KF v CSUE (Appeal - Institutional law = SatCen - Judgment) [2021] EUECJ C-464/20P (14 October 2021)

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(Appeal – Institutional law – Staff of the European Union Satellite Centre (SatCen) – Members of the contract staff – Manner in which the administrative investigation was carried out in respect of the applicant – Reopening of the investigation – Compliance with the judgment of the General Court of the European Union of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718) – Action for annulment and for damages)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 26 September 2020,

European Union Satellite Centre (SatCen), represented by A. Guillerme and T. Payan, avocates,

composed of L. Bay Larsen (Rapporteur), Vice-President of the Court, acting as President of the Sixth Chamber, N. Jääskinen and M. Safjan, Judges,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 By her appeal, KF seeks to have set aside the order of the General Court of the European Union of 10 July 2020, KF v SatCen (T‑619/19, not published, EU:T:2020:337; ‘the order under appeal’), by which the General Court dismissed her action seeking, first, annulment of the decision of the Director of the European Union Satellite Centre (SatCen) of 3 July 2019 to launch an investigation concerning her (‘the decision at issue’) and, second, compensation in respect of the harm which she claims to have suffered in particular as a result of that decision.

2 By Decision 2009/747/CFSP of 14 September 2009 concerning the Staff Regulations of the European Union Satellite Centre (OJ 2009 L 276, p. 1), the Council of the European Union adopted the SatCen Staff Regulations, Article 28 of which, entitled ‘Appeals’, provides, in paragraph 2 thereof:

‘Any person to whom these Staff Regulations apply may submit to the Director a complaint against an act adversely affecting him, either where the Director has taken a decision or where he has failed to adopt a measure prescribed by the Staff Regulations. The complaint must be lodged within three months. …’

3 The background to the dispute, set out by the General Court in paragraphs 1 to 8 of the order under appeal, may be summarised as follows.

4 KF was recruited by SatCen on 1 August 2009 as a member of the contract staff to occupy the post of Head of the Administrative Division, by means of two successive fixed-term contracts, the second of which ran until 31 July 2016.

5 On 8 March 2013, the Director of SatCen decided to launch an administrative investigation, which he entrusted to the Deputy Director of SatCen, into KF’s conduct. First, that decision followed a complaint addressed to the Director and the Deputy Director of SatCen on 14 November 2012 by 12 members of staff, denouncing KF’s conduct which, according to the complainants, constituted psychological harassment. Second, the decision to open an investigation concerning KF was taken on the ground that it was apparent from the results of a survey on well-being at work among SatCen staff that some staff members had stated that they had experienced psychological pressure from her and aggressive behaviour on her part over a long period.

6 Following the conclusions of the inquiry report, the Director of SatCen decided to initiate a disciplinary procedure against KF before the Disciplinary Board. At the end of that procedure, by decision of 28 February 2014, the Director of SatCen dismissed the applicant on disciplinary grounds (‘the dismissal decision’).

7 By judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), the General Court found that it had jurisdiction to hear the action for annulment of the dismissal decision brought by KF and upheld that action on the ground of the procedural irregularity in the administrative inquiry which had led to it. First, in paragraphs 189 to 207 of that judgment, the General Court held that the arrangements for that inquiry, which consisted in sending SatCen staff a ‘questionnaire on harassment’ personally identifying KF, were contrary to the principle of sound administration and, in particular, to the requirement of impartiality and the duty of care. Second, in paragraphs 208 to 224 of that judgment, the General Court held that SatCen had infringed KF’s right to be heard and her right of access to her file by drawing conclusions from the administrative inquiry concerning her without giving her the opportunity to put forward her point of view and to consult, in a timely manner, the documents relating to that inquiry.

8 Moreover, the General Court ordered SatCen to pay KF the sum of EUR 10 000 as compensation for the non-material harm suffered by her as a result of the irregularities in the administrative inquiry. On the other hand, the General Court dismissed as premature KF’s form of order seeking compensation for material harm corresponding to the amount of the remuneration to which she would have been entitled had she remained in her position at SatCen between the date of her dismissal from office and the date on which her employment contract ended. In particular, in paragraph 250 of the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), the General Court stated that, if it were not to prejudge the implementing measures taken by SatCen, it was not able to conclude that the annulment of the dismissal decision necessarily implied that KF was entitled to payment of the amounts that she claimed. The appeal brought against that judgment by SatCen was dismissed by the Court in the judgment of 25 June 2020, SatCen v KF (C‑14/19 P, EU:C:2020:492).

10 On 3 July 2019, the Director of SatCen notified KF of the decision at issue, taken for the purpose of implementing the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), consisting of the opening of a new administrative investigation against her. As stated in its grounds, that decision is based on the elements referred to in paragraph 5 of the present judgment, which had also formed the basis of the first administrative investigation giving rise to the dismissal decision annulled by the General Court in that judgment.

11 On 17 July 2019, KF, on the basis of Article 28(2) of the SatCen Staff Regulations, submitted a complaint to the Director of SatCen against the decision at issue. That complaint was rejected by express decision on 2 August 2019 on the ground, principally, that it was inadmissible in so far as it was directed against an act which did not adversely affect her and, in the alternative, that it was unfounded.

12 By application lodged at the General Court Registry on 17 September 2019, KF brought an action seeking, first, annulment of the decision at issue and of the decision rejecting the complaint brought against that decision, second, an order that SatCen pay her, pursuant to the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), ‘full and fair’ compensation for the material harm suffered, third, an order that SatCen pay her the sum of EUR 30 000 in respect of the ‘material and non-material’ harm caused by the decision at issue and, fourth, an order that SatCen pay her ‘interest on the unjustified late payment’ of the sum of EUR 10 000 awarded by the General Court as compensation for the material harm suffered.

13 By the order under appeal, the General Court dismissed the action as manifestly inadmissible and, as regards the second head of claim, as also manifestly lacking any foundation in law.

– set aside the order under appeal and uphold the action brought before the General Court with the exception of the fourth head of claim, namely the payment of interest on account of late payment of the compensation for the non-material harm suffered; and

– order SatCen to pay the costs both of the proceedings before the General Court and of the appeal proceedings.

15 SatCen contends that the Court should dismiss the appeal and order KF to pay the costs.

17 By her first ground of appeal, KF complains that the General Court erred in law in holding that the decision at issue was a preparatory act not adversely affecting her, when it was in fact a decision not to implement properly the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), contrary to the provisions of Article 266 TFEU.

18 By her second ground of appeal, KF complains that the General Court erred in finding, first, a lack of clarity and substance as regards her claim that SatCen should be ordered to pay her, pursuant to the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), ‘full and fair’ compensation for the material harm suffered and, second, that it was not stated in that judgment that it posed special compliance difficulties which could give rise to a legitimate expectation on her part that she would be fairly compensated.

19 The third ground of appeal alleges infringement of Article 268 TFEU and of the second paragraph of Article 340 TFEU in that the General Court erred in law in declaring inadmissible KF’s claim that SatCen should be ordered to pay her compensation for the harm arising from the adoption of the decision at issue.

20 KF claims that the General Court erred in law in holding that the decision at issue was a preparatory act which did not adversely affect her and that, consequently, claims directed against such a decision were manifestly inadmissible. It is in fact a decision not to implement properly the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), and, consequently, such a decision directly and immediately affected KF’s interests.

21 In the order under appeal, the General Court failed to recognise that KF has no second opportunity to obtain, in the context of the new administrative investigation, a favourable and fair outcome, since the irregularities established by the General Court in the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), are irreversible.

22 In short, the General Court did not take into account the fact that the procedural irregularities in the first administrative investigation, established by the General Court in the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), and their effects cannot be reversed by a new administrative investigation.

23 Moreover, the General Court failed to take into account the reasonable time principle, even though the contested decision was adopted six years after the closure of the unlawful administrative investigation opened against KF in 2013. In the specific circumstances of the present case, that omission confirms that the decision at issue is tantamount to a decision to comply with the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), inappropriately, in infringement of Article 266 TFEU.

24 SatCen disputes KF’s arguments and contends that the first ground of appeal should be rejected.

25 Paragraphs 44 and 45 of the order under appeal, on which KF’s complaints are centred, are reproduced below:

‘44 … the purpose of the administrative investigations … is to determine the facts alleged against the person concerned and the circumstances surrounding them and to enable the Director of SatCen to assess prima facie the accuracy and seriousness of those facts in order to form an opinion as to whether disciplinary proceedings should be initiated.

45. Consequently, the decision [at issue], taken in compliance with the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), does not contain any element of decision stipulating the position of the Director of SatCen at the end of those investigations which would prejudge his position as regards the applicant (see, by analogy, judgment of 15 July 1993, Camara Alloisio and Others v Commission, T‑17/90, T‑28/91 and T‑17/92, EU:T:1993:69, paragraphs 40 to 42, and order of 26 June 2018, Kerstens v Commission, T‑757/17, not published, EU:T:2018:391, paragraphs 32 and 33). Accordingly, the decision [at issue] must be regarded as a preparatory act, such that claims directed against such a decision are manifestly inadmissible (see, by analogy, order of 18 December 2003, Gómez-Reino v Commission, T‑215/02, EU:T:2003:352, paragraphs 50 and 54).’

26 According to settled case-law, an applicant is adversely affected only by measures which produce binding legal effects such as to affect his or her interests by bringing about a distinct change in his or her legal position and only those measures may be the subject of an action for annulment (see, to that effect, judgments of 14 September 2006, Commission v Fernández Gómez, C‑417/05 P, EU:C:2006:582, paragraph 42; of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 44; and of 25 June 2020, SatCen v KF, C‑14/19 P, EU:C:2020:492, paragraph 69).

27 The preparatory measures which, for the party concerned, are constituted by the opening and conducting of an internal investigation, may not be the subject of a separate action, different from that which that party is entitled to bring against the authority’s final decision. Indeed, neither the existence, even if established, of infringements of the rights of the defence nor the fact that internal investigations are conducted show in themselves that a measure having an adverse effect, that is to say a measure open to appeal, has been adopted (see, to that effect, order of the President of the Court of 8 April 2003, Gómez-Reino v Commission, C‑471/02 P(R), EU:C:2003:210, paragraph 65).

28 As regards KF’s argument that a new administrative investigation is bound to be vitiated by the same irregularities as those found by the General Court in the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), and results, in essence, in incorrect compliance with that judgment, it must be stated that it relates to the substance of the case and not to the admissibility of the action before the General Court and can, if appropriate, be relied on only against the final decision of the administration.

29 As regards the alleged breach of the reasonable time principle in the administrative procedure, it is not necessary in the present case to rule on the question whether and, if so, under what circumstances a breach of the principle that decisions are to be adopted within a reasonable time can be established, after a comprehensive assessment, on the basis of the total duration of an administrative procedure and judicial proceedings (see, to that effect, judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 229).

30 Even assuming that the consideration of a plea alleging infringement of the reasonable period principle requires not only a separate examination of each procedural stage but also a comprehensive assessment of the administrative procedure and any judicial proceedings as a whole, the fact that the new investigation was opened six years after the first investigation cannot, in the present case, result in the finding that the administrative procedure is vitiated by a defect relating to breach of the reasonable time period, when, from 28 May 2015, the date of lodging of the application in Case T‑286/15, to 25 June 2020, the date of delivery of the judgment in SatCen v KF (C‑14/19 P, EU:C:2020:492), which dismissed the appeal brought against the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), the General Court examined the legality of the decisions taken by SatCen following the opening of the first investigation and the Court of Justice, next, examined the validity of the judgment of the General Court delivered at the end of that examination of legality; moreover, the duration of those judicial proceedings raise no concerns.

31 In those circumstances, the first ground of appeal must be rejected as unfounded.

32 KF claims that the General Court erred in law in finding, in paragraph 58 of the order under appeal, that the second head of claim, by which she requested that SatCen be ordered to pay her, pursuant to the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), ‘full and equitable’ compensation for the material harm suffered, did not satisfy the requirements of clarity laid down in Article 76(d) of the Rules of Procedure of the General Court and that, therefore, it should be dismissed as manifestly inadmissible.

33 KF also claims that the General Court made two other errors of law, first, in that it held, in paragraph 59 of the order under appeal, that the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), did not entail payment of a sum by way of compensation for the harm suffered as a result of the irregularities found, the amount of which remained to be determined, and, second, by noting, in paragraph 61 of the order under appeal, that it was not stated, in that judgment, that compliance with it posed special difficulties, although based on the latter, she could legitimately have thought that, in the General Court’s view, that judgment, since it annulled three decisions on account of several irregularities, would present special compliance difficulties and, consequently, she would be fairly compensated.

34 SatCen contends that, contrary to KF’s claims, the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), cannot be understood as implying that she was entitled to financial compensation and contends that the second ground of appeal should be rejected.

‘59. In any event, in so far as the applicant submits that compliance with the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718) meant that SatCen should compensate her for material harm, the amount of which remains to be determined, such a premiss is based on a manifestly incorrect reading of that judgment.

60. In that regard, in paragraphs 250 to 254 of the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), the General Court rejected as premature the form of order sought by the applicant seeking compensation for material harm corresponding to the amount of the remuneration which she would have received had she remained in service with SatCen between the effective date of the dismissal decision and the date of the end of her contract, on the ground that it was not in a position to conclude, without knowing the measures taken to implement that judgment, that the annulment of the dismissal decision necessarily entailed the applicant’s right to receive such a sum.

61. Although the General Court stated, in paragraph 253 of the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), that, when compliance with a judgment annulling a measure poses special difficulties, the institution concerned may establish a dialogue with that person with a view to seeking to reach an agreement offering him or her fair compensation for the illegality of which he or she was a victim, it did not recognise that that was the case here.’

36 As regards the complaint alleging that the General Court erred in law in finding that the second head of claim, recalled in paragraph 32 of the present judgment, had to be rejected as inadmissible, it must be borne in mind that it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, and from Article 168(1)(d) and Article 169 of the Rules of Procedure of the Court of Justice, that an appeal must indicate precisely the contested elements of the judgment or order which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (judgment of 6 May 2021, Gollnisch v Parliament, C‑122/20 P, not published, EU:C:2021:370, paragraph 45).

37 The fact remains that KF has not set out the legal arguments in support of her complaint. That complaint is therefore inadmissible.

38 As regards the alleged error of law made in paragraph 59 of the order under appeal, it does not appear that the General Court erred in law in finding that it did not follow from the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), that SatCen must compensate KF for material harm linked to the dismissal decision annulled by that judgment.

39 According to paragraph 250 of the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), while it is true that, by that judgment, the General Court annulled the dismissal decision, by which KF’s contract had been terminated, the fact remains that, in accordance with Article 266 TFEU, it is for SatCen to take the measures necessary to comply with that judgment.

40 In paragraph 250 of that judgment, the General Court also held that, if it was not to prejudge those implementing measures, it was not able to conclude that the annulment of the dismissal decision necessarily implies that the applicant is entitled to payment of the amounts that she claimed, so that the claim for compensation should, in that regard, be rejected as premature.

41 As regards the alleged error of law made by the General Court in paragraph 61 of the order under appeal, it does not appear to be established either.

42 In that regard, it should be recalled that, in paragraph 253 of the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), the General Court stated that, when compliance with a judgment annulling a measure poses special difficulties, the institution concerned may take any decision which is such as to compensate fairly for the disadvantage resulting for the person concerned from the annulled decision and may, in that context, establish a dialogue with that person with a view to seeking to reach an agreement offering him or her fair compensation for the illegality of which he or she was a victim.

43 However, as the General Court rightly found in paragraph 61 of the order under appeal, it was not recognised, in paragraph 253 of that judgment, that that was the case here.

44 In those circumstances, KF was not justified in having any legitimate expectation that she was entitled to compensation in relation to the annulled dismissal decision.

45 In the light of the foregoing considerations, the second ground of appeal must be rejected as inadmissible in part and unfounded in part.

46 By her third ground of appeal, KF submits that, in paragraphs 47 to 50 of the order under appeal, the General Court wrongly concluded that the action for compensation for the harm suffered as a result of the decision at issue, brought in accordance with the second paragraph of Article 340 TFEU, was inadmissible. KF claims that she brought an action for annulment under Article 263 TFEU not against a decision ordering that the administrative investigation be restarted, but against a decision not to implement properly the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), and that action is admissible. Consequently, the action for damages brought under Article 340 TFEU is also admissible.

48 According to the case-law of the Court, as regards an action for damages, where an official, pursuant to Article 270 TFEU, brings proceedings seeking the annulment of the act of an institution and the award of compensation for the harm he or she suffered as a result of that act, the claims are so closely connected to one another that the inadmissibility of the action for annulment entails the inadmissibility of the claim for damages (see, to that effect, judgments of 16 July 1981, Albini v Council and Commission, 33/80, EU:C:1981:186, paragraph 18, and of 14 February 1989, Bossi v Commission, 346/87, EU:C:1989:59, paragraph 31).

49 Since, first, a dispute between a servantor former servant of SatCen and the latter, concerning an application for annulment, under Article 263 TFEU, of an act of SatCen and a claim for compensation, under Article 268 TFEU, for harm suffered as a result of the adoption of that act, and, second, disputes of a same nature between servants of the Union and their employer, are comparable (see, to that effect, judgment of 25 June 2020, SatCen v KF, C‑14/19 P, EU:C:2020:492, paragraph 94), the case-law cited in the preceding paragraph of this judgment is applicable to a situation such as that in the present case.

50 Although KF claims that she has brought an action for annulment under Article 263 TFEU, not against the decision at issue, which constitutes a decision to open a new administrative investigation, but against a decision not to implement properly the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), and that such an action is, therefore, admissible, it is important to note that, not only has she not challenged paragraph 14 of the order under appeal, which states that she seeks in the first and third heads of claim, respectively, annulment of the decision at issue, which is a decision to launch an investigation, and an order that SatCen pay her the sum of EUR 30 000 in respect of the ‘material and non-material’ harm caused by that decision, she has also not relied on any distortion of the facts by the Court or adduced any evidence in support of her argument.

51 In any event, even if KF had brought an action against a decision seeking not to comply properly with the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), it follows from paragraph 28 of the present judgment that an action brought in this way is, in the present case, inadmissible.

52 In the light of the foregoing considerations, as well as paragraph 27 of the present judgment and the rejection of the first ground of appeal, it must be noted that, since the claim for compensation at issue in the present case is, in any event, closely connected to an inadmissible application for annulment, the General Court rightly held, in paragraph 50 of the order under appeal, that the third head of claim also had to be dismissed as manifestly inadmissible.

54 Having regard to all the foregoing considerations, the appeal must be dismissed.

55 Under Article 138(1) of the Rules of Procedure of the Court, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

56 Since SatCen has applied for costs and KF has been unsuccessful, the latter must be ordered to pay the costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> KF v CSUE (Appeal - Institutional law = SatCen - Judgment) [2021] EUECJ C-464/20P (14 October 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/C46420P.html Cite as: [2021] EUECJ C-464/20P, ECLI:EU:C:2021:848, EU:C:2021:848

Court of Justice of the European Communities (including Court of First Instance Decisions)