Court of Justice of the European Communities (including Court of First Instance Decisions)

ORDER OF THE GENERAL COURT (Fourth Chamber)

20 May 2022 (*)

(Action for annulment and for damages – Civil service – Temporary staff – Request for renewal of a contract for an indefinite period – Decision not to renew – Action for annulment and for damages – Actionable measure – Manifest inadmissibility)

In Case T‑534/21,

VP, represented by L. Levi, lawyer,

applicant,

v

European Centre for the Development of Vocational Training (Cedefop), represented by A. Guillerme, T. Bontinck, L. Burguin and T. Payan, lawyers,

defendant,

THE GENERAL COURT (Fourth Chamber),

composed of S. Gervasoni, President, L. Madise (Rapporteur) and J. Martín y Pérez de Nanclares, Judges,

Registrar: E. Coulon,

having regard to the written part of the procedure,

makes the following

Order

1        By her action based on Article 270 TFEU, the applicant, VP, seeks, first, annulment of the decision of the European Centre for the Development of Vocational Training (Cedefop) of 2 March 2021 and, secondly, compensation for the damage which she claims to have suffered as a result of that decision.

 Facts and procedure

2        The applicant was recruited by Cedefop on 16 November 2007 as a member of the temporary staff to perform the duties of legal adviser. Her contract was renewed until 15 November 2017.

3        On 10 March 2017, the applicant submitted to the Director of Cedefop a request for renewal of her contract, on the basis of Article 90(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), applicable to members of the temporary staff under Article 46 of the Conditions of Employment of Other Servants of the European Union.

4        On 12 May 2017, the Director of Cedefop rejected the request, informing the applicant that her contract of employment would not be renewed.

5        By judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, ‘the annulment judgment’, EU:T:2020:613), the Court annulled Cedefop’s decision of 12 May 2017 not to renew the applicant’s contract as a member of the temporary staff (point 1 of the operative part) and the decision of 1 December 2017 rejecting the applicant’s complaint (point 2 of the operative part). The Court first of all upheld the sixth plea, alleging a manifest error of assessment. It took the view that, given the ongoing discussions concerning the future of Cedefop’s Legal Service and in the absence of a sound basis justifying the abolition of the Legal Service and the non-renewal of the applicant’s contract, and in the light of the numerous items of evidence adduced by the applicant, which show that the Director acted virtually alone and against the reasoned positions of a number of heads of department and of the internal audit service, the Director’s assessments in the decision of 12 May 2017 were, on the date of its adoption, entirely implausible. Furthermore, since the Court considered that it could not be ruled out that one of the grounds of the decision of 12 May 2017 might have been the loss of trust, it also examined the first plea, alleging infringement of the right to be heard, and the second plea, alleging infringement of the rights of the defence and of Article 26 of the Staff Regulations. As regards the first plea in law, the Court held that the Director of Cedefop, in adopting the decision of 12 May 2017, had infringed the applicant’s right to be heard. It held, in that regard, that it could not be ruled out that, if the applicant had been heard within the meaning of Article 41 of the Charter of Fundamental Rights of the European Union and, in particular, if she had been aware of all the relevant factors underlying the decision of 12 May 2017, she would have had the opportunity to influence the decision-making process at issue. She would have been able to express her views in full knowledge of the elements which were at the Director’s disposal and which supported the ground for non-renewal based on a loss of trust in her. As regards the second plea in law, the Court considered that the events to which the Director referred in the decision of 12 May 2017 to justify the loss of trust should, in accordance with the rights of the defence, have been included in the appellant’s personal file or at least actually been brought to her attention, which was not the case. The Court therefore also upheld the first and second pleas in law. Furthermore, the Court ordered Cedefop to pay EUR 30 000 as compensation for the material damage caused to the applicant, on account of the loss of a genuine opportunity to have her contract renewed for an indefinite period, and EUR 10 000 as compensation for non-material damage and costs (points 3, 4 and 6 of the operative part).

6        On 8 January 2021, the applicant asked Cedefop to implement the annulment judgment, in accordance with Article 266 TFEU. In particular, she asked Cedefop to replace the decision of 12 May 2017 with a decision renewing her contract for an indefinite period from 16 November 2017. She stated that she was prepared to return to work at any time.

7        By letter of 2 March 2021, the Executive Director of Cedefop replied to the applicant, stating that the implementation of the annulment judgment required only the payment of EUR 40 000 as compensation for the material and non-material damage suffered by the applicant, increased by costs, since the effects of the unlawfulness found by the Court would be reversed by the payment of the compensation ordered (‘the contested decision’). He therefore refused to consider that the annulment judgment required Cedefop to adopt a decision renewing the applicant’s contract for an indefinite period.

8        By letter of 10 March 2021 to Cedefop, the applicant expressed the view that, by its letter of 2 March 2021, Cedefop had not implemented points 1 and 2 of the operative part of the annulment judgment. She stated that, in accordance with its obligations under Article 266 TFEU, Cedefop should refrain from taking any measure rendering it difficult to implement the annulment judgment and that it should, to that end, keep vacant a budgetary post suitable for the reinstatement of the applicant.

9        On 23 March 2021, Cedefop paid the applicant the sum of EUR 47 363.66, pursuant to points 3, 4 and 6 of the operative part of the annulment judgment.

10      On 28 April 2021, the applicant submitted a complaint under Article 90(2) of the Staff Regulations against the decision of 2 March 2021. She again claimed that Cedefop had not implemented points 1 and 2 of the operative part of the annulment judgment.

11      On 25 May 2021, the applicant submitted a request under Article 90(1) of the Staff Regulations that the Management Board, in its capacity as appointing authority, adopt a new decision on the composition of Cedefop’s Appeals Committee, which is competent to decide on complaints. On 7 July 2021, the Management Board rejected the request. On 31 August 2021, the applicant lodged a complaint against the decision of 7 July 2021.

12      On 29 July 2021, the Chairman of Cedefop’s Appeals Committee sent a letter to the applicant in which he stated that that committee had decided, at its meeting of 16 July 2021, to uphold her complaint of 28 April 2021 (paragraph 10 above) and to ‘annul’ the decision of the Executive Director of Cedefop of 2 March 2021, since the applicant had not had the opportunity to provide comments on that decision (‘the decision of 29 July 2021’).

13      By letter of 23 August 2021, the applicant reiterated her request that Cedefop, in accordance with its obligations under Article 266 TFEU, refrain from taking any measures rendering it difficult to implement the annulment judgment and, to that end, that it keep vacant a budgetary post suitable for her reinstatement.

14      By application lodged at the Court Registry on 1 September 2021, the applicant brought an action for annulment of the contested decision and for compensation for the damage which she claimed to have suffered as a result of that decision.

15      By separate document lodged at the Court Registry on the same day, the applicant brought an application for interim measures against the act of 3 March 2021 by which the Executive Board of Cedefop supported the Executive Director’s conclusion to re-establish the post of internal legal adviser and to initiate a selection procedure in the second half of 2021.

16      By order of the President of the General Court of 25 November 2021, the application for interim measures was declared inadmissible in its entirety, in view of the lack of a sufficiently close link between the interim measure sought, on the one hand, and the form of order sought and the subject matter of the main action, on the other, and the costs were reserved.

 Forms of order sought

17      The applicant claims that the Court should:

–        annul the contested decision in so far as it refuses to implement points 1 and 2 of the operative part of the annulment judgment and the connected decision not to renew her employment contract for an indefinite period with effect from 16 November 2017;

–        order compensation for the non-material damage suffered, assessed ex aequo et bono at EUR 50 000;

–        order compensation for material damage suffered equal to the cost of the pre-litigation procedure necessary from the date of the annulment judgment;

–        order Cedefop to pay the costs.

18      Cedefop contends that the Court should:

–        primarily, dismiss the application for annulment as inadmissible;

–        in the alternative, dismiss the application for annulment as unfounded;

–        order the applicant to pay the costs.

 Law

19      Under Article 126 of the Rules of Procedure of the General Court, where the action is manifestly inadmissible, the Court may, on a proposal from the Judge-Rapporteur, decide to give a decision by reasoned order without taking further steps in the proceedings.

20      In the present case, the Court considers that it has sufficient information from the documents in the file and decides, pursuant to that article, to give a decision without taking further steps in the proceedings.

 The application for annulment

21      In the present case, the action seeks annulment of the contested decision in so far as it, in finding that the annulment judgment could be implemented by the payment of compensation, does not provide for the applicant to be reinstated in her post and for the renewal of her employment contract (see paragraph 7 above).

22      In that regard, it should be noted that the decision of the Executive Director of Cedefop not to renew the applicant’s contract of employment with effect from 16 November 2017, described by the applicant as a ‘connected’ decision in her claims, is inseparable from the contested decision. By that decision, the Executive Director considered that compliance with the annulment judgment required only the payment of EUR 40 000 as compensation for the material and non-material damage caused to the applicant, increased by costs, and therefore necessarily decided not to grant the request for renewal of the contract submitted by the applicant on the basis of Article 266 TFEU.

23      However, as is apparent from paragraph 12 above, the decision of 29 July 2021 upheld the applicant’s complaint of 28 April 2021, accepting her argument alleging infringement of her right to be heard during the administrative procedure, in that she had not been given the opportunity to comment on the contested decision.

24      The applicant states, however, that the decision of 29 July 2021 should be regarded as ‘inexistant’ within the meaning of the case-law, since it is vitiated by such an ‘obvious and serious’ defect that it deprives the act of any effect.

25      The applicant submits, in that regard, that the decision of 29 July 2021 is not ‘attributable’ to Cedefop but to the representative of the European Commission appointed by Cedefop’s Management Board as Chairman of the Appeals Committee since he is the only person on the Appeals Committee who was delegated appointing authority powers. However, since that representative of the Commission was not a member of Cedefop, he could not validly be the recipient of such a delegation of powers. That delegation is thus contrary to Article 2 of the Staff Regulations and Article 5(2) of Regulation (EU) 2019/128 of the European Parliament and of the Council of 16 January 2019 establishing [Cedefop] and repealing Council Regulation (EEC) No 337/75 (OJ 2019 L 30, p. 90). The decision of 29 July 2021 is thus the decision of the Chairman of the Appeals Committee alone, as is apparent, moreover, from the form of the decision which shows that it cannot be a decision of Cedefop or even of an EU institution. The applicant adds that the defect is all the more serious because, ultimately, only the Chairman of the Appeals Committee could vote at the meeting of that committee, since the other members had no power to sit on it. As is apparent from the decision of Cedefop’s Management Board of 7 July 2021, the other members of the Appeals Committee were appointed not by the Management Board, as should have been the case, but, respectively, by the Director and the Chairperson of the Staff Committee, in breach of the rules on the allocation of powers which provide that those members must first receive from the Management Board a delegation of appointing authority powers related to complaints which may be sub-delegated.

26      In the present case, it must be recalled, as a preliminary point, that acts of the EU institutions are in principle presumed to be lawful and therefore produce legal effects, even if they are tainted by irregularities, until such time as they are annulled or withdrawn (judgment of 5 October 2009, de Brito Sequeira Carvalho and Commission v Commission and de Brito Sequeira Carvalho, T‑40/07 P and T‑62/07 P, EU:T:2009:382, paragraph 150).

27      However, by way of exception to that principle, acts tainted by an irregularity whose gravity is so obvious that it cannot be tolerated by the EU legal order must be treated as having no legal effect, even provisional, that is to say that they must be regarded as legally non-existent. That exception seeks to maintain a balance between two fundamental, but sometimes conflicting requirements with which a legal order must comply, namely stability of legal relations and respect for legality (judgment of 5 October 2009, de Brito Sequeira Carvalho and Commission v Commission and de Brito Sequeira Carvalho, T‑40/07 P and T‑62/07 P, EU:T:2009:382, paragraph 151).

28      It is settled case-law that the gravity of the consequences attaching to a finding that a measure of an EU institution is non-existent means that, for reasons of legal certainty, such a finding might be reserved for quite extreme situations (see judgment of 5 October 2004, Commission v Greece, C‑475/01, EU:C:2004:585, paragraph 20 and the case-law cited).

29      In the present case, since the decision of 29 July 2021 was neither annulled by the Court nor withdrawn by the administration, it must therefore be presumed to be lawful and produce all its effects. It is only if it were ‘non-existent’ that it could be regarded as never having been part of the legal order and, therefore, as not precluding the admissibility of the action, since that action could, at the time it was lodged, have been based on an implied decision rejecting the complaint of 28 April 2021, within the meaning of Article 90(2) of the Staff Regulations.

30      In those circumstances, it is necessary to ascertain, in the light of the case-law set out in paragraphs 27 and 28 above, whether the decision of 29 July 2021 is vitiated by irregularities of such obvious gravity that it cannot be tolerated by the EU legal order and should be deemed not to have produced any legal effects.

31      The applicant asserts that is the case because, in essence, as stated in paragraph 25 above, since it is not a collegial decision of Cedefop, the decision of 29 July 2021 is in fact a decision solely attributable to the Chairman of the Appeals Committee, a Commission official, and was therefore adopted in breach of the rules on the allocation of powers within Cedefop, which provide that only the members of Cedefop may sit on the Appeals Committee.

32      However, it should be noted, in the first place, that that interpretation of the decision of 29 July 2021 to the effect that it is, in reality, a personal decision of the Chairman of the Appeals Committee does not stand up to scrutiny. First, that decision states that, in accordance with the Decision of 4 February 2000 of the Management Board of Cedefop concerning the treatment of complaints under Article 90 of the Staff Regulations (‘Cedefop’s decision of 4 February 2000’), ‘the Appeals Committee met in relation to the present complaint on 16 July 2021’ and decided, ‘in its meeting’, to uphold the complaint. Secondly, it should be noted that that decision bears the letterhead of Cedefop and it is stated that it was adopted in Brussels (Belgium), the seat of the Commission, and in Thessaloniki (Greece), the seat of Cedefop, as the meeting was held by video conference.

33      In that regard, contrary to the applicant’s submissions, the form of the decision of 29 July 2021 does not permit the inference that it could not come from Cedefop as an EU agency because it does not include certain customary references in terms of presentation (reference number, place of adoption, stamp, logo) and is not entitled ‘Decision’. First, the applicant does not allege any failure to comply with a text governing the form of Cedefop’s decisions. Secondly, the fact that the decision of 29 July 2021 is entitled ‘Note’ and not ‘Decision’ is irrelevant, since the decision-making content of the act in question is apparent from the very wording of that act, which states that ‘following an in-depth analysis of the file, the Appeals Committee has decided, in its meeting held on 16 July 2021, to uphold your complaint and annul the decision by the Executive Director of Cedefop of 2 March 2021 because your client was not given the opportunity to provide comments on it’.

34      In the second place, it is not apparent from the legislation governing the allocation of powers relating to the management of Cedefop’s staff that the irregularity alleged by the applicant concerning the appointment of the Chairman of the Appeals Committee, even if proved, is of such obvious gravity that it cannot be tolerated by the EU legal order and must lead to a finding that the decision of 29 July 2021 is non-existent. Cedefop’s decision of 4 February 2000 states, on the basis of Article 2 of the Staff Regulations, in Article 2 thereof, that ‘the Appeals Committee shall have five members[ including] one person, who shall not be a member of the staff of Cedefop, appointed by the Chairman of the Management Board … [, who] shall act as Chairman of the Appeals Committee’. Article 9 of that decision states, moreover, that ‘the Chairman of the Appeals Committee shall sign the decision [of that committee]’. It should be noted that the applicant has not challenged the legality of those provisions by means of a plea of illegality.

35      Moreover, the case-law has already considered that the infringement of certain rules of competence does not appear to be of such obvious gravity that the act in question should be regarded as legally non-existent (see, to that effect, judgments of 15 June 1994, Commission v BASF and Others, C‑137/92 P, EU:C:1994:247, paragraphs 50 to 52, and of 5 October 2009, de Brito Sequeira Carvalho and Commission v Commission and de Brito Sequeira Carvalho, T‑40/07 P and T‑62/07 P, EU:T:2009:382, paragraph 157).

36      In the third place, contrary to the applicant’s submissions, in the decision of 7 July 2021, Cedefop’s Management Board does not in any way indicate that the appointing authority powers were delegated exclusively to the Chairman of the Appeals Committee to the exclusion of the other members of that committee. Indeed, the decision of 7 July 2021 refers to Article 2 of Cedefop’s decision of 4 February 2000 which states that ‘the Appeals Committee shall have five members: two appointed by the Director of Cedefop from among the staff of Cedefop (excluding the Director), two appointed by the Chairperson of the Staff Committee from among the staff of Cedefop’. As stated in paragraph 34 above, the applicant does not dispute the legality of that decision by means of a plea of illegality. Moreover, although the applicant claims that Regulation 2019/128 conferred the powers of the appointing authority on Cedefop’s Management Board and not on the director of that body, she does not dispute, by means of a plea of illegality, the legality of the Decision of 26 February 2019 of Cedefop’s Management Board delegating the powers conferred by the Staff Regulations of Officials of the European Union on the appointing authority and by the Conditions of Employment of Other Servants of the European Union on the authority empowered to conclude contracts of employment to the Executive Director, which was adopted immediately after the entry into force of Regulation 2019/128.

37      It follows that, first, the applicant has not demonstrated that the decision of 29 July 2021 is vitiated by defects such that it cannot be attributed to Cedefop’s Appeals Committee and, secondly, even if the decision of 29 July 2021 was adopted in breach of the rules on the allocation of powers, that breach cannot be regarded as of such obvious gravity that the decision of 29 July 2021 must be regarded as legally non-existent.

38      In those circumstances, it must be held that since, following the decision of the Appeals Committee, the contested decision disappeared retroactively from the legal order, the claims seeking the annulment of that decision were, at the date on which the present action was brought, devoid of purpose and must therefore be rejected as inadmissible (see, to that effect, judgment of 9 December 2008, T v Commission, F‑106/05, EU:F:2008:162, paragraph 74).

39      The applicant submits, in the alternative, that, even if the decision of 29 July 2021 were to be regarded as a ‘decision’ of Cedefop on the complaint of 28 April 2021, the present action could still be based on a challengeable act. According to the applicant, the annulment of the contested decision by the Appeals Committee ultimately amounts to the rejection of the applicant’s request for renewal of her contract of 10 March 2017 (see paragraph 3 above) by an implied decision, which necessarily occurred after the expiry of the period laid down in Article 90(1) of the Staff Regulations. The applicant submits, in that regard, that, ultimately, the decision of 29 July 2021 does not provide any substantive response to that request.

40      It should be borne in mind that, under Article 90(1) of the Staff Regulations, any person to whom those Staff Regulations apply may submit to the appointing authority, a request that it take a decision relating to him or her. The authority is to notify the person concerned of its reasoned decision within four months from the date on which the request was made. If at the end of that period no reply to the request has been received, this is to be deemed to constitute an implied decision rejecting it, against which a complaint may be lodged.

41      However, the applicant’s request of 8 January 2021, in which the applicant requested Cedefop to adopt a new decision, following the annulment judgment, on her request of 10 March 2017 for the renewal of her contract, was the subject of an explicit decision, the contested decision, which was adopted within four months of the submission of the request of 8 January 2021. The fact that the contested decision was annulled on 29 July 2021, after the expiry of that period, does not imply the existence of an implied rejection decision provided for in Article 90(1) of the Staff Regulations, capable of constituting, instead of the contested decision, the challengeable act at the time the present action was brought on 1 September 2021. The contested decision was annulled by the reply to the applicant’s complaint. In view of the evolving nature of the pre-litigation procedure, following a decision on the complaint annulling the initial decision, the administration is obliged to adopt a new decision in the light of the objections made by the applicant in her complaint (see, to that effect and by analogy, with regard to the annulment of a decision rejecting a complaint, judgment of 16 May 2017, CW v Parliament, T‑742/16 RENV, not published, EU:T:2017:338 and the case-law cited). The contested decision must therefore be replaced by a new decision taking into account the applicant’s comments which she can make in accordance with the decision of 29 July 2021.

42      The applicant also submits that, in essence, the administration should have considered that the infringement of her right to be heard in the procedure leading to the contested decision was ‘made good’ by the fact that the Chairman of the Appeals Committee had invited her to be heard before the adoption of the decision of 29 July 2021. The applicant adds, in that regard, that if the administration were not allowed to ‘make good’ procedural deficiencies, it could delay the adoption of its decisions on the substance at will without exposing itself to the consequences of Article 90(2) of the Staff Regulations, which would create a ‘vicious circle’. The appellant adds that that situation would contravene fundamental principles such as the principle of legal certainty or the right of access to justice. It is also contrary to the purpose of the complaints procedure, which is to respond to the arguments raised by EU officials and members of staff in a reasoned manner, enabling them to understand the decision taken against them, and to the role of the Appeals Committee, which is not to perform a judicial function but rather to seek an amicable solution to disputes.

43      However, in any event, first, it should be noted that, as the applicant states in the application, she ‘rejected expressis verbis the invitation to a hearing’ which had been addressed to her by the Chairman of the Appeals Committee. Secondly, as is apparent from paragraph 41 above, the administration, following the decision of 29 July 2021, will be required to adopt a new decision taking into account the applicant’s comments in such a way that no ‘vicious circle’ will be created by the decision of 29 July 2021 which, on the contrary, will give rise to a new decision free of the defects found. Moreover, such an argument, based on the premiss that the administration will not correct the defect identified by the appeals body, is purely speculative.

44      In the light of the foregoing, the claim for annulment of the contested decision must be rejected as manifestly inadmissible.

 The claim for compensation

45      The claim for damages seeks compensation for the damage allegedly caused to the applicant by the refusal to implement points 1 and 2 of the operative part of the annulment judgment. It follows from the foregoing that the decision by which the administration must implement those points of the operative part of the annulment judgment has not yet been made, so that it is not possible, at this stage, to determine whether the applicant is justified in invoking damage linked to the refusal to implement that part of the operative part of the annulment judgment. The claim for compensation is therefore premature (see judgment of 25 June 2020, ZS v EIB, T‑659/18, not published, EU:T:2020:281, paragraph 90 and the case-law cited) and must accordingly be rejected as manifestly inadmissible.

46      It follows from all the foregoing that the action must be dismissed as manifestly inadmissible.

 Costs

47      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

48      Since the applicant has been unsuccessful, she must be ordered to pay the costs, including those relating to the proceedings for interim measures, in accordance with the form of order sought by Cedefop.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby orders:

1.      The action is dismissed as manifestly inadmissible.

2.      VP shall bear her own costs as well as the costs incurred by European Centre for the Development of Vocational Training (Cedefop), including the costs of the proceedings for interim measures.

Luxembourg, 20 May 2022.

*      Language of the case: English.

© European Union
The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice. This electronic version is not authentic and is subject to amendment.