conduct, following the case-law set out by the General Court in that regard in paragraph 170 of the judgment under appeal, had not been fulfilled.
120 As it follows from paragraph 115 of the present judgment, it cannot be ruled out that, had the appellant been in a position to comment on the answers and the documents submitted after the hearing, she could have put forward arguments which might have led the General Court to adopt a different finding on the question of whether the Council had acted unlawfully.
121 Consequently, without it being necessary, at the present stage of the proceedings, to examine the scope of the other conditions for non-contractual liability to be incurred, namely those of actual damage and of a causal link between the alleged conduct and the loss claimed, which have not been examined by the General Court in the judgment under appeal, the form of order by which the appellant seeks to have the judgment under appeal set aside in so far as, by that judgment, the General Court rejected her claim for compensation must, like those criticising the General Court’s dismissal of her action for annulment, be granted, since the General Court based the refusal to grant that claim for compensation on the finding, made in breach of the audi alteram partem principle, that there had been no unlawful conduct.
122 It follows from all of the foregoing considerations that the judgment under appeal must be set aside. Referral of the case back to the General Court
123 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, that Court may, where the decision of the General Court has been set aside, either itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.
124 In the present case, the Court considers that the state of the proceedings does not permit final judgment to be given in the matter, since the parties must first have the opportunity to set out their respective views on the answers and the documents provided after the hearing.
125 Consequently, the case must be referred back to the General Court for a ruling, following such an exchange of views, on the third, fourth and fifth pleas at first instance and on the appellant’s claim for compensation. Costs
126 Since the case is to be referred back to the General Court, the costs relating to the present appeal proceedings must be reserved. On those grounds, the Court (Fifth Chamber) hereby: 1. Sets aside the judgment of the General Court of the European Union of 11 April 2018, H v Council (T ‑ 271/10 RENV, EU:T:2018:180); 2. Refers the case back to the General Court of the European Union for a ruling on the third, fourth and fifth pleas of the action for annulment and on the claim for compensation; 3. Orders that the costs be reserved. Regan Jarukaitis Juhász Ilešič Lycourgos Delivered in open court in Luxembourg on 4 December 2019. A. Calot Escobar E. Regan Registrar President of the Fifth Chamber * Language of the case: English.