ORDER OF THE COURT (Eighth Chamber)
3 September 2020 (*)
(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Civil service – Rejection of candidature – Complaint with the European Ombudsman – Action for annulment and for damages – Appeal in part manifestly inadmissible and in part manifestly unfounded)
In Case C‑50/20 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 29 January 2020,
ZW, represented by T. Petsas, dikigoros,
appellant,
the other party to the proceedings being
European Investment Bank (EIB),
defendant at first instance,
THE COURT (Eighth Chamber),
composed of L.S. Rossi, President of the Chamber, J. Malenovský (Rapporteur) and N. Wahl, Judges,
Advocate General: M. Campos Sánchez-Bordona,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1 By her appeal, ZW seeks to have set aside the order of the General Court of the European Union of 21 November 2019, ZW v EIB (T‑727/18, not published, EU:T:2019:809; ‘the order under appeal’), by which the General Court dismissed as manifestly inadmissible ZW’s action seeking, first, annulment of the decision of the European Investment Bank (EIB) of 3 March 2017 rejecting her application for a post in that institution and, second, an order that the EIB pay compensation for the damage allegedly suffered as a result of that decision.
The appeal
2 Pursuant to Article 181 of the Rules of Procedure of the Court, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.
3 It is appropriate to apply that provision in the present case.
4 On 15 June 2020, the Advocate General defined his position as follows:
‘1. By her appeal, the appellant requests the Court to declare the appeal admissible and well founded, to set aside the order under appeal, to declare the action in Case T‑727/18 admissible, to refer the case back to the General Court for a decision on the substance and to order the EIB to pay the costs incurred in both sets of proceedings.
2. In support of her appeal, the appellant puts forward a single ground of appeal, formally alleging distortion of the forms of order sought at first instance and infringement of Article 52(1) of the Charter of Fundamental Rights of the European Union (“the Charter”).
3. That ground of appeal is divided into four complaints by which the appellant submits, in essence, that the General Court made several errors of law by dismissing, in its entirety, as manifestly inadmissible, her action for annulment of the decision of the EIB of 3 March 2017, rejecting her application for a post in that institution and ordering her to bear her own costs (paragraphs 28 and 29 of the order under appeal).
4. By her first complaint, she submits that the General Court distorted her forms of order sought by failing to refer, in paragraph 12 of the order under appeal, to her head of claim seeking a declaration that her action was admissible and well founded (paragraph 63 of the appeal).
5. In that regard, it is true, as is clear from the case-law of the Court, that, so as not to neglect its role, the EU judicature must examine the various claims and pleas submitted by an applicant, as formulated in his or her pleadings, without modifying their nature or substance (judgments of 29 June 1994, Klinke v Court of Justice, C‑298/93 P, EU:C:1994:273, paragraph 20; of 7 June 2018, Ori Martin v Court of Justice of the European Union, C‑463/17 P, EU:C:2018:411, paragraph 18; and of 29 November 2018, Alcohol Countermeasure Systems (International) v EUIPO, C‑340/17 P, not published, EU:C:2018:965, paragraph 34; order of the Vice-President of the Court of 21 March 2019, JPMorgan Chase and Others v Commission, C‑1/19 P(R), not published, EU:C:2019:230, paragraph 13).
6. In the present case, although it is true that the General Court omitted formally to reproduce, in paragraphs 12 and 13 of the order under appeal, the appellant’s head of claim requesting it to declare her action admissible and well founded, the fact remains that that order was adopted under Article 126 of the Rules of Procedure of the General Court and that the grounds stated in that order related exclusively to the admissibility of the action for annulment and the action for damages brought by the appellant at first instance. Accordingly, in those circumstances, it cannot be concluded that the General Court modified the nature or substance of the forms of order sought by the appellant.
7. It follows that it is appropriate to reject the first complaint as manifestly unfounded.
8. By her second complaint, the appellant submits, in essence, in paragraph 62 of the appeal, that the General Court infringed Article 52(1) of the Charter by failing to declare inapplicable, pursuant to Article 277 TFEU, Article 2(6) of Decision 94/262/ECSC, EC, Euratom of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman’s duties (OJ 1994 L 113, p. 15), under which complaints submitted to the European Ombudsman do not affect time limits for appeals in administrative or judicial proceedings.
9. It is clear from paragraphs 19 and 20 of the order under appeal that the General Court held that the unlawful nature of that provision was pleaded by the appellant after the application was lodged, in a document not provided for in its Rules of Procedure, and that, in any event, the arguments relied on in support of that plea of illegality had not been so relied on coherently and intelligibly. It concluded that the appellant’s complaint to the Ombudsman could not be taken into account for the purposes of assessing whether the deadline for bringing an action was complied with and that that plea of illegality was inadmissible (paragraphs 19 and 20 of the order under appeal).
10. The arguments put forward by the appellant allege merely that Article 2(6) of Decision 94/262 is unlawful in the light of Article 52(1) of the Charter, without specifying the reasons for her belief that the grounds on which the General Court rejected the plea of illegality as inadmissible are vitiated by an error of law.
11. Consequently, the second complaint must be rejected as manifestly inadmissible.
12. By her third complaint, the appellant submits that the General Court erred in law in rejecting her application under Article 126 of its Rules of Procedure.
13. However, it is clear from the case-law of the Court of Justice that, where an appellant considers that the General Court misapplied that provision, it is for the appellant to challenge the assessment by the General Court of the conditions to which the application of that provision is subject (see, to that effect, order of 3 June 2005, Killinger v Germany and Others, C‑396/03 P, EU:C:2005:355, paragraph 9).
14. In the present case, the appellant confines herself to complaining of an error of law allegedly committed by the General Court, without stating the reasons for her belief that the conditions for applying that provision were not satisfied.
15. In accordance with the settled case-law of the Court, it follows from, inter alia, Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court that an appeal must indicate precisely the contested elements of the decision which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal (order of 26 April 1993, Kupka-Floridi v ESC, C‑244/92 P, EU:C:1993:152, paragraph 10, and judgment of 4 April 2019, OZ v EIB, C‑558/17 P, EU:C:2019:289, paragraph 33).
16. Consequently, the third complaint must be rejected as manifestly inadmissible.
17. By her fourth complaint, the appellant submits that the General Court also erred in law in holding, in paragraph 26 of the order under appeal, that her claim for compensation for the damage which she has allegedly suffered had also to be dismissed as inadmissible.
18. However, the appellant does not explain why she is of the opinion that the factors relied on by the General Court in paragraphs 24 and 25 of the order under appeal to conclude that that claim was inadmissible are vitiated by an error of law.
19. It follows that, in accordance with the case-law referred to in paragraph 15 of the present position, the fourth complaint must be rejected as manifestly inadmissible.
20. In the light of all those considerations, the appeal must be dismissed in its entirety, by virtue of Article 181 of the Rules of Procedure, as being in part manifestly unfounded and in part manifestly inadmissible and the appellant must be ordered to pay the costs, in accordance with Article 137 of those rules, applicable to the procedure on appeal pursuant to Article 184(1) of those rules.’
5 For the same reasons as those stated by the Advocate General, the appeal must, under Article 181 of the Rules of Procedure, be dismissed in its entirety as in part manifestly inadmissible and in part manifestly unfounded.
Costs
6 Under Article 137 of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. In the present case, since this order was adopted before the appeal was served on the other party to the proceedings and therefore before the latter could have incurred costs, the appellant must be ordered to bear her own costs.
On those grounds, the Court (Eighth Chamber) hereby orders:
1. The appeal is dismissed as in part manifestly inadmissible and in part manifestly unfounded.
2. ZW shall bear her own costs.
Luxembourg, 3 September 2020.
A. Calot Escobar | | L.S. Rossi |
Registrar | | President of the Eighth Chamber |