Case T‑334/21
Ana Carla Mendes de Almeida
v
Council of the European Union
Order of the General Court (First Chamber), 13 June 2022
(Civil service – Appointment of the European Prosecutors of the European Public Prosecutor’s Office – Appointment of one of the candidates nominated by Portugal – No dispute between the Union and one of its servants within the limits and under the conditions laid down in the Staff Regulations and the CEOS – Article 270 TFEU – Manifest lack of jurisdiction)
Actions brought by officials – Jurisdiction of the EU judicature – Action by a candidate for a post subject to the conditions of appointment of the Staff Regulations or the Conditions of Employment of Other Servants – Admissibility – Action by a candidate for a European Prosecutor position – Lack of jurisdiction
(Art. 270 TFEU; Staff Regulations of Officials, Art. 27; Conditions of Employment of Other Servants, Art. 2(a); Council Regulation 2017/1939, Arts 2(4), 12, 16, and 96(1))
(see paragraphs 32-45, 54-58)
Résumé
On 12 October 2017, the Council of the European Union adopted Regulation 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’). (1) That regulation establishes the EPPO as a body of the European Union and sets out rules concerning its functioning.
Article 16(1) of Regulation 2017/1939 provides that each Member State participating in that enhanced cooperation must nominate three candidates for the position of European Prosecutor. Article 16(2) of that regulation states that, after having received the reasoned opinion of the selection panel (2) responsible for drawing up a shortlist of candidates, the Council is to select and appoint one of the candidates to be the European Prosecutor of the Member State in question. That provision also states that, if the selection panel finds that a candidate does not fulfil the conditions required for the performance of the duties of a European Prosecutor, its opinion is binding on the Council. Under Article 16(3) of that regulation, the Council, acting by simple majority, is to select and appoint the European Prosecutors for a non-renewable term of six years and may decide to extend the mandate for a maximum of three years at the end of the six-year period.
Article 96(1) of Regulation 2017/1939 provides that the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) apply, inter alia, to the European Prosecutors ‘unless otherwise provided for in this Regulation’.
On 23 April 2019, at the end of the national selection procedure, the three candidates for the position of European Prosecutor hoping to be nominated by the Portuguese Republic were successful. The applicant, Ms Ana Carla Mendes de Almeida, was one of those candidates. The names of those three candidates, listed in alphabetical order, were communicated to the selection panel.
On 18 November 2019, after hearing those candidates, the selection panel sent its reasoned opinion to the Council and gave an order of preference concerning them, that is to say, the applicant, followed by the other two candidates.
On 27 July 2020, the Council adopted Implementing Decision 2020/1117 (3) appointing the European Prosecutors of the EPPO, and in particular Mr Moreira Alves d’Oliveira Guerra, from 29 July 2020 (‘the contested decision’).
On 22 October 2020, the applicant submitted a complaint to the Council, pursuant to Article 90 of the Staff Regulations, against the contested decision. By decision of 8 March 2021 (‘the decision rejecting the complaint’), the appointing authority of the Council (‘the appointing authority’) considered that complaint to be manifestly inadmissible based on its lack of competence to uphold it.
The applicant then brought an action under Article 270 TFEU seeking the annulment of the contested decision, in so far as it appoints Mr Moreira Alves d’Oliveira Guerra as a European Prosecutor of the EPPO and rejects her application for that position, and of the decision rejecting the complaint.
The General Court dismisses the action and provides clarification concerning the legal basis on which an action concerning the appointment of European Prosecutors must be brought, namely Article 263 TFEU, and not Article 270 TFEU. Article 270 TFEU creates a legal remedy for civil service disputes which is distinct from general legal remedies such as an action for annulment governed by Article 263 TFEU.
Findings of the Court
The Court states, first of all, that it follows from the wording of Article 270 TFEU that the jurisdiction provided for therein extends to any dispute between the Union and its servants within the limits and under the conditions laid down in the Staff Regulations and the CEOS.
The Court goes on to point out that the notion of dispute between the Union and its servants has been given a wide definition by the case-law, with the result that disputes concerning persons who have the status neither of officials nor of employees, but who claim that status, are also examined within that framework. This applies to persons who are candidates for a post for which the conditions of appointment are laid down in the Staff Regulations or the CEOS.
The Court observes next that, concerning the EPPO, not all provisions of the Staff Regulations are applicable to it per se. As regards European Prosecutors, only their pay and employment conditions fall within the scope of the CEOS and within the competence of the EPPO’s Authority Empowered to Conclude Contracts of Employment. The situation is different for the conditions and procedures leading to their appointment.
As those conditions and procedures are not laid down in the Staff Regulations or in the CEOS but in Article 16 of Regulation 2017/1939, which, in that regard, lays down a specific procedure with special rules, the disputes that relate to those conditions and procedures cannot be regarded as disputes between the Union and one of its servants for the purposes of Article 270 TFEU. The Court, therefore, manifestly lacks jurisdiction to hear and determine the present action against the decision to appoint a European Prosecutor on the basis of Article 270 TFEU.
Moreover, since the contested decision is not a decision falling within the Staff Regulations and the CEOS, it cannot be considered that the complaint made by the applicant against it and the decision taken by the Council to reject that complaint may fall within the scope of the Staff Regulations and the CEOS. The Court therefore also manifestly lacks jurisdiction to hear and determine the decision rejecting the complaint.
It is for the applicant to choose the legal basis of its action and not for the EU judicature itself to choose the most appropriate legal basis. It is not possible to regard the present action as having been brought on the basis of Article 263 TFEU, since the applicant has expressly invoked Article 270 TFEU.
As regards the decision rejecting the complaint, in any event and assuming the applicant intended to bring her action against that decision under Article 263 TFEU, the Court finds, inter alia, for the same reasons, that the appointing authority was not competent to hear and determine the complaint against the appointment decision lodged by the applicant on the basis of Article 90 of the Staff Regulations. It was therefore right to reject that complaint and the action is therefore, in any event, manifestly unfounded in that regard.