JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
7 February 2024 (*)
(Civil service – Officials – Promotion – 2021 promotion exercise – Decision not to promote the applicant to grade AD 7 – Article 45 of the Staff Regulations – Explicit decision rejecting the complaint – Modification of the application – Obligation to state reasons – Manifest error of assessment)
In Case T‑353/22,
XH, represented by K. Górny, lawyer,
applicant,
v
European Commission, represented by L. Hohenecker and L. Vernier, acting as Agents,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos (Rapporteur), President, S. Gervasoni and T. Pynnä, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure, in particular, the applicant’s request filed at the Court Registry on 14 July 2022 and the Commission’s observations on that request,
having regard to the request for convening a hearing submitted by the applicant and having decided, nevertheless, to rule without an oral phase of the procedure,
gives the following
Judgment
1 By her action based on Article 270 TFEU, the applicant, XH, seeks the annulment of the European Commission’s decision published in Administrative Notice No 31-2021 of 10 November 2021 not to include her name in the list of officials promoted as part of the 2021 promotion exercise (‘the decision not to promote’) and compensation for the damage which she allegedly suffered.
Background to the dispute
2 The applicant is an official in the European Anti-Fraud Office (OLAF). She was appointed and recruited at grade AD 5 in [confidential].
3 By email of 18 January 2018, the Commission’s Directorate-General for Human Resources and Security informed the applicant that her interim probation report had been removed from her personal file located in the IT system called Sysper 2.
4 On 4 February 2019, the applicant brought an action, registered as Case T‑511/18, seeking, on the basis of Article 270 TFEU, the annulment of the Commission decision published in Administrative Notice No 25-2017 of 13 November 2017 not to include her name in the list of officials promoted as part of the 2017 promotion exercise. That decision was confirmed by Decision R/96/18 of the Appointing Authority (‘the Appointing Authority’) of 7 June 2018 rejecting her complaint.
5 The action was upheld in part by the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291).
6 On 13 November 2018, the applicant was promoted to grade AD 6 under the 2018 promotion exercise, with effect from 1 January 2018.
7 On 18 January 2022, the applicant brought a second action, registered as Case T‑522/21, seeking, on the basis of Article 270 TFEU, first, the annulment of Commission Decision D/386/20 of 24 November 2020, refusing to modify her Sysper 2 file, and, second, the annulment of the Commission decision published in Administrative Notice No 32-2020 of 12 November 2020 not to include her name in the list of officials promoted as part of the 2020 promotion exercise and, third, compensation for the damage which she allegedly suffered.
8 That action was dismissed by order of 19 December 2022, XH v Commission (T‑522/21, not published, under appeal, EU:T:2022:867).
9 On 19 June 2021, the applicant lodged, before the Joint Promotion Committee (‘the JPC’), a complaint against the decision of the Director-General of OLAF not to include her name in the list of officials proposed for promotion as part of the 2021 promotion exercise.
10 On 22 October 2021, after the joint preparatory group (‘the JPG’) issued an opinion, the JPC decided, similarly, not to recommend the applicant for promotion to grade AD 7.
11 On 10 November 2021, the Commission published the decision not to promote.
12 On 31 January 2022, the applicant lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the decision not to promote, registered under number R/72/22.
13 On 31 May 2022, the failure of the Appointing Authority to respond to that complaint within the four-month period provided for in Article 90(2) of the Staff Regulations gave rise to an implied decision rejecting that complaint (‘the implied decision R/72/22 rejecting the complaint’).
Facts subsequent to bringing the action
14 On 2 June 2022, that is to say the day after bringing the present action, the Appointing Authority sent the applicant an email in which it communicated an explicit decision, signed electronically on 31 May 2022, rejecting her complaint (‘the explicit decision R/72/22 rejecting the complaint’). It asked her to acknowledge receipt of that decision.
15 On 14 July 2022, by document lodged at the Court Registry, the applicant submitted a request for measures of organisation of the procedure (‘the request of 14 July 2022’), by which she submitted new arguments and produced, in particular, the explicit decision R/72/22 rejecting the complaint. The request of 14 July 2022 and its annexes were added to the case file.
16 On 13 November 2022, the applicant was promoted to grade AD 7 under the 2022 promotion exercise, with effect from 1 January 2022.
Forms of order sought
17 The applicant claims that the Court should:
– annul the decision not to promote, as confirmed by the implied decision R/72/22 rejecting the complaint and by the explicit decision R/72/22 rejecting the complaint;
– order the Commission to pay her the sums of EUR 25 000 by way of compensation for the non-material damage suffered and of EUR 50 000 by way of compensation for the material damage suffered;
– order the Commission to pay the costs.
18 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
The oral part of the procedure
19 With regard to the request for a hearing filed by the applicant at the Court Registry by letter of 23 March 2023, it should be borne in mind that it follows from Article 106(3) of the Rules of Procedure of the General Court that, in the absence of a request for a hearing stating the reasons why a main party wishes to be heard, the Court may, if it considers that it has sufficient information available to it, rule on the action without an oral part of the procedure.
20 In that regard, the Practice Rules for the Implementation of the Rules of Procedure (‘the PRI’) state, in point 142, that a main party who wishes to present oral argument must submit a reasoned request for a hearing, within three weeks after service on the parties of notification of the close of the written part of the procedure. It states that that reasoning must be based on a real assessment of the benefit of a hearing to the party in question and must indicate the elements of the case file or arguments which that party considers it necessary to develop or refute more fully at a hearing. In order better to ensure that the arguments remain focused at the hearing, the statement of reasons should preferably not be in general terms merely referring, for example, to the importance of the case. Point 143 of the PRI states that, if no reasoned request is submitted by a main party within the prescribed time limit, the Court may decide to rule on the action without an oral part of the procedure.
21 It thus follows from Article 106 of the Rules of Procedure and from points 142 and 143 of the PRI that, if no request for a hearing is made, or if a request for a hearing is made without a statement of reasons, the Court may decide to rule on the action without an oral part of the procedure if it considers that it has sufficient information available to it from the material in the case file (judgment of 7 December 2022, PNB Banka v ECB, T‑330/19, under appeal, EU:T:2022:775, paragraph 80).
22 In the present case, it is apparent from the applicant’s letter of 23 March 2023 that she requests ‘measures of inquiry and witness interviews’. The last point of that letter states that the applicant requests a hearing for the sole reason that ‘the parties [can be] granted the opportunity to conduct witness interviews’.
23 Such a reason is similar to a request for the summoning of witnesses within the meaning of Articles 93 and 94 of the Rules of Procedure. Thus, it does not relate to an element of the case whose content has already been placed in the file and could be developed or debated at a hearing for the purposes of Article 106 of the Rules of Procedure. The request for a hearing contained in the letter of 23 March 2023 therefore aims to request further investigation and does not meet the reasoning requirements prescribed by the PRI and cited in paragraphs 20 and 21 above.
24 Under those circumstances, the Court, finding that it has sufficient information available to it, and for reasons relating to the sound administration of justice, has decided to rule on the action without an oral part of the procedure, in accordance with Article 106(3) of the Rules of Procedure.
Subject matter of the action
25 In the application, by her first head of claim, the applicant seeks the annulment of the decision not to promote, as confirmed by the implied decision R/72/22 rejecting the complaint. She also makes various requests for measures of organisation of procedure or measures of inquiry, supplemented by other requests submitted by documents filed at the Court Registry on 14 July 2022, and 23 and 27 March 2023. By her second head of claim, the applicant seeks compensation for the damage which she allegedly suffered.
26 At the outset, it should be noted that, by the request of 14 July 2022, the applicant requested the inclusion in the file of the present case of the explicit decision R/72/22 rejecting the complaint. In that regard, the Commission maintains, without being contradicted by the applicant, that the subject matter of the dispute evolved after the adoption of that decision and that the request of 14 July 2022 should be regarded as a modification of the application and of the first head of claim. She concludes that the present action should be considered as now being directed against the decision not to promote, as confirmed by the explicit decision R/72/22 rejecting the complaint.
27 In that regard, it should be recalled, in the first place, that Article 86(1) of the Rules of Procedure provides that ‘where a measure the annulment of which is sought is replaced or amended by another measure with the same [subject matter], the applicant may, before the oral part of the procedure is closed, or before the decision of the General Court to rule without an oral part of the procedure, modify the application to take account of that new factor’. Under Article 86(3) of those rules, in cases brought pursuant to Article 270 TFEU, the modification of the application must be made by separate document and within the time limit laid down in Article 91(3) of the Staff Regulations within which the annulment of the measure justifying the modification of the application may be sought.
28 Thus, when an implied decision is replaced by an explicit decision, after bringing an action, the applicant may request the annulment of the explicit decision by filing a statement of modification in accordance with the conditions provided for in Article 86 of the Rules of Procedure (see, to that effect, judgment of 24 March 2021, BK v EASO, T‑277/19, not published, EU:T:2021:161, paragraph 40).
29 Furthermore, with regard to the formal requirements set out in Article 86 of the Rules of Procedure, it should be noted that, while it is perfectly in order for a modification of the application to be subject to certain formal requirements, such formal requirements do not apply for their own sake but are, on the contrary, intended to ensure the adversarial nature of proceedings and the sound administration of justice (judgment of 24 January 2019, Haswani v Council, C‑313/17 P, EU:C:2019:57, paragraph 35).
30 In the present case, it must be found that, both in the request of 14 July 2022 and in the reply, the applicant made new arguments with a view, in particular, to disputing the reasons for the explicit decision R/72/22 rejecting the complaint, and to including that decision within the scope of the measures challenged as part of her action. In that regard, first, in the request of 14 July 2022, she disputed some of the grounds which appeared in that decision relating to the conduct of a comparison of the candidates’ merits. Secondly, in the reply, she maintained that ‘the contested decisions did not allow [her] to be informed of the reasoning followed by [the competent Appointing Authority], on the basis of the information contained in the extracts from appraisal reports, cited by the [competent] Appointing Authority for the purposes of assessing whether that decision was well founded’. She further stated that ‘due and exhaustive account of grounds justifying refusal of [her] promotion [was] absent in the contested decisions, in particular [decision] R/72/22’, that ‘[the] decisions [did] not explain [the] process behind fair comparison of merits, without exhaustively referring to [her] situation, and that ‘decision R/72/22 [did] not explain why [her] merits [were] considered inferior amongst the other candidates’.
31 In that context, it follows from those findings that, under Article 86 of the Rules of Procedure, first, the request of 14 July 2022 was lodged by the applicant by separate document within the prescribed time limit, namely within the time limit set in Article 91(3) of the Staff Regulations and before the close of the oral part of the procedure or before the decision of the Court to rule without an oral part of the procedure. Secondly, that request aims to modify the application to take into account a new element, namely the adoption of the explicit decision R/72/22 rejecting the complaint, replacing the implied decision R/72/22 rejecting the complaint. Thirdly, that request puts forward suitable arguments aimed at modifying, in essence, the subject matter of the action and, in that regard, the first head of claim. Fourthly, it was filed with, as an annex, the explicit decision R/72/22 rejecting the complaint justifying the modification of the application. Lastly, the Commission was able to submit in its defence observations in response to that request.
32 Consequently, it must be concluded that the request of 14 July 2022 constitutes, as the Commission also maintains, a modification of the application within the meaning of Article 86 of the Rules of Procedure, aimed at ensuring that account is taken of the explicit decision R/72/22 rejecting the complaint for the purposes of analysing the legality of the decision not to promote.
33 Under those circumstances, it must be considered that the subject matter of the present dispute, determined by the first head of claim, seeks the annulment of the decision not to promote, as confirmed by the implied decision R/72/22 rejecting the complaint and subsequently by the explicit decision R/72/22 rejecting the complaint.
34 In the second place, it should be borne in mind that, under Article 91(1) of the Staff Regulations, the General Court has jurisdiction to rule on any dispute relating to the legality of an act adversely affecting a person covered by the Staff Regulations. Under Article 90(2) of the Staff Regulations, an act adversely affecting the applicant consists either in a decision taken by the Appointing Authority or in the Appointing Authority’s failure to adopt a measure prescribed by the Staff Regulations. Article 91(2) of the Staff Regulations provides that an action is admissible only if the official has previously submitted a complaint to the Appointing Authority and if it has been rejected by explicit decision or by implied decision (judgment of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 7). The administrative complaint and its rejection, whether explicit or implied, by the Appointing Authority thus constitute an integral part of a complex procedure. Under those circumstances, the action, even if formally directed against the rejection of the official’s complaint, has the effect of bringing before the General Court the act adversely affecting the person concerned, against who the complaint was submitted (judgment of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8). Thus, where such a decision rejecting a complaint lacks any independent content, the effect of claims formally directed against that decision is to bring before the Court the act against which the complaint was submitted (judgment of 12 October 2022, Paesen v EEAS, T‑88/21, EU:T:2022:631, point 35).
35 Furthermore, when an applicant requests the annulment of an initial decision and an explicit decision rejecting the complaint, by modification of the application in accordance with the conditions of Article 86 of the Rules of Procedure, the legality of the act adversely affecting the applicant must be examined by taking into consideration the statement of reasons appearing in the decision explicitly rejecting the complaint, that reasoning being deemed to coincide with that act (see, to that effect, judgment of 24 March 2021, BK v EASO (T‑277/19, not published, EU:T:2021:161, paragraph 43). By contrast, there is no need to rule on the implied decision rejecting the complaint in so far as the explicit decision has replaced it (judgment of 24 March 2021, BK v EASO (T‑277/19, not published, EU:T:2021:161, paragraph 45).
36 In the present case, it must be found that the explicit decision R/72/22 rejecting the complaint merely confirms the decision not to promote and, therefore, lacks any independent content. Accordingly, the action must be considered as being directed against the decision not to promote, the legality of which must be examined also taking into consideration the statement of reasons appearing in the explicit decision R/72/22 rejecting the complaint (see, to that effect, judgment of 12 October 2022, Paesen v EEAS, T‑88/21, EU:T:2022:631, paragraph 37).
The claim for annulment of the decision not to promote
37 In support of her application for annulment of the decision not to promote, the applicant puts forward two pleas in law. The first plea in law alleges, in essence, a failure to comply with the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), irregularities made during several promotion procedures, including that of 2021, and the lack of fair comparison of merits. The second plea in law alleges a failure to take into account, during the 2017 and 2021 promotion exercises, by the Appointing Authority, allegedly highly positive assessments, which appeared in her appraisal reports, resulting in a manifest error of assessment made when applying the criteria relating to promotion.
38 In support of those two pleas, the applicant claims, in her pleadings, without making any specific plea in this regard, that the decision not to promote fails to provide an adequate statement of reasons or, at the very least, is provided with a belated statement of reasons and that, consequently, the Appointing Authority failed to comply with its obligation to provide reasons in this regard.
39 Under those circumstances, it is necessary to examine, first, whether the decision not to promote failed to provide an adequate statement of reasons and, if so, whether the possible late submission of that statement of reasons is likely to lead to the annulment of the decision not to promote.
The claim that the statement of reasons of the decision not to promote is inadequate and late
40 The applicant maintains, in essence, that she did not receive any explanations as to the content of the comparison of merits which the Appointing Authority made under the 2021 promotion exercise and as to the manner in which her seniority was taken into account for that purpose. In particular, she claims that the Appointing Authority failed to address her complaint against the decision not to promote, as a result of which she was not aware of the reasons why her name was not included in the list of officials promoted for the 2021 promotion exercise. In that regard, she maintains that the explicit decision R/72/22 rejecting the complaint was notified to her late, after the legal period of four months laid down for that purpose, which expired on 31 May 2022. Consequently, the reasons set out in that decision should not be taken into account in order to assess the reasoning and, in that context, the legality of the decision not to promote.
41 The Commission disputes the applicant’s arguments.
42 In the first place, as regards the claim that the statement of reasons of the decision not to promote is inadequate, it is appropriate to recall the settled case-law according to which the right to good administration includes, inter alia, under Article 41(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’), the obligation for the administration to give reasons for its decisions (judgments of 22 November 2012, M., C‑277/11, EU:C:2012:744, paragraph 83, and of 4 April 2019, OZ v EIB, C‑558/17 P, EU:C:2019:289, paragraph 52). The purpose of the obligation to give reasons is to enable interested parties, first, to know the justification for the measure so as to enable them to protect their rights and, secondly, to enable the Courts of the European Union to exercise their power to review the legality of the decision. That obligation, laid down in the second paragraph of Article 25 of the Staff Regulations, merely reiterates the general obligation laid down in Article 296 TFEU (see, to that effect, judgment of 9 July 2019, VY v Commission, T‑253/18, not published, EU:T:2019:488, paragraph 48), which requires that the statement of reasons must disclose in a clear and unequivocal manner the reasoning followed by the institution which adopted the measure in question (see, to that effect, judgment of 28 June 2018, EUIPO v Puma, C‑564/16 P, EU:C:2018:509, paragraphs 64 and 65).
43 The requirement to be satisfied by the statement of reasons must be assessed according to the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons is to be deemed adequate must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 14 July 2021, BG v Parliament, T‑253/19, not published, EU:T:2021:459, paragraph 45 and the case-law cited). In particular, the reasons given for a measure adversely affecting a person are adequate if that measure was adopted in a context which was known to that person and which enables him or her to understand the scope of the measure concerning him or her (judgment of 6 April 2022, KU v EEAS, T‑425/20, not published, EU:T:2022:224, paragraph 39).
44 It follows that a statement of reasons need not be exhaustive but must, on the contrary, be regarded as adequate if it sets out the facts and legal considerations which are of decisive importance in the general scheme of the decision (see judgment of 13 December 2017, CJ v ECDC, T‑692/16, not published, EU:T:2017:894, paragraph 116 and the case-law cited).
45 Furthermore, according to equally consistent case-law, although the Appointing Authority is not obliged to give reasons for a promotion decision, either to its addressee or to the candidates who were not promoted, it is, however, obliged to state the grounds for its decision rejecting a complaint lodged pursuant to Article 90(2) of the Staff Regulations by a candidate who was not promoted, the grounds for that decision being deemed to be identical to those for the decision against which the complaint was made. The statement of reasons must be made no later than the rejection of the complaint (see judgment of 21 May 2014, Mocová v Commission, T‑347/12 P, EU:T:2014:268, paragraph 41 and the case-law cited).
46 In addition, since promotions are made by selection, in accordance with Article 45 of the Staff Regulations, it is enough that the reasons given for the rejection of the complaint relate to the application of the conditions governing promotion laid down by law and the Staff Regulations to the official’s individual situation (see judgment of 26 October 2017, Paraskevaidis v Cedefop, T‑601/16, EU:T:2017:757, paragraph 39 and the case-law cited).
47 In the present case, it is important to note that the explicit decision R/72/22 rejecting the complaint comprises a total of 21 pages setting out, first, the legal framework applicable to promotion procedures and, secondly, in detail, the reasons why the applicant was not promoted. In that regard, it should be noted that the Appointing Authority is seeking to respond exhaustively to the arguments put forward by the applicant in her complaint, with regard to an alleged manifest error in the comparison of the merits of the officials eligible for promotion. In support of that response, anonymised extracts from the appraisal reports of other OLAF officials promoted to grade AD 7 are included and provided for the purpose of comparison with the applicant’s merits in terms of efficiency, skills, conduct in the service, languages known and responsibilities undertaken. Furthermore, the explicit decision R/72/22 rejecting the complaint includes several other parts dedicated to examining the condition of seniority in the applicant’s grade and the promotion quotas for the 2021 promotion exercise. That decision also examines the arguments that the applicant put forward in her complaint regarding non-compliance with the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), and as to the ‘conflicting roles’ allegedly assumed by several of her colleagues in the promotion exercise at issue.
48 Under those circumstances, it must be found that the statement of reasons provided in the explicit decision R/72/22 rejecting the complaint sets out in a clear and unequivocal manner the reasons which, in application of the legal and statutory conditions for promotion made to the individual situation of the applicant, led the Appointing Authority not to include her name in the list of officials promoted under the 2021 promotion exercise. The fact that, moreover, the applicant was able, as part of the present action, to submit arguments contesting the merits of that statement of reasons demonstrates that that decision was adopted in a context which was known to her. That applicant was therefore put in a position to understand the scope thereof, as were the Courts of the European Union put in a position to exercise their power to review the legality of that decision and that of the decision not to promote.
49 In the second place, with regard to the alleged late submission of the reasoning of the decision not to promote as communicated in the explicit decision R/72/22 rejecting the complaint, it should be noted that the Court has already ruled that the late communication of the statement of reasons could not, in itself, affect the inherent legality of a contested decision, and all the more so if it were possible to note that that late communication did not prevent the applicant from bringing an action before the Court and from usefully challenging that decision (see, to that effect, judgment of 26 January 2000, Gouloussis v Commission, T‑86/98, EU:T:2000:15, paragraph 76). In that regard, the Court noted that, in the event that it annulled the contested decision for a failure to state reasons, the Commission would then have to adopt a new decision, this time duly reasoned. In so far as the applicant had already received such a reasoned decision in the form of a response to her complaint, although that response occurred after bringing the action, such annulment could not benefit her in any way (see, to that effect, judgment of 26 January 2000, Gouloussis v Commission, T‑86/98, EU:T:2000:15, paragraph 77).
50 In the present case, admittedly, the explicit decision R/72/22 rejecting the complaint was notified to the applicant only on 2 June 2022, that is to say after the expiry of the four-month period provided for in that regard and, moreover, after bringing the present action.
51 However, in the particular circumstances of the case, it should be noted that the late communication to the applicant of the explicit decision R/72/22 rejecting the complaint did not adversely affect her. It is important to note that the applicant was not prevented from bringing the present action within the prescribed time limit. She was then able, before the filing of the defence and by means of the request of 14 July 2022, by which she modified the application, to challenge that decision usefully and, in the light of the statement of reasons for that decision, the decision not to promote. In that context, she was able to submit new arguments directed against the explicit decision R/72/22 rejecting the complaint and, in particular, against its reasoning. Furthermore, in response to the Commission’s arguments made in that regard in the defence, she was given the opportunity to respond to them in the reply.
52 In the light of the foregoing, the applicant’s arguments that the statement of reasons is inadequate and late as set out in the explicit decision R/72/22 rejecting the complaint must be rejected in their entirety as unfounded.
The first plea in law, alleging irregularities made during the 2017, 2020 and 2021 promotion procedures and a failure to comply with the judgment of 25 June 2020, XH v Commission (T‑511/18)
53 In the first plea in law, the applicant makes, in essence, three complaints. In that regard, she relies, first, on a failure to comply with the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), secondly, on the fact that the administration took into account elements appearing irregularly in the Sysper 2 file during the 2017, 2020 and 2021 promotion procedures and, thirdly, on other irregularities made in 2021, which allegedly imply that the Appointing Authority did not carry out a fair comparison of the candidates’ merits. In so doing, the decision not to promote was allegedly adopted in breach of Article 41 of the Charter and of Article 43 of the Staff Regulations, assessed in the light of Article 7 of the Charter, Article 45 of the Staff Regulations and the general implementing provisions of Article 45 of the Staff Regulations of 16 December 2013, published in Administrative Notice No 55-2013 of 19 December 2013 (‘the GIP’).
54 Since the alleged irregularities, set out in the second complaint, arise, according to the applicant, from the failure to comply with the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), set out in the first complaint, it is necessary to examine those first two complaints together, and then turn to the third complaint.
– The first two complaints, alleging a failure to comply with the judgment of 25 June 2020, XH v Commission (T‑511/18), and, in that respect, the continued negative impact of the interim probation report on the 2017, 2020 and 2021 promotion exercises
55 The applicant considers, in essence, that the inclusion of her interim probation report in her individual file influenced the content of all of her appraisal reports and, therefore, the 2017, 2020 and 2021 promotion exercises.
56 In that regard, the applicant claims that, at the time of the 2021 promotion exercise, the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), had still not been complied with. To the extent that the Appointing Authority failed to carry out a new fair comparison of the merits for the 2017 promotion exercise, the irregularities unlawfully taken into account by the latter during that promotion exercise had allegedly continued to influence the results of subsequent promotion exercises, in breach of Article 45 of the Staff Regulations. The Appointing Authority, for that reason, also made an error of assessment in the comparison of merits carried out under the 2021 promotion procedure, in breach of that same article. Furthermore, in addition to the irregularities linked to the failure to comply with the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), the Appointing Authority also failed to take into account, for the 2021 promotion exercise, the positive merits of the applicant with a view to comparing the candidates having regard to the quotas available for grade AD 7.
57 More precisely, the applicant maintains, like her argument in the case registered as Case T‑511/18, that, until the withdrawal of the interim probation report in January 2018, the successive evaluators concerned repeatedly consulted her interim probation report, which influenced the content of her appraisal reports and, consequently, the 2017, 2020 and 2021 promotion exercises. In particular, a member of the JPC consulted that report on 27 August 2018. In addition, elements resulting from that report are still included in her personal file. The applicant claims that this is attested by decision Ares (2020) 3954283 of 27 July 2020, since that decision continues to refer to elements which were identified in the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), as being problematic.
58 Furthermore, the applicant complains about the excessive time taken by the Appointing Authority in order to take a new promotion decision concerning her under the 2017 promotion exercise. In that regard, she notes that her promotion file for the 2017 promotion exercise does not record any access to her Sysper 2 file by members of the JPC or union representatives with a view to re-examining her situation following the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291). The failure to rectify her Sysper 2 file in this context allegedly results in the infringement of Article 43 of the Staff Regulations, read in the light of Article 7 of the Charter.
59 The applicant takes the view that it is impossible to rectify, a posteriori, the error of law that the Appointing Authority made, in examining, on the basis of an uncorrected Sysper 2 file and the appraisal reports established in 2017 and 2020, her applications for promotion under those exercises. Therefore, she is of the opinion that, for the 2017, 2020 and 2021 promotion exercises, the promotion procedures were carried out in an unfair manner in her respect, which are part of an ‘unlawful plan’ that the Commission is allegedly pursuing in order to harm her.
60 The Commission disputes those claims.
61 In the first place, with regard to the alleged negative influence of the interim probation report for the 2017 and 2020 promotion exercises, it should be recalled that the applicant’s request to remove ‘irregular elements arising from the interim probation report’ under those exercises has already been the subject matter of two actions. The first action, concerning the 2017 promotion exercise, gave rise to the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291) (see paragraphs 4 and 5 above). The second action, concerning the 2020 promotion exercise, was dismissed by the Court as inadmissible, due to lateness, by order of 19 December 2022, XH v Commission (T‑522/21, not published, under appeal, EU:T:2022:867) (see paragraphs 7 and 8 above).
62 Consequently, it must be stated that the applicant seeks, by those arguments, to extend the subject matter of the present dispute, restricted to the 2021 promotion procedure only, to cover promotion procedures separate from that procedure and on which, moreover, the Court has already ruled. Accordingly, those arguments relate to the 2017 and 2020 promotion exercises, which are not relevant for assessing the legality of the 2021 promotion procedure, which is the subject of the present action. Therefore, those arguments must be rejected as ineffective.
63 In the second place, with regard to the alleged negative influence of the interim probation report on the 2021 promotion exercise, first, it should be recalled that the content of that report and its influence on the subsequent reports until 2017 have already been analysed in the context of the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291).
64 In that regard, in the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), the Court annulled the decision not to promote the applicant to grade AD 6 under the 2017 promotion exercise and ordered the Commission to pay the applicant the sum of EUR 2 000 as compensation for the non-material damage suffered. The Court noted in particular that, unlike the appraisal reports, the interim probation report was not written with the aim of being used to assess her career development. Furthermore, the Court noted that that report, in the present case, contained criticisms which went beyond those objectively necessary for the purposes of assessing the existence of difficulties in the service and justifying an administrative decision to transfer to another unit. The Court concluded that those circumstances should have led to the applicant’s interim probation report and the end-of-probation report to which the interim report was annexed to be excluded from the documents serving as a basis for the comparison of the merits carried out under the 2017 promotion exercise (see, to that effect, judgment of 25 June 2020, XH v Commission, T‑511/18, EU:T:2020:291, paragraphs 146 to 149). Therefore, the Court annulled the 2017 decision not to promote.
65 However, it should be pointed out that, in the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), the Court did not order the withdrawal of the applicant’s personal file from the interim probation report or the elements which resulted from that report and that, in any event, it had no jurisdiction in that respect.
66 Secondly, it should be noted, first of all, that the interim probation report was removed from the applicant’s Sysper 2 file in 2018, as she herself acknowledges in her application. Consequently, the applicant’s argument based on the failure to rectify her Sysper 2 file in breach of Article 43 of the Staff Regulations is unfounded.
67 Next, it should be pointed out that, in accordance with Article 4(1)(a) of the GIP, a decision relating to promotion must be taken following a comparison of merits carried out exclusively on the basis of the appraisal reports drawn up for the officials since their last promotion, namely the appraisal reports established for the years 2018 to 2020. In the present case, when adopting the decision not to promote, the Appointing Authority did not take into consideration the applicant’s interim probation report, which, moreover, was removed from the file in 2018, or the appraisal reports established in 2015, 2016 or 2017. It is apparent from the explicit decision R/72/22 rejecting the complaint that only the appraisal reports relating to the 2018 to 2020 exercises were taken into consideration by the Appointing Authority.
68 Furthermore, it is important to state that the assessments contained in the applicant’s appraisal reports, drawn up for the years 2018 to 2020, make no reference to the applicant’s interim probation report or to the end-of-probation report. In addition, those assessments are distinct from those, which are more negative, contained in the 2015 and 2016 appraisal reports, which she submitted to the file of the present case. The appraisal reports established between 2018 and 2020, taken into account for the purposes of the 2021 promotion exercise, describe the applicant’s work as being ‘solid, coherent and characterised with legal and factual precision’ and show very good relationships with her colleagues and her superiors, contrary, for example, to the assessments contained in the 2015 appraisal report, which stated that there was still room for improvement, on the applicant’s part, with respect to team-working.
69 For all of those reasons, it must be concluded that the applicant fails to demonstrate the influence, which she alleges, of the interim probation report and the end-of-probation report on the appraisal reports established from 2018 onwards. It follows that the decision not to promote, taken on the basis of those reports, cannot in itself be considered to be vitiated by any irregularity and that, accordingly, there is nothing to demonstrate that there was an ‘unlawful plan’, in the present case, organised by the Commission with a view to harming the applicant’s career development.
70 Accordingly, the first two pleas in law must therefore be rejected as partly ineffective and partly unfounded.
– The third complaint, alleging the lack of fair comparison of the candidates’ merits due to other irregularities allegedly made
71 In addition to the irregularities set out in paragraphs 55 to 59 above, the applicant claims that some of her colleagues disregarded, during the 2021 promotion exercise, the rules for declaring conflicts of interest.
72 In that regard, the applicant asserts that, following her complaint of 19 June 2021 to the JPC (see paragraph 9 above), the deputy head of unit of the Commission’s medical service (‘the deputy head of unit’), also a member of the JPG, consulted her Sysper 2 file on 28 August 2021. She claims that that deputy head of unit was, moreover, a member of the unit involved in an invalidity procedure which was the subject of an action before the General Court registered as Case T‑613/21. She submits that, in this context, the deputy head of unit could have mistakenly perceived her state of health as an obstacle to her professional activity and to the development of her career. Thus, in addition to the fact that medical elements should not have been taken into account for the 2021 promotion exercise, the deputy head of unit should have declared a conflict of interest. In her request of 14 July 2022, the applicant submitted various documents, in support of those assertions, including email exchanges between her and the deputy head of unit regarding her medical file.
73 Likewise, the applicant alleges that two individuals, respectively from the Legal Service Unit and the Human Resources Unit of OLAF, ‘could have acquired from [her] entrusted information about potential defence of [her] rights, which should not have been shared if [she had known] that [they] could use this information [to her] disadvantage’. In the reply, the applicant further states that those individuals acted irregularly instead of statutory bodies such as the JPC or the JPG, thus preventing their participation.
74 The applicant also maintains, in the reply, that the decision not to promote and both the implied and explicit decisions R/72/22 rejecting the complaint were drawn up by three of her current and former OLAF colleagues, who have no statutory function allowing them to intervene in promotion procedures. Since she knew them in private and professional contexts, they should have declared a conflict of interest situation. Failing that, it should be found that Articles 11 and 11a of the Staff Regulations as well as Article 3 of Annex I to the DGE have been infringed.
75 The Commission disputes those arguments.
76 In the first place, with regard to the alleged disregard for the conflict of interest rules by three colleagues of the applicant (see paragraph 74 above), it must be found, first, that that applicant puts forward that argument only at the stage of the reply. Secondly, it is important to note that the documents she provides in support of that argument, namely views of her electronic file and the identification of the authors of various acts and decisions concerning her, could have been submitted as early as bringing the present action or at the time of the request of 14 July 2022. Thus, it must be concluded that, like the Commission, in so far as the applicant does not provide any justification as to that late submission, the evidence submitted in support of that late argument, and which could also have been submitted when the action was brought, must be rejected as inadmissible under Article 85 of the Rules of Procedure. Accordingly, the argument based on an alleged conflict of interest involving three of her colleagues must itself be considered to have been submitted late and must be rejected as inadmissible under Article 84 of the Rules of Procedure.
77 In the second place, with regard to the alleged disregard for the conflict of interest rules by one person from the Legal Service Unit and another from the Human Resources Unit of OLAF (see paragraph 73 above), first, it should be noted that the applicant refers only to computer extracts from her electronic file, from which it is allegedly apparent that those two individuals were responsible for taking decision Ares (2021) 2890505 of 30 April 2021 concerning the 2017 promotion procedure, in the context of the execution of the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291). Secondly, for the purposes of maintaining that the person from the Legal Service Unit of OLAF is the author of decision Ares (2022) 4039357 of 31 May 2022, itself concerning the 2017 promotion procedure, in the context of the execution of the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), she only refers to an annex entitled ‘Certificate that the lawyer is authorised to practise before a Court of a Member State’.
78 In that regard, it should be stated, first, that those two decisions, which relate to the execution of the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), and, therefore, to the 2017 promotion exercise, are not relevant for assessing the legality of the 2021 promotion procedure, which is the subject of the present action (see paragraph 62 above). Secondly, it should be noted that none of those decisions was signed by either of the two individuals concerned, while the applicant does not provide additional elements capable of demonstrating that they were also involved in the 2021 promotion procedure.
79 Therefore, the arguments concerning the alleged conflicts of interest of individuals from the Legal Service Unit and the Human Resources Unit of OLAF are irrelevant in the context of the present dispute, in addition to being insufficiently substantiated, and must be rejected on that basis.
80 In the third place, with regard to the alleged disregard for conflict of interest rules by the deputy head of unit, also a member of the JPG, it is important to recall that Article 11a(1) of the Staff Regulations provides that ‘an official shall not, in the performance of his [or her] duties and save as hereinafter provided, deal with a matter in which, directly or indirectly, he [or she] has any personal interest such as to impair his [or her] independence, and, in particular, family and financial interests’.
81 Furthermore, it is important to point out that a member of the medical service is bound by a duty of confidentiality with regard to the medical data of the individuals who consult him or her. Furthermore, Article 4(1)(a) of the GIP provides that the secure electronic system used to administer the promotion exercise is to contain the information required for the comparison of merits of officials eligible for promotion and that, for the purposes of that comparison, the Appointing Authority is to take into account, in particular, the reports on the officials drawn up since their last promotion or, failing that, since their recruitment. Thus, members of the JPC and the JPG are obliged to consult the appraisal reports for the purposes of specifically examining the situation of candidates for possible promotion. In addition, it should be pointed out that the JPG and the JPC are made up of several members, which implies that the assessment of one person is not sufficient, in itself, to determine the definitive meaning of the opinion rendered by the JPG, while the opinion of the latter does not bind the JPC, which is to adopt the final recommendation.
82 Under those circumstances, in the present case, the mere fact that the deputy head of unit, who is a member of the JPG and, moreover, a member of the medical service, consulted the applicant’s appraisal reports as part of the 2021 promotion procedure cannot suffice, in itself, to attest to a personal interest on her part such as to impair her independence within the meaning of Article 11a of the Staff Regulations.
83 In the light of the foregoing, it must be concluded that the applicant is not justified in relying, in support of her request for annulment of the decision not to promote, on a conflict of interest that the head deputy unit allegedly failed to declare.
84 It follows that the third complaint must be rejected as partly inadmissible, partly ineffective and partly unfounded, and that, consequently, the first plea must be rejected in its entirety.
The second plea in law, alleging a manifest error of assessment made by the Appointing Authority in the application of the criteria relating to promotion
85 In the second plea in law, the applicant claims, in essence, that the decisions not to promote for the 2017 and 2021 promotion exercises did not take into account the positive assessments which, according to her, clearly emerged from her appraisal reports. In so doing, the Appointing Authority, in deciding, despite those assessments, not to promote her, allegedly made, during those two promotion exercises, a manifest error of assessment in the application of the criteria relating to promotion, provided for in Article 45 of the Statute, in the light of Article 7 of the Charter.
86 In that regard, the applicant argues that all of the decisions rejecting her complaints refer to passages from her appraisal reports in a random manner, which do not allow the real and substantial development of her merits to be reflected. Thus, she considers that, if her appraisal reports had been duly assessed as a whole by the Appointing Authority, the latter should have concluded that her merits were superior, or at least equal, to those of her promoted colleagues and, therefore, that there was reason to promote her.
87 That plea is divided into two parts, concerning, respectively, the 2017 promotion exercise and the 2021 promotion exercise.
– The first part of the second plea in law, relating to the 2017 promotion exercise
88 With regard to the 2017 promotion exercise, the applicant considers in particular that she obtained distinctive and particularly positive results during the 2016 and 2017 promotion exercises. Likewise, her end-of-probation report in 2015 allegedly demonstrates her ability to learn, adapt and implement the advice received. Thus, her appraisal reports establish that her performance was of high quality.
89 The Commission disputes those arguments.
90 In that regard, in so far as, first, the 2017 promotion procedure does not fall within the subject matter of the first head of claim, covering only the 2021 promotion procedure and, second, that procedure has already been the subject of judicial examination in the context of Case T‑511/18, this part must be rejected as inadmissible for the same reasons as those set out in paragraphs 61 and 62 above.
– The second part of the second plea in law, relating to the 2021 promotion exercise
91 The applicant claims that her appraisal reports established for the years 2017 to 2019 are very good and show her motivation to progress, in addition to showing a proactive attitude on her part with regard to the results expected of her and the achievement of her overall objectives. In her opinion, those reports set out her merits as being very positive and she considers that, assuming that they were equivalent to those of her colleagues proposed for promotion, she should have been favoured on the basis of the secondary criterion of seniority, since the seniority of her colleagues actually promoted was three years, which corresponded to her seniority as of 31 December 2019.
92 Thus, the applicant reaffirms that the failure to take into account her seniority, the fact that her name was not proposed by the Director-General on the list of candidates put forward for promotion under the 2021 promotion exercise, the lack of fair comparison of her and the other candidates’ merits in that context, the failure to include her name in the final list for promotion in 2021 and, lastly, the failure of the Appointing Authority to process her complaint of 31 January 2022 within the prescribed four-month period clearly stem from irregularities affecting her end-of-probation report. She maintains that the execution of the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), and the rectification of her Sysper 2 file before the start of the 2021 promotion exercise could have prevented that situation.
93 The Commission disputes those arguments.
94 According to settled case-law, the administration enjoys a wide discretion as to the respective importance which it ascribes to each of the three criteria provided for in Article 45(1) of the Staff Regulations, the provisions of which do not preclude the possibility of weighting being applied between those criteria (see judgment of 14 November 2012, Bouillez v Council, F‑75/11, EU:F:2012:152, paragraph 58 and the case-law cited).
95 However, the wide discretion thus conferred on the Appointing Authority is limited by the need to consider the officials’ comparative merits carefully and impartially, in the interest of the service and in accordance with the principle of equal treatment. In practice, such consideration must be undertaken on a basis of equality, using comparable sources of information (see judgment of 14 November 2012, Bouillez v Council, F‑75/11, EU:F:2012:152, paragraph 59 and the case-law cited).
96 In that field, the Court’s review must be confined to the question whether, having regard to the various considerations which have influenced the administration in making its assessment, the latter has remained within reasonable bounds and has not used its power in a manifestly incorrect way (see judgment of 14 November 2012, Bouillez v Council, F‑75/11, EU:F:2012:152, paragraph 60 and the case-law cited).
97 It is therefore not for the Court to re-examine in detail all the files of the candidates eligible for promotion in order to make sure that it agrees with the conclusion reached by the Appointing Authority, since, if it undertook such an exercise, it would exceed its powers of judicial review by substituting its own assessment of the merits of the candidates eligible for promotion for that of the Appointing Authority (see judgment of 14 November 2012, Bouillez v Council, F‑75/11, EU:F:2012:152, paragraph 61 and the case-law cited).
98 Moreover, the Court cannot substitute its assessment of the candidates’ qualifications and merits for that of the Appointing Authority and annulment for a manifest error of assessment is possible only if it is apparent from the documents on the file that that authority exceeded the bounds of its discretion (see judgment of 14 November 2012, Bouillez v Council, F‑75/11, EU:F:2012:152, paragraph 62 and the case-law cited).
99 Lastly, without prejudice to the practical effect that the Appointing Authority’s discretion must be acknowledged to have, an error is manifest where it is easily recognisable and can be readily detected, in the light of the criteria to which the legislature intended decisions on promotion to be subject (judgment of 24 March 2011, Canga Fano v Council, F‑104/09, EU:F:2011:29, paragraph 35).
100 It is therefore in the light of those principles that the Court must examine whether the decision not to promote is vitiated by a manifest error of assessment.
101 In the present case, taking into account the reasoning contained in the explicit decision R/72/22 rejecting the complaint, it must be stated, first of all, that the Appointing Authority explained that the appraisal reports taken into account in the examination of the applicant’s merits were those relating to the years 2018 to 2020, given that the applicant was promoted in 2018.
102 Next, it is apparent from the explicit decision R/72/22 rejecting the complaint that, in 2021, nine AD 6 grade officials were eligible for promotion within OLAF, six of whom were ultimately promoted taking into account the promotion quotas. In that regard, the Appointing Authority includes anonymised extracts from the reports of promoted officials. It describes, for example, officials promoted as ‘pillars of the unit’, ‘asset[s] for the team’, people ‘highly appreciated by [their] colleagues and hierarchy’, who work with ‘dedication, competence and efficiency’ or who are ‘indispensable to the unit’.
103 As regards the applicant, it is apparent from her 2020 appraisal report that she ‘integrated very quickly into the team, that [she] participated in the daily activities of the unit despite the difficulties linked to self-isolation and teleworking’ and that she was ‘thanked and encouraged to continue in this direction’. However, in 2018, her overall level of performance is described only as ‘satisfactory’. Furthermore, it is specified that the applicant did not assume additional or management responsibilities, whereas the promoted officials assumed high-level responsibilities or had the capacity to receive more responsibilities in their functions.
104 Under those circumstances, it must be stated that all of those extracts demonstrate that the promoted officials all obtained a higher general assessment than that of the applicant.
105 Lastly, as regards the languages used, it appears from the explicit decision R/72/22 rejecting the complaint that the applicant uses two languages, other than her mother tongue, in the context of her duties. However, it should be noted that, by comparison, the Appointing Authority took into account the fact that three of the officials promoted used three or even four languages in addition to their mother tongue in the context of their duties.
106 It follows from all of those elements that, although the applicant’s appraisal reports actually demonstrate that she is a deserving official, with room for improvement, the candidacy of other officials could, without any manifest error of assessment, be preferred by the Appointing Authority, after a comparison of the merits of all the candidates within OLAF which revealed their greater merits.
107 Under those circumstances, it must be concluded that the applicant has not provided anything capable of proving that the Appointing Authority had committed a manifest error of assessment in not promoting her to grade AD 7 for the year 2021. It follows that the second part of the second plea in law must be rejected as unfounded and, accordingly, that the second plea in law must be rejected in its entirety.
108 In the light of the foregoing, the claim seeking annulment of the decision not to promote must be dismissed in its entirety.
The claim for compensation
109 The applicant seeks compensation for the non-material and material damage she claims to have suffered due, in particular, to the adoption of the decision not to promote and additional career delay resulting from the 2021 promotion exercise.
110 With regard to the non-material damage, the applicant estimates that damage at EUR 25 000. She relies, in essence, on the permanent stigmatisation within her work environment which allegedly harmed her professional progress and caused damage to her reputation. This is allegedly the consequence, in particular, of the influence, during the various evaluation and promotion exercises from 2017 to 2021, of the inclusion of her interim probation report in Sysper 2 and of the decision not to promote.
111 As regards the material damage, the applicant submits, in essence, that she suffered material damage estimated at EUR 50 000, corresponding to the approximate amount of an increase in remuneration, taking into account an average progression in the career of an official, which she should have received if her name had been included in the lists of promoted officials established for the 2017, 2020 and 2021 exercises. She also states that she incurred costs necessary for her defence in the context of pre-litigation procedures in 2015 and 2016, which are not covered.
112 The Commission disputes those arguments.
113 It follows from settled case-law regarding claims for compensation in staff cases that the European Union may incur non-contractual liability only if a number of conditions are fulfilled, namely: (i) the institution’s conduct must be unlawful, (ii) actual damage must have been suffered and (iii) there must be a causal link between the conduct and the damage alleged. Those three conditions are cumulative, which means that, if one of them is not satisfied, the European Union cannot be held liable (judgment of 25 June 2020, XH v Commission, T‑511/18, EU:T:2020:291, paragraph 161 and the case-law cited; see also to that effect, judgment of 1 June 1994, Commission v Brazzelli Lualdi and Others, C‑136/92 P, EU:C:1994:211, paragraph 42).
114 It has also been held that claims for compensation for material or non-material damage had to be rejected to the extent that they were closely linked to the claims for annulment which had themselves been rejected as inadmissible or unfounded (judgments of 5 February 1997, Ibarra Gil v Commission, T‑207/95, EU:T:1997:12, paragraph 88, and of 22 March 2018, Popotas v Ombudsman, T‑581/16, EU:T:2018:169, paragraph 171).
115 In the present case, first, since the applicant’s request for annulment of the decision not to promote was rejected in its entirety (paragraph 108 above), it follows that the condition relating to the unlawfulness of the alleged conduct of the Commission is not satisfied. Furthermore, with regard to the applicant’s claim for reimbursement of the costs necessarily incurred for her defence in the context of pre-litigation procedures in 2015 and 2016, that claim covers the 2017 promotion exercise, which is not the subject of the present action (see paragraph 62 above).
116 Consequently, the claim for compensation for the non-material and material damage referred to in paragraphs 110 and 111 above must be rejected in accordance with the case-law recalled in paragraphs 113 and 114 above.
117 Accordingly, the applicant’s claim for compensation must be dismissed.
The measures requested by the applicant
118 In the application, as part of the first head of claim, the applicant asks the Court to order the Commission to produce various items of evidence. Furthermore, she asks the Court to order the interviewing of participants in the evaluation and promotion procedures at issue and persons allegedly having additional knowledge concerning the disclosure of several documents which, in her opinion, are relevant.
119 In addition, on 27 March 2023, the applicant submitted a request for measures of inquiry concerning an alleged OLAF investigation presumably underway with regard to a person who, according to her, was involved in the invalidity procedure, which was the subject of another action, namely that which she brought as Case T‑613/21.
120 In that regard, it must be borne in mind that Article 90 of the Rules of Procedure provides that measures of organisation of procedure are to be prescribed by the Court. Furthermore, it is apparent from Article 92(1) of the Rules of Procedure that the Court has exclusive jurisdiction to assess the usefulness of measures of inquiry for the purpose of resolving the dispute (judgment of 10 July 2012, Interspeed v Commission, T‑587/10, not published, EU:T:2012:355, paragraph 81).
121 In the present case, since the present dispute may be resolved on the basis of the documents in the Court’s file, the measures of inquiry sought by the applicant are irrelevant for the purpose of resolving the dispute. Thus, all of those requests must be rejected.
122 It follows from all the foregoing considerations that the action must be dismissed in its entirety.
Costs
123 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.
124 Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Dismisses the action;
2. Orders XH to pay the costs.
da Silva Passos | Gervasoni | Pynnä |
Delivered in open court in Luxembourg on 7 February 2024.
V. Di Bucci | | M. van der Woude |