Language of document : ECLI:EU:T:2022:637

JUDGMENT OF THE GENERAL COURT (First Chamber)

19 October 2022(*)

(Arbitration clause – Common foreign and security policy – Civil international staff of EU international missions – Consecutive fixed-term employment contracts – Internal competition – Non-renewal of a fixed-term contract – Contractual liability – Non-contractual liability – Action for damages – Jurisdiction of the General Court – Admissibility – Procedure by default)

In Case T‑242/17 RENV,

SC, represented by A. Kunst, lawyer,

applicant,

v

Eulex Kosovo, established in Pristina (Kosovo), represented by L.-G. Wigemark, acting as Agent, and by E. Raoult, lawyer,

defendant,

THE GENERAL COURT (First Chamber),

composed, at the time of the deliberations, of H. Kanninen, President, N. Półtorak and M. Stancu (Rapporteur), Judges,

Registrar: E. Coulon,

gives the following

Judgment

1        By her action based on Articles 272 and 268 TFEU, the applicant, SC, asks the General Court, in essence, after finding, first, that Eulex Kosovo had failed to fulfil its contractual and non-contractual obligations and, secondly, that the decision not to accept her application following the internal competition which took place on 19 July 2016 for the post of prosecutor and the decision not to renew her final employment contract which resulted from that decision are unlawful, to order Eulex Kosovo to compensate her for the material and non-material damage she allegedly suffered as a result.

 Background to the dispute

2        The Eulex Kosovo Mission was created by Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO (OJ 2008 L 42, p. 92). That action was extended several times, most recently by Council Decision (CFSP) 2021/904 of 3 June 2021 amending Joint Action 2008/124 (OJ 2021 L 197, p. 114), until 14 June 2023.

3        The applicant is a former member of the international contract staff of Eulex Kosovo. She was employed by Eulex Kosovo as a prosecutor, with the status of international contractual staff, on the basis of five consecutive fixed-term contracts during the period from 4 January 2014 to 14 November 2016. The final contract between the applicant and Eulex Kosovo was concluded for the period from 15 June to 14 November 2016.

4        The first two fixed-term contracts contained a jurisdiction clause designating the courts of Brussels (Belgium) as having jurisdiction in the event of any dispute arising out of the employment contract. The final three fixed-term contracts provided, in Article 21 thereof, that any disputes relating to the employment contract were to be ‘referred to the jurisdiction of the Court of Justice of the European Union, pursuant to Article 272 [TFEU]’.

5        In accordance with Article 1.2 of the final employment contract, the Operation Plan (‘OPLAN’), the Concept of Operations, the Code of Conduct and the standard operating procedures (‘SOP’) of Eulex Kosovo formed an integral part of that contract.

6        On 14 April 2014, the applicant had a meeting with, inter alia, her direct supervisor, who was Eulex Kosovo’s Prosecutor General, to discuss her performance evaluation report. At that meeting, she was provided with a copy of that evaluation report. In that report, the applicant’s direct supervisor had assessed her activity by stating that ‘she [had] not demonstrated a willingness to work [and] an understanding of the role and factors pertinent to the job’ and that ‘[she had] not accepted guidance and [had], on a number of occasions, been openly dishonest’. On the basis of that assessment, the applicant’s direct supervisor had stated that he did not recommend the extension of her employment contract.

7        On 28 April 2014, the applicant lodged a complaint against the 2014 evaluation report, in which she challenged the assessments contained in that report and, in general, the irregularities committed in the evaluation procedure. By decision of 12 August 2014, the Head of Eulex Kosovo (‘the Head of Mission’) informed the applicant that the 2014 evaluation report had been annulled. The ground for annulment accepted was the fact that the three-month evaluation period was too short to draw a definitive conclusion on the unsatisfactory performance of a member of staff.

8        On 1 July 2014, the applicant received notification of the organisation of an internal competition for the post of prosecutor, since, under the OPLAN, the number of prosecutor posts had to be reduced and Article 4.3 of the SOP on the Principles and Process of Reconfiguration (‘the SOP relating to the reorganisation’) provided for the organisation of a competition in such circumstances.

9        The applicant took part in the 2014 internal competition, which took place during the summer of that year. On 19 August 2014, she was informed by her direct supervisor that she had failed that competition.

10      On 25 August 2014, the applicant lodged a complaint against the result of the 2014 internal competition. She disputed, first, the fact that the chairperson of the selection board and another member had the same nationality and, secondly, the presence of her direct supervisor as chairperson of that selection board, inasmuch as the latter was involved in the grievance procedure against the 2014 evaluation report and that that complaint was still pending at the date of organisation of the 2014 internal competition. The Head of Mission annulled the 2014 internal competition on the ground that, contrary to Article 7.2(c) of the SOP for Staff Selection, two members of the selection board held the same nationality.

11      In addition, in 2014, Eulex Kosovo requested the applicant on several occasions to take a driving test. The applicant failed that test three times during that period, in the last place on 22 October 2014. In September and October 2014, the applicant provided the human resources unit of Eulex Kosovo with documents attesting that she had a disability affecting her hand. In November 2015 and February 2016, the applicant was again asked to take a driving test.

12      By letter of 24 June 2016, the applicant was informed of the organisation of the 2016 internal competition, since a decision to reduce the number of prosecutor’s posts in the mission from 22 to 13 had been taken on the basis of the OPLAN and Eulex Kosovo’s deployment plan approved on 20 June 2016 by the Civilian Operations Commander (‘the 2016 deployment plan’). In the same letter, it was stated that failure to participate in that competition or unsatisfactory results meant that the final employment contract would not be renewed, whereas a positive result in the competition would lead to its renewal.

13      On 19 July 2016, in the context of the 2016 internal competition, the applicant took part in the interview before the selection board. Both before and during the interview, the applicant challenged the composition of the selection board on the ground that the chairperson of that selection board was her direct supervisor, involved in the two grievance procedures which she had previously brought against the 2014 evaluation report and against the 2014 internal competition. Accordingly, the applicant claimed that the composition of the selection board did not meet the requirement of impartiality laid down in the OPLAN and the SOP.

14      By letter of 30 September 2016, the applicant was informed of the decision not to accept her application following the 2016 internal competition and of the decision not to renew her final employment contract (‘the contested decisions’).

15      By letter of 10 October 2016, the applicant lodged a complaint against the contested decisions in accordance with Article 5 of the SOP relating to the reorganisation. She claimed that the chairperson of the selection board had a conflict of interests, which rendered the 2016 internal competition procedure unfair and irregular and therefore infringed the provisions of the SOP relating to the reorganisation and those for staff selection.

16      By letter of 31 October 2016, the Head of Mission rejected the applicant’s complaint, holding that the principles for selecting staff had not been infringed.

17      On 1 November 2016, the applicant sent an email to the Head of Mission requesting arbitration pursuant to Article 20(2) of her most recent employment contract. That request was rejected on 14 November 2016, the day on which her employment contract expired.

 Initial proceedings before the General Court

18      By application lodged at the General Court Registry on 25 April 2017, the applicant brought an action in which she claimed, in essence, that the Court should:

–        find that Eulex Kosovo, on the one hand, had breached its contractual obligations in the performance of the contract and in the application of the OPLAN and the Concept of Operations, the SOP relating to the reorganisation and the SOP for Staff Selection, and, on the other, had infringed the contractual principles of fairness and of good faith, and that therefore she was entitled to compensation;

–        find that Eulex Kosovo had failed to fulfil its non-contractual obligations vis-a-vis the applicant and that therefore she was entitled to compensation;

–        find that the contested decisions were unlawful, owing to the lack of impartiality of the selection board, the conflict of interests of that selection board’s chairperson and the principles of staff selection;

–        order Eulex Kosovo to pay her, first, in respect of material damage, a sum corresponding to 19 months’ gross salary, to which the daily subsistence allowance and the salary increase were to be added, and, secondly, in respect of non-material damage, a sum provisionally assessed ex æquo et bono at EUR 50 000;

–        order Eulex Kosovo to pay the costs, plus interest calculated at the rate of 8%.

19      By separate document lodged at the General Court Registry on 24 August 2017, Eulex Kosovo raised a plea of lack of jurisdiction and inadmissibility under Article 130(1) of the Rules of Procedure of the General Court (‘the plea of lack of jurisdiction and inadmissibility of 24 August 2017’), in which it requested that the General Court dismiss the action in its entirety and order the applicant to pay the costs.

20      The applicant submitted her observations on the plea of lack of jurisdiction and inadmissibility of 24 August 2017 on 20 October 2017 and, on that occasion, asked the General Court to declare that it had jurisdiction to rule on the action and to declare the action admissible.

21      By order of 19 September 2018, SC v Eulex Kosovo (T‑242/17, EU:T:2018:586), the General Court, without examining the plea of lack of jurisdiction and inadmissibility of 24 August 2017, dismissed, pursuant to Article 126 of the Rules of Procedure, the action brought by the applicant as being, in part, manifestly inadmissible and, in part, manifestly lacking any foundation in law.

 Judgment on appeal

22      By judgment of 25 June 2020, SC v Eulex Kosovo (C‑730/18 P, EU:C:2020:505), the Court of Justice set aside the order of 19 September 2018, SC v Eulex Kosovo (T‑242/17, EU:T:2018:586), referred the case back to the General Court and reserved the costs. In the first place, the Court of Justice considered, in essence, that the General Court had incompletely described the legal framework governing the adoption of the decision relating to the 2016 internal competition, since it had not taken into account the fact that the arrangements for organising that competition were defined not only by the OPLAN and the 2016 deployment plan, but also by the SOP relating to the reorganisation.

23      In addition, the Court of Justice stated, in that regard, that it was apparent from Article 10(3) of Joint Action 2008/124 that the conditions of employment and the rights and obligations of international and local staff were to be laid down in the contracts to be concluded between Eulex Kosovo and members of staff and that, inasmuch as Article 1.2 of the final employment contract expressly stated that the OPLAN and the SOP were an integral part of that contract, it was for the General Court to interpret that article in order to assess the scope of that stipulation of the contract and, in particular, its possible effects on the contractual or statutory nature of the rules set out in the OPLAN and the SOP relating to the reorganisation.

24      In the second place, the Court of Justice noted that, before deciding that the decision not to renew the final employment contract was separable from that contract, the General Court should have assessed the legality of that decision in the light of Article 4.3 of the SOP relating to the reorganisation, inasmuch as the latter established a link between the results of the internal competition and the non-renewal.

25      Consequently, the Court of Justice set aside the order of 19 September 2018, SC v Eulex Kosovo (T‑242/17, EU:T:2018:586), and referred the case back to the General Court, stating that it would be for the General Court, first, to interpret Article 1.2 of the final employment contract in order to rule on whether that contract was separable from the contested decisions, next, should those decisions be regarded as linked to the contractual relationship between the applicant and Eulex Kosovo, to examine the plea of lack of jurisdiction and inadmissibility of 24 August 2017 and the merits of the third head of claim in the action at first instance and, lastly, should the General Court ultimately find that that head of claim was admissible, to rule again on the other heads of claim of the action at first instance.

 Procedure following referral of the case back to the General Court

26      Following the judgment of 25 June 2020, SC v Eulex Kosovo (C‑730/18 P, EU:C:2020:505), the General Court was seised of the case by that decision, in accordance with Article 215 of its Rules of Procedure.

27      By separate document lodged at the General Court Registry on 30 October 2020, Eulex Kosovo raised a plea of inadmissibility under Article 130(1) of the Rules of Procedure (‘the plea of inadmissibility of 30 October 2020’) in which it asked the Court to dismiss the action in its entirety, on the ground that it was inadmissible, and to order the applicant to pay the costs. The applicant submitted her observations on that plea on 28 January 2021 and asked the General Court on that occasion, first, to declare all the facts, evidence and arguments raised by Eulex Kosovo inadmissible, and then to declare the action admissible.

28      On 18 February 2021, the applicant submitted a request that the General Court open the oral part of the procedure, in accordance with Article 130(6) of its Rules of Procedure.

29      On 24 February 2021, Eulex Kosovo lodged at the Court Registry a document supplementing its plea of inadmissibility of 30 October 2020, containing a copy of the OPLAN applicable to the present case.

30      By order of 2 June 2021, the General Court reserved its decision on the plea of lack of jurisdiction and inadmissibility of 24 August 2017 and the plea of inadmissibility of 30 October 2020 until it ruled on the substance of the case. Consequently, by letter of the same date, Eulex Kosovo was set a deadline within which it was required to lodge a defence.

31      By letter of 24 September 2021, the General Court, first, informed the parties that Eulex Kosovo had failed to submit a defence within the prescribed period and, secondly, invited the applicant to submit her observations on the next step to be taken in the proceedings and, in particular, to state whether, pursuant to Article 123(1) of the Rules of Procedure, she intended to apply to the General Court for judgment by default.

32      By document lodged at the Court Registry on 12 November 2021, the applicant applied to the Court, pursuant to Article 123(1) of the Rules of Procedure, for judgment by default.

 Law

33      Under Article 123(3) of the Rules of Procedure, before giving judgment by default, the Court is to consider whether it manifestly lacks jurisdiction to hear and determine the action or whether that action is manifestly inadmissible or manifestly lacking any foundation in law.

 Jurisdiction of the General Court and admissibility of the action

 Jurisdiction of the General Court

34      In the present case, first, Eulex Kosovo calls into question the jurisdiction of the General Court on the grounds that the action concerns in part contracts of employment which, in the event of a dispute, confer jurisdiction on the courts of Brussels and that Article 272 TFEU must be interpreted strictly, in accordance with the settled case-law of the General Court and the contributions made by the orders of 30 September 2014, Bitiqi and Others v Commission and Others (T‑410/13, not published, EU:T:2014:871), and 9 November 2016, Jenkinson v Council and Others (T‑602/15, EU:T:2016:660). Therefore, it contends, the scope of the clause conferring jurisdiction on the Court of Justice of the European Union provided for in the final employment contract is expressly limited to disputes relating to the contractual period from 15 October 2014 to 14 November 2016 and cannot be extended to the earlier contracts, which provided that the courts of Brussels had jurisdiction. Secondly, Eulex Kosovo submits that both the OPLAN and the SOP are administrative in nature, so that the applicant should have challenged the contested decisions, which are based, inter alia, on the OPLAN and on the SOP, on the basis of Article 263 TFEU and not on that of Article 272 TFEU.

35      As regards the argument that the scope of the clause conferring jurisdiction on the Court of Justice of the European Union provided for in the final employment contract is expressly limited to disputes relating to the contractual period from 15 October 2014 to 14 November 2016, it must be held that the applicant relies on procedural irregularities connected with her interview in the context of the 2016 internal competition as well as on problems of harassment relating to repeated requests to sit a driving test. Accordingly, she submits that Eulex Kosovo has failed to fulfil its contractual and non-contractual obligations and that therefore the contested decisions are unlawful, conferring on her a right to damages for the harm allegedly suffered.

36      Admittedly, in order to substantiate her arguments, the applicant relies on a succession of events which began or occurred in 2014.

37      However, those facts are relied on with the aim of supporting the complaints relating to the conflict of interests, the lack of impartiality and the misuse of power on the part of the chairperson of the selection board in the organisation of the 2016 internal competition and the repeated requests that the applicant sit a driving test that were made between 2014 and 2016. Therefore, it cannot be inferred from the reference to events beginning or occurring in 2014 that the present case concerns the contracts of employment concluded beforehand, which conferred jurisdiction on the courts of Brussels.

38      As regards Eulex Kosovo’s arguments relating to the orders of 30 September 2014, Bitiqi and Others v Commission and Others (T‑410/13, not published, EU:T:2014:871), and of 9 November 2016, Jenkinson v Council and Others (T‑602/15, EU:T:2016:660), first the latter order has, in the meantime, been set aside by the judgment of 5 July 2018, Jenkinson v Council and Others (C‑43/17 P, EU:C:2018:531), in which the Court of Justice held, inter alia, that the jurisdiction of the General Court was capable of extending to earlier employment contracts conferring jurisdiction on the courts of Brussels on condition that the action brought contained claims arising under the final employment contract or which were directly connected with the obligations arising from that contract.

39      Secondly, the argument that Eulex Kosovo seeks to infer from the order of 30 September 2014, Bitiqi and Others v Commission and Others (T‑410/13, not published, EU:T:2014:871), appears to follow from a misreading of that order. Contrary to Eulex Kosovo’s submissions, that case did not concern the issue of the chain of contracts. In that case, the General Court was called upon, as in the present case, to rule on the legality of decisions relating to the non-renewal of the applicants’ final employment contracts. It was decided that the legal relationship forming the subject matter of the dispute formed part of a contractual context, but that the final employment contracts concerned did not contain any clause conferring on the General Court jurisdiction to hear disputes which might arise from its performance, so that the General Court declined jurisdiction.

40      As regards the argument that the applicant should have challenged the contested decisions, which are based inter alia on the OPLAN and the SOP, on the basis of Article 263 TFEU and not on that of Article 272 TFEU, it should be noted that neither the applicant nor Eulex Kosovo disputes that the 2016 internal competition was organised following the reduction in the number of prosecutor’s posts provided for in the 2016 deployment plan, in accordance with the rules laid down in the OPLAN and in the SOP relating to the reorganisation, which, according to Article 1.2 of the final employment contract, form an integral part of that contract.

41      Under Article 4.3 of the SOP relating to the reorganisation, which repeats the content indicated on page 16 of the OPLAN, in the event of a decrease in the number of posts with the same description, an internal competition is organised and the contracts in force of unsuccessful candidates are not renewed beyond their expiry date.

42      Consequently, it may be concluded that the contested decisions are directly connected with the obligations arising under the final employment contract, in the light, in particular, of Article 1.2 of that contract, on the one hand, and Article 4.3 of the SOP relating to the reorganisation, on the other hand, and that therefore it is not manifestly apparent that the present action falls outside the scope of the arbitration clause inserted in Article 21 of the final employment contract.

43      In the light of Article 4.3 of the SOP relating to the reorganisation, it must be held that the general decisions relating to the organisation of the internal competition and its consequences are implemented by individual decisions, such as the contested decisions, which means that the latter decisions form a direct part of the contractual relationship between the parties under the final employment contract.

44      Consequently, since the contested decisions are directly linked to the contractual employment relationship between the applicant and Eulex Kosovo, a head of claim whereby the applicant seeks a declaration that those decisions are unlawful therefore falls within the scope of Article 21 of the final employment contract, which, by way of reminder, provides that ‘disputes arising out of or relating to this contract shall be referred to the jurisdiction of the Court of Justice of the European Union pursuant to Article 272 [TFEU]’.

45      The General Court has, moreover, held in the past that it had jurisdiction, on the basis of Article 272 TFEU, to examine an action relating to the alleged breach of contractual obligations on account of non-compliance with the provisions of a document which, in itself, was not contractual in nature, but in respect of which it was stated, in the contract between the parties in question, that it formed an integral part of that contract (see, to that effect, judgment of 12 April 2018, PY v EUCAP Sahel Niger, T‑763/16, EU:T:2018:181, paragraph 66).

46      In that context, account must also be taken of the fact, first, that it was in particular because the applicant was linked to Eulex Kosovo by the final employment contract that she had been invited to take part in the 2016 internal competition and, secondly, as stated in paragraph 12 above, that the letter of 24 June 2016 informing her of the organisation of the 2016 internal competition expressly provided that a failure to participate in that competition or non-success would result in the expiry of the final employment contract, whereas a positive result in the competition would mean the renewal of that contract.

47      In the light of the foregoing, it must be held that the General Court does not manifestly lack jurisdiction to hear and determine the present action.

 Admissibility of the action

48      Eulex Kosovo also calls into question the admissibility of the action, invoking its obscuri libelli in so far as, first, the confusion arising from an alleged chain of contracts covering the applicant’s periods of employment between 4 January 2014 and 14 November 2016, comprising in fact two distinct jurisdiction clauses (first, the courts of Brussels and, subsequently, the Court of Justice of the European Union), did not enable it to organise its defence and, secondly, the applicant had failed to put forward in a sufficiently clear and precise manner the facts on which she had based her complaint alleging infringement of the obligation of impartiality on the part of the chairperson of the selection board of the 2016 internal competition.

49      In that regard, it should be noted that the objections of obscuri libelli raised by Eulex Kosovo are unfounded. Under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to proceedings before the General Court in accordance with the first paragraph of Article 53 thereof, and Article 76(d) of the Rules of Procedure of the General Court, all applications must contain the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law. It is settled case-law that that information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any further information. In order to guarantee legal certainty and the sound administration of justice, it is necessary, if an action is to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the text of the application itself (see judgment of 12 December 2019, Tàpias v Council, T‑527/16, EU:T:2019:856, paragraph 64 and the case-law cited).

50      As stated in paragraphs 35 to 37 above, there is no confusion arising from an alleged chain or series of employment contracts covering the applicant’s various periods of employment between 4 January 2014 and 14 November 2016, comprising in fact two distinct jurisdiction clauses. Accordingly, Eulex Kosovo was indeed in a position to understand the applicant’s arguments and to prepare its defence.

51      Furthermore, the application contains numerous references to the conduct of the selection procedure for the 2016 internal competition. Thus, the applicant sets out with sufficient precision, in particular in paragraphs 92 to 96 of the application, the facts alleged against Eulex Kosovo in connection with that procedure and the reasons why she considers that the chairperson of the selection board was not in a position to assess her performance impartially.

52      In the light of all those considerations, it must be held that the action is not manifestly inadmissible.

53      It is also for the General Court to ascertain whether, in the light of the application and its annexes, the applicant’s claims are not manifestly lacking any foundation in law.

 Substance

54      It should be noted as a preliminary point that, following the applicant’s statement, in the application seeking that the Court grant her the form of order sought under Article 123(1) of the Rules of Procedure, that she wishes to withdraw the fifth plea, the action is based on the remaining four pleas in law.

55      In the first plea, alleging failure by Eulex Kosovo to comply with its contractual obligations with regard to the procedural irregularities which allegedly took place during the 2016 internal competition, the applicant submits, in essence, that the Director of the human resources unit should have verified the composition of the selection board in the light of existing or potential conflicts of interest and should have envisaged changes if necessary. Furthermore, she claims that the composition of the selection board should have been communicated to her in advance, which would have enabled her to raise her objections in writing rather than being obliged to do so orally during the interview with the selection board.

56      In the second plea, alleging failure by Eulex Kosovo to comply with its contractual and non-contractual obligations with regard to a conflict of interests, a failure to withdraw and misuse of power on the part of the applicant’s direct supervisor, the applicant submits, in essence, that her direct supervisor clearly had a conflict of interests when he chaired the selection board during her interview and that he should have raised the issue of that conflict of interests with the human resources unit and requested to be replaced.

57      In the third plea, alleging failure by Eulex Kosovo to comply with its non-contractual obligations with regard to the lack of impartiality in the conduct of the internal competition and in the assessment of her application, the applicant submits that her direct supervisor was not in a position to assess her performance, given that he was actively involved in two previous actions in which she had been successful and that he had consistently shown a personal bias with respect to her, including during the interview.

58      In the fourth plea, alleging failure by Eulex Kosovo to comply with its contractual and non-contractual obligations with regard the driving test and the applicant’s disability, the applicant claims, in essence, that, although Eulex Kosovo was aware of the injury to her hand, of the physical limitation which it caused and the fact that her disability was recognised in her country of origin, she was harassed as regards the driving test, which caused her to suffer stress and anxiety.

59      Thus, the applicant claims that the contested decisions should be declared unlawful and that, as a result of Eulex Kosovo’s failure to comply with its contractual obligations, she suffered material damage equivalent to 19 months’ gross salary together with the daily subsistence allowance and the salary increase, corresponding to her loss of income during the period between the date of non-renewal of her contract and the expiry date of the mandate of the mission as it was extended following that competition, namely 14 June 2018. The non-material damage allegedly suffered as a result of Eulex Kosovo’s failure to comply with its non-contractual obligations is assessed by the applicant provisionally ex æquo et bono at EUR 50 000.

60      It is not apparent, simply from reading the background to the dispute referred to in paragraphs 2 to 17 above, corresponding to the description of the facts given by the applicant in the application and supported by the documents in the file, on the one hand, and the pleas and complaints put forward by the applicant and reiterated in paragraphs 55 to 58 above, on the other, that the action brought by the applicant is manifestly lacking any foundation in law.

61      As regards the first three pleas relating to the 2016 competition procedure, it is apparent from paragraphs 6, 9 and 10 above that the applicant’s direct supervisor had previously clearly expressed his opinion as to her professional incompetence, first, in the context of the 2014 evaluation report and, secondly, as a member of the selection board for the 2014 internal competition.

62      Furthermore, as stated in paragraphs 7 and 10 above, both the conclusions of the 2014 evaluation report and the lawfulness of the 2014 internal competition were called into question in the context of two earlier actions brought by the applicant, which led to the annulment of that report and that competition.

63      Given that it could not be ruled out that the applicant and her direct supervisor would continue to work together following the 2016 internal competition, all those circumstances may constitute a context which substantiates an apparent lack of impartiality, if not a conflict of interests on the part of the applicant’s direct supervisor, who chaired the selection board for the 2016 internal competition.

64      Consequently, it may be concluded that the first three pleas put forward by the applicant relating to an infringement by Eulex Kosovo of its obligations, as provided for in particular in Article 6 of the SOP relating to the reorganisation, to ensure that the 2016 internal competition was transparent and fair, are not manifestly lacking any foundation in law.

65      As regards the fourth plea, as is apparent from paragraph 11 above, Eulex Kosovo requested the applicant on several occasions during the years 2014 to 2016 to undergo a driving test, even after she had provided Eulex Kosovo with a document attesting to the disability affecting her right hand which prevented her from taking that test. Furthermore, it is apparent from the application form for the post of prosecutor in Eulex Kosovo that the applicant had stated that she held a driving licence, but that her right hand was affected by that disability.

66      All those circumstances could constitute evidence of conduct that could be characterised as abusive and occurring over a period and repetitively, which could undermine the personality, dignity or psychological balance of the applicant.

67      Consequently, it must be held that the fourth plea and the action in its entirety are not manifestly lacking any foundation in law.

68      It follows that, on the basis of Article 123 of the Rules of Procedure, it is appropriate to award the applicant judgment by default and to order Eulex Kosovo to pay her compensation in respect of the material damage suffered equivalent to 19 months’ gross salary, to which the daily subsistence allowance and the salary increase should be added, to correspond to the situation in which the final employment contract was renewed until 14 June 2018, together with compensation for the non-material damage suffered, assessed ex æquo et bono at EUR 50 000.

 Costs

69      In the judgment of 25 June 2020, SC v Eulex Kosovo (C‑730/18 P, EU:C:2020:505), the Court of Justice reserved the costs. It is therefore for the General Court to rule, in the present judgment, on all the costs relating to the various proceedings, in accordance with Article 219 of its Rules of Procedure. Under Article 134(1) of those 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. Since Eulex Kosovo has been unsuccessful, it must be ordered to pay the costs relating to the present proceedings and to the proceedings in Case C‑730/18 P and Case T‑242/17, in accordance with the form of order sought by the applicant.

On those grounds,

THE GENERAL COURT (First Chamber)

hereby:

1.      Orders Eulex Kosovo to pay SC compensation in respect of the material damage suffered, equivalent to 19 months’ gross salary, to which the daily subsistence allowance and the salary increase should be added, to correspond to the situation in which the final employment contract was renewed until 14 June 2018, together with compensation for the non-material damage suffered, assessed on ex æquo et bono  at EUR 50 000;

2.      Orders Eulex Kosovo to pay the costs relating to the present proceedings and to the proceedings in Case C730/18 P and Case T242/17.

Kanninen

Półtorak

Stancu

Delivered in open court in Luxembourg on 19 October 2022.

E. Coulon

 

M. van der Woude

Registrar

 

President


*      Language of the case: English.