ORDER OF THE COURT (Ninth Chamber)
11 April 2024 (*)
(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Civil service – Member of the temporary staff of EUIPO – Non-renewal of contract – Action for annulment and for damages – Appeal manifestly unfounded)
In Case C‑528/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 17 August 2023,
European Union Intellectual Property Office (EUIPO), represented by E. Lekan and A. Lukošiūtė, acting as Agents,
appellant,
the other party to the proceedings being:
KD,
applicant at first instance,
THE COURT (Ninth Chamber),
composed of O. Spineanu-Matei, President of the Chamber, J.-C. Bonichot (Rapporteur) and L.S. Rossi, Judges,
Advocate General: M. Campos Sánchez-Bordona,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1 By its appeal, the European Union Intellectual Property Office (EUIPO) asks the Court of Justice to set aside the judgment of the General Court of the European Union of 7 June 2023, KD v EUIPO (T‑650/20, EU:T:2023:305; ‘the judgment under appeal’), by which the General Court, first, upheld KD’s action for annulment of EUIPO’s decision of 1 April 2020 not to renew her contract (‘the decision at issue’) and, secondly, dismissed her claim for compensation in respect of the non-material damage she claimed to have suffered.
Background to the dispute and the judgment under appeal
2 The background to the dispute was set out by the General Court in paragraphs 2 to 13 of the judgment under appeal as follows:
‘2 On 16 July 2015, the [applicant at first instance] joined EUIPO as a member of the temporary staff for a five-year period, under Article 2(f) of the Conditions of Employment of Other Servants of the European Union (“the CEOS”). She was assigned to the “Academy” Department of EUIPO.
3 On 15 February 2016, the [applicant at first instance] was appointed as a team leader.
4 From 2015 onwards, the [applicant at first instance] experienced difficulties related to her personal life and health problems. …
5 On 5 February 2020, a formal dialogue was held between the [applicant at first instance], the Director of the “Academy” Department and an official from the Human Resources Department of EUIPO. In the course of that meeting the [applicant at first instance] was informed that “considering the irregular performance over the duration of the contract, the results expected from the grade and the issues related with the respect of the rules and processes on working time and … for certain periods of the contract, there [were] doubts about the regularity of the level of the performance, reliability and resilience in case the contract is prolonged for 5 additional years”. In the light of those weaknesses and of the [applicant at first instance]’s appraisal reports, the “Academy” Department of EUIPO “[did] not feel comfortable in recommending the renewal” of the [applicant at first instance]’s contract to the Authority Authorised to Conclude Contracts (“the AACC”).
6 On 7 February 2020, the Director of the Human Resources Department of EUIPO, in her capacity as AACC informed the [applicant at first instance] of her department’s recommendation not to renew her contract and invited her to submit her comments on this matter by 21 February 2020 at the latest.
7 By email of 21 February 2020, the [applicant at first instance] submitted comments to the Director of the Human Resources Department in which she asked her to “reconsider [her] case and proceed to the renewal of [her] contract”. She invited the AACC “to refer to the appraisal reports [for the] 2015 to 2018 [exercises], which have to be thoroughly and objectively examined and taken into consideration, prior to adopting the decision regarding the renewal of [her] contract”. She noted that her appraisal report for 2019 was not finalised until 1 March 2019 but that she had received very positive comments during her appraisal dialogue. By not taking into account that report, the Director of the department did not take into account all the factual circumstances in order properly to assess her case and to make a recommendation as to the renewal of her contract.
8 On 11 March 2020, the [applicant at first instance] received her appraisal report for 2019 (“the 2019 appraisal report”).
9 On 1 April 2020, the Director of the Human Resources Department, acting as AACC, notified the [applicant at first instance] of the [decision at issue]. In that decision, the Director of the Human Resources Department stated that she was aware of the 2019 appraisal report.
10 On 22 May 2020, the [applicant at first instance] brought an action before the Court seeking, first, annulment of the 2019 appraisal report and, secondly, compensation in respect of non-material damage that she had suffered as a consequence of that report. That action was registered under reference T‑298/20.
11 On 25 May 2020, the [applicant at first instance] lodged a complaint against the [decision at issue] under Article 90(2) of the Staff Regulations of Officials of the European Union (“the Staff Regulations”).
12 By email of 10 June 2020, the [applicant at first instance] indicated that she was lodging a complementary request, under Article 90(1) of the Staff Regulations, asking the AACC to consider the possibility of postponing the application of the [decision at issue] or extending her contract until a final decision was taken. The Executive Director of EUIPO classified that request as complementary to the complaint of 25 May 2020.
13 On 15 July 2020, the Executive Director of EUIPO adopted a decision rejecting the [applicant at first instance]’s complaint …’
3 By application lodged at the Registry of the General Court on 23 October 2020, KD brought an action seeking the annulment of the decision at issue and compensation in respect of the non-material damage she claimed to have suffered.
4 By the judgment under appeal, the General Court, first, annulled the decision at issue, upholding the complaint that KD had been deprived of the opportunity to be heard in relation to the 2019 appraisal report prior to the adoption of that decision, even though EUIPO had taken that report into consideration when that decision was adopted. Indeed, the formal dialogue concerning the recommendation not to renew KD’s contract took place before KD received the 2019 appraisal report.
5 Secondly, the General Court rejected KD’s claim for compensation on the ground that she had not sufficiently explained why the non-material damage she claimed to have suffered could not be repaired in full by the annulment of the decision at issue.
Form of order sought by the appellant before the Court of Justice
6 By its appeal, EUIPO claims that the Court should:
– set aside the judgment under appeal;
– dismiss the action for annulment as unfounded or, should the Court of Justice find itself unable to take a final decision, refer the case back to the General Court; and
– order KD to pay the costs.
The appeal
7 Under Article 181 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.
8 It is appropriate to apply that provision in the present case.
9 In support of its appeal, EUIPO raises two grounds of appeal, alleging, first, an error of law in the interpretation of the scope of the right to be heard and the consequences flowing therefrom, and, secondly, a breach by the General Court of its duty to state reasons.
The first ground of appeal
10 The first ground of appeal comprises two complaints.
11 The first complaint of the first ground of appeal alleges that, in paragraphs 64 to 74 of the judgment under appeal, the General Court misinterpreted the right to be heard in civil service matters, which, according to EUIPO, does not include the right of a staff member to be afforded the opportunity to make known his or her views on the positive elements taken into consideration in the adoption of the decision not to renew his or her contract. EUIPO therefore argues that KD cannot properly rely on the right to be heard in relation to the 2019 appraisal report, since that report was an element in her favour, and states that she was, by contrast, heard on the negative elements which justified the non-renewal of her contract.
12 As a preliminary point, it should be recalled that Article 41(2)(a) of the Charter of Fundamental Rights of the European Union provides that the right to good administration includes, inter alia, the right of every person to be heard, before any individual measure which would affect him or her adversely is taken (judgment of 21 October 2021, Parliament v UZ, C‑894/19 P, EU:C:2021:863, paragraph 88).
13 In the present case, the decision at issue, by which EUIPO did not renew KD’s contract, constitutes an individual measure taken against her and which affects her adversely, for the purposes of Article 41(2) of the Charter of Fundamental Rights.
14 The right to be heard pursues a twofold objective. First, to enable the case to be examined and the facts to be established in as precise and correct a manner as possible, and, secondly, to ensure that the person concerned is in fact protected. The right to be heard is intended, inter alia, to guarantee that any decision adversely affecting a person is adopted in full knowledge of the facts, and its purpose is to enable the competent authority to correct an error or to enable the person concerned to submit such information relating to his or her personal circumstances as will argue in favour of the adoption or non-adoption of the decision, or in favour of its having a specific content (judgments of 4 June 2020, EEAS v De Loecker, C‑187/19 P, EU:C:2020:444, paragraph 69, and of 21 October 2021, Parliament v UZ, C‑894/19 P, EU:C:2021:863, paragraph 90).
15 Thus, the right to be heard cannot be interpreted as meaning that the person concerned may rely on it only in respect of the negative elements underpinning the decision adversely affecting him or her, and not in respect of elements favourable to him or her. That right encompasses all the relevant elements which must be taken into account by the body responsible for adopting such a decision, including, where appropriate, relevant elements relating to the personal situation of the person subject to it.
16 It would, moreover, be clearly contrary to the purpose of the right to be heard – which is, in particular, to ensure that the holder of that right is in fact protected – if that right did not include the right of the holder to put forward, against a draft decision liable to affect him or her adversely, elements militating in his or her favour.
17 Consequently, the General Court clearly did not err in holding that the scope of the right to be heard also covers the obligation to hear KD on the 2019 appraisal report, in so far as that report contains facts which may be taken into account in the context of the proposed adoption of a decision not to renew her contract.
18 By the second complaint of its first ground of appeal, EUIPO submits that the General Court misinterpreted the case-law on the conclusions to be drawn from an infringement of the right to be heard.
19 In accordance with that case-law, which the General Court considered in paragraphs 67 to 69 of the judgment under appeal, EUIPO submits that the applicant before that court cannot merely plead, in an abstract fashion, infringement of the right to be heard. It is for that person to show that it cannot be totally ruled out that the contested decision might have been different in content if the administration had afforded him or her the opportunity to put forward all the relevant facts (see, to that effect, judgment of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 112).
20 In the present case, EUIPO argues that the General Court was wrong to find that KD had discharged the burden of proof incumbent upon her even though, as the General Court moreover acknowledged, she had not identified precisely the arguments and factors which she could have put forward if she had been given a proper hearing or explained how they could have led, in her case, to a different outcome.
21 It should be observed, however, that the General Court found, in paragraphs 71 and 72 of the judgment under appeal, that KD had not had the opportunity to provide those details, since, first, the decision at issue did not contain any indication as to the way in which the administration had taken the 2019 appraisal report into account and, secondly, the context in which that decision was adopted did not serve to compensate for that lack of indication. If KD was unaware of how that report had been taken into account by the authority competent to take the decision at issue, she cannot be criticised for not having precisely identified the elements of that report which she could have put forward in order to have the competent authority take, where appropriate, another decision.
22 It follows that the General Court did not disregard the case-law cited in paragraph 19 above and that its reasoning was not vitiated by an error of law.
23 It follows from the foregoing that the first ground of appeal must be rejected as manifestly unfounded.
The second ground of appeal
24 By the second ground of appeal, EUIPO complains that, in paragraphs 70 to 73 of the judgment under appeal, the General Court breached its duty to state reasons, in so far as it did not explain why it could not be totally ruled out that the decision at issue would have been different in content if EUIPO had allowed KD to make known her views on the 2019 appraisal report. EUIPO submits that such a conclusion is incomprehensible given that the General Court acknowledged that KD had not indicated precisely the arguments which she could have put forward if she had been given a proper hearing.
25 However, it must be stated that, as is apparent from paragraph 21 above, the General Court set out, in paragraphs 71 and 72 of the judgment under appeal, the reasons why it could not be totally ruled out that the decision at issue might have been different in content if EUIPO had allowed KD to make known her views on the facts contained in the 2019 appraisal report.
26 Consequently, the second ground of appeal is manifestly unfounded.
27 It follows that, pursuant to Article 181 of the Rules of Procedure, the action must be dismissed in its entirety as manifestly unfounded.
Costs
28 Under Article 137 of the Rules of Procedure, applicable to proceedings on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings.
29 Since the present order was adopted before the appeal was served on the other party to the proceedings and, therefore, before it could have incurred costs, it is appropriate to decide that EUIPO is to bear its own costs.
On those grounds, the Court (Ninth Chamber) hereby orders:
1. The appeal is dismissed.
2. The European Union Intellectual Property Office (EUIPO) shall bear its own costs.
Luxembourg, 11 April 2024.
A. Calot Escobar | | O. Spineanu-Matei |
Registrar | | President of the Chamber |