Corte di giustizia UE/2018

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 20 June 2018 ( * ) (Civil service — [OSCURATO:PERSONA] — Termination of the contract — Lis pendens — Inadmissibility) [OSCURATO:PERSONA] T‑156/17, L, represented by I. [OSCURATO:PERSONA], lawyer, applicant, v [OSCURATO:PERSONA], represented by Í. [OSCURATO:PERSONA] and M. Windisch, acting as Agents, defendant, APPLICATION under [OSCURATO:PERSONA] 270 TFEU seeking annulment of the decision of the [OSCURATO:PERSONA] of 24 June 2016 terminating the applicant’s contract of employment as an [OSCURATO:PERSONA], [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of S. [OSCURATO:PERSONA], [OSCURATO:PERSONA], L. Madise (Rapporteur), and R. da [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA]: E. Coulon, makes the following [OSCURATO:PERSONA] to the dispute 1 On 22 May 2014 the applicant, L, was recruited by the [OSCURATO:PERSONA] at the request of Mr W., a Member of the [OSCURATO:PERSONA] (‘the MEP’). The applicant was employed as an [OSCURATO:PERSONA] to that MEP under a contract covering the years 2014 to 2019. 2 On 29 February 2016 the MEP submitted a written request to the [OSCURATO:PERSONA]’s authority empowered to conclude contracts of employment for termination of the applicant’s [OSCURATO:PERSONA] contract. 3 On 31 May 2016 the conciliation procedure provided for in [OSCURATO:PERSONA] 139(3a) of the Conditions of Employment of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] was launched. 4 On 24 June 2016 the applicant was notified of the decision terminating his contract (‘the dismissal decision’). 5 On 19 September 2016 the applicant lodged a complaint under [OSCURATO:PERSONA] 90(2) of the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA], applicable to contract staff by virtue of the reference to Title VII thereof which appears in [OSCURATO:PERSONA] 117 of the Conditions of Employment of [OSCURATO:PERSONA], against the dismissal decision. 6 Since the administrative authorities did not reply to that complaint before the end of a four-month period, an implied decision rejecting the applicant’s complaint was made on 19 January 2017, pursuant to the second subparagraph of [OSCURATO:PERSONA] 90(2) of the [OSCURATO:PERSONA]. 7 On 24 January 2017 the applicant submitted an application for legal aid under [OSCURATO:PERSONA] 147 of the Rules of Procedure of the [OSCURATO:PERSONA] with a view to bringing an action for annulment of the dismissal decision. The case was registered as [OSCURATO:PERSONA] T‑59/17 AJ. 8 On the same day, the Secretary-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] adopted an express decision rejecting the applicant’s complaint of 19 September 2016. 9 On 21 February 2017 the applicant submitted a new application for legal aid with a view to bringing an action against the express decision rejecting the complaint of 19 September 2016. The case was registered as [OSCURATO:PERSONA] T‑156/17 AJ. 10 By application lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 14 April 2017, the applicant brought an action for annulment of the dismissal decision. The action was registered as [OSCURATO:PERSONA] T‑59/17. 11 By order of 30 May 2017 (T‑156/17 AJ), the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] granted the applicant legal aid. 12 By contrast, by order of 5 September 2017, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] dismissed the application for legal aid in [OSCURATO:PERSONA] T‑59/17 AJ. Procedure and forms of order sought 13 By document lodged at the [OSCURATO:PERSONA] on 11 September 2017, the applicant brought the present action. 14 The applicant claims that the [OSCURATO:PERSONA] should: –        join [OSCURATO:PERSONA] T‑59/17 and the present case; –        annul the dismissal decision; –        order the [OSCURATO:PERSONA] to pay him EUR 100 000 for the non-material damage suffered; –        order the [OSCURATO:PERSONA] to pay the costs. 15 By separate document lodged at the [OSCURATO:PERSONA] on 1 December 2017, the [OSCURATO:PERSONA] raised a plea of inadmissibility, pursuant to [OSCURATO:PERSONA] 130 of the Rules of Procedure. 16 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: –        dismiss the action as ‘manifestly inadmissible’; –        order the applicant to pay the costs. 17 By document of 10 January 2018, the applicant lodged his observations regarding that plea of inadmissibility. The applicant claims that the [OSCURATO:PERSONA] should dismiss that plea. 18 By document of 17 January 2018, the [OSCURATO:PERSONA] decided not to join [OSCURATO:PERSONA] T‑59/17 and the present case at that stage of the proceedings. Law 19 In support of the plea of inadmissibility, the [OSCURATO:PERSONA] raises two grounds, the first alleging that a situation of lis pendens exists and the second, raised in the alternative, alleging infringement of [OSCURATO:PERSONA] 76(d) and [OSCURATO:PERSONA] 83 of the Rules of Procedure. 20 [OSCURATO:PERSONA] 130(1) and (7) of the Rules of Procedure, if a defendant applies for a decision on inadmissibility, the [OSCURATO:PERSONA] may decide on that application without going to the substance of the case. In the present case, the [OSCURATO:PERSONA], considering itself to be sufficiently informed by the documents before it, has decided to give a ruling on that application without taking further steps in the proceedings. 21 According to settled case-law, an action which is between the same parties, has the same purpose and is brought on the basis of the same submissions as an action brought previously must be dismissed as inadmissible (order of 14 June 2007, [OSCURATO:PERSONA]Holstein v Commission , T‑68/07, not published, EU:T:2007:180, paragraph 16; see also, to that effect, judgments of 19 September 1985, [OSCURATO:PERSONA] v Commission , 172/83 and 226/83, EU:C:1985:355, paragraph 9, and of 22 September 1988, France v [OSCURATO:PERSONA] , 358/85 and 51/86, EU:C:1988:431, paragraph 12). 22 In the present case, first, it is common ground that the present action and the action in [OSCURATO:PERSONA] T‑59/17 have been brought by the same applicant and concern the same defendant. 23 Second, it is expressly stated in paragraph 1 of the applications lodged in [OSCURATO:PERSONA] T‑59/17 and the present case (the paragraphs dedicated to the subject matter of the dispute) and the applicant’s heads of claim in those applications (first head of claim in [OSCURATO:PERSONA] T‑59/17 and second head of claim in the present case) that the actions in each of those cases are for annulment of the same decision, namely the dismissal decision. 24 In that regard, even assuming that the applicant’s actions are to be interpreted as concerning, in [OSCURATO:PERSONA] T‑59/17, the implied decision rejecting the complaint and, in the present case, the express decision rejecting that complaint, that cannot undermine the foregoing conclusion. The administrative complaint and its rejection, whether express or implied, by the authority empowered to conclude contracts of employment, constitute an integral part of a complex procedure. Consequently, claims for annulment, even if formally directed against the rejection of a complaint, have the effect of bringing before the [OSCURATO:PERSONA] the act adversely affecting the applicant against which the complaint was lodged — namely, in the present case, the dismissal decision — and, as such, lack any independent content (see, to that effect and by analogy, judgments of 17 January 1989, Vainker v [OSCURATO:PERSONA] , 293/87, EU:C:1989:8, paragraph 8, and of 23 March 2004, Theodorakis v Council , T‑310/02, EU:T:2004:90, paragraph 19; and order of 19 September 2006, Vienna and Others v [OSCURATO:PERSONA] , F‑22/06, EU:F:2006:89, paragraphs 14 and 15). 25 As regards the claim for damages in the present action, it is seeking, as in the action brought in [OSCURATO:PERSONA] T‑59/17, compensation for the non-material damage which the applicant claims to have suffered as a result of the dismissal decision (see, to that effect, order of 19 September 2006, Vienna and Others v [OSCURATO:PERSONA] , F‑22/06, EU:F:2006:89, paragraph 16). 26 Third, the action brought in the present case and the action brought in [OSCURATO:PERSONA] T‑59/17 are based on the same submissions. In that regard, first, contrary to the applicant’s assertions, the [OSCURATO:PERSONA] did not err in any way by citing the judgments of 22 September 1988, France v [OSCURATO:PERSONA] (358/85 and 51/86, EU:C:1988:431, paragraph 11), and of 16 September 2013, [OSCURATO:PERSONA] v EIB (T‑618/11 P, EU:T:2013:479). In those judgments, the EU judicature held that the pleas raised by the applicant in two different cases were similar, so that the later action brought on the basis of those pleas had to be dismissed as inadmissible on the ground of lis pendens . 27 Second, the applicant, by confining himself to relying, in that regard, on the fact that the argument alleging ‘abusive dismissal’, inasmuch as the MEP had employed his partner in his place, is new, does not adduce any evidence calling in question the [OSCURATO:PERSONA]’s contention that the supposedly new arguments set out in the application lodged in the present case (including that argument) are, in fact, arguments reproduced from the reply lodged in [OSCURATO:PERSONA] T‑59/17, which must be taken into account in the comparison of the pleas raised (see, to that effect, order of 25 January 2008, Duyster v Commission , F‑80/06, EU:F:2008:5, paragraph 56). 28 The fact that the [OSCURATO:PERSONA] has contested the admissibility of that last argument in the rejoinder lodged in [OSCURATO:PERSONA] T‑59/17, on the ground that it is new, and that, consequently, it may not be examined by the [OSCURATO:PERSONA] on the merits, is irrelevant. Indeed, the applicant cannot, without depriving [OSCURATO:PERSONA] 84 of the Rules of Procedure, which prohibits, in principle, the introduction of new pleas in the course of proceedings, of its effectiveness, justify bringing a new action solely on the ground that it would allow him to raise an argument rejected as inadmissible by the [OSCURATO:PERSONA] in an earlier case because of its newness. 29 Having regard to the foregoing, it must be concluded that the action brought in the present case and the action brought in [OSCURATO:PERSONA] T‑59/17 are between the same parties, are based on the same submissions, and have the same purpose, namely annulment of the dismissal decision and compensation for the non-material damage which the applicant claims to have suffered following that decision. 30 None of the applicant’s other arguments is capable of undermining that conclusion. 31 In the first place, the applicant claims that there has been an infringement, by the [OSCURATO:PERSONA], of the fundamental right of access to justice and of the ‘deontological rules of honour’. The applicant asserts, in that regard, that the [OSCURATO:PERSONA]’s sole objective in raising the plea of inadmissibility is to deprive him of legal aid so as to cause ‘his legal action [to] collapse’, since he is unemployed and has very modest means. Unlike in the present case, in [OSCURATO:PERSONA] T‑59/17 the applicant was not granted legal aid. The applicant indicates, in that regard, that he has concluded an agreement with his lawyer by virtue of which he will not pay any fees in [OSCURATO:PERSONA] T‑59/17 provided that he is granted legal aid in the present case. Consequently, the dismissal of the action in the present case would mean that the applicant could not be represented in [OSCURATO:PERSONA] T‑59/17. The applicant argues that the [OSCURATO:PERSONA] must observe the ‘deontological rules of honour’ and the fundamental right of access to justice for persons with no income or with modest income. This is all the more the case in view of the [OSCURATO:PERSONA]’s decision to grant the applicant legal aid in the present case and not in [OSCURATO:PERSONA] T‑59/17. The applicant recalls, in that regard, that, unlike the concept of lis pendens , the right of access to a court or tribunal is recognised as fundamental in [OSCURATO:PERSONA] 47 of the Charter of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], [OSCURATO:PERSONA] 6 of the Convention for the Protection of [OSCURATO:PERSONA] and [OSCURATO:PERSONA], signed in Rome on 4 November 1950, and [OSCURATO:PERSONA] 14 of the [OSCURATO:PERSONA] on Civil and [OSCURATO:PERSONA]. That fundamental right should therefore prevail over the concept of lis pendens . 32 It should be noted that [OSCURATO:PERSONA] 47 of the Charter of [OSCURATO:PERSONA] enshrines the right to an effective remedy, which includes, in the second paragraph of that article, in particular, the right of everyone to have the possibility of being advised, defended and represented by a lawyer. The third paragraph of that article guarantees the right to an effective remedy through the grant of legal aid to individuals who lack sufficient resources (judgment of 28 July 2016, Ordre des barreaux francophones et germanophone and Others , C‑543/14, EU:C:2016:605, paragraph 27). 33 However, the arrangement concluded between the applicant and his lawyer, under which he will not pay any fees in [OSCURATO:PERSONA] T‑59/17 provided that he is granted legal aid in the present case, and the fact that a finding that the action brought in the present case is inadmissible would, for the applicant, mean ‘losing [his] lawyer for the case T‑59/17’ and, consequently, would deprive him of his right to an effective remedy, cannot frustrate the application of the rules concerning the admissibility of an action for annulment, which are judged at the time of bringing the action, that is, the lodging of the application (see judgment of 22 June 2016, [OSCURATO:PERSONA] v Commission , T‑118/13, EU:T:2016:365, paragraph 49 and the case-law cited), and are a matter of public policy (see, to that effect, judgment of 18 September 2014, [OSCURATO:PERSONA] of Iran v Council , T‑262/12, not published, EU:T:2014:777, paragraph 38). In any event, as is apparent from the applicant’s observations, he has already been able to benefit indirectly, in [OSCURATO:PERSONA] T‑59/17, from the legal aid granted in the present case, having lodged an application and a reply in that case. Moreover, the present case in no way concerns the applicant’s right to receive legal aid in [OSCURATO:PERSONA] T‑59/17, currently pending before the [OSCURATO:PERSONA], legal aid which may still be requested from the [OSCURATO:PERSONA] by the applicant. 34 In the second place, the applicant argues, in essence, that the [OSCURATO:PERSONA] contradicts itself in so far as, on the one hand, in [OSCURATO:PERSONA] T‑59/17, it maintains that he should have brought an action against the express decision rejecting the complaint (a decision which he has, in fact, ‘accepted’), whereas, on the other hand, in the present case, it asserts that the action brought by him against the express decision rejecting the complaint is inadmissible on the ground of lis pendens . According to the applicant, this alleged contradiction in the [OSCURATO:PERSONA]’s reasoning raises doubts as to the admissibility of the action in [OSCURATO:PERSONA] T‑59/17. 35 However, in so far as the applicant argues that his action in [OSCURATO:PERSONA] T‑59/17 could be dismissed as inadmissible as it is not formally directed against the express decision rejecting the complaint, such an argument must be rejected as unfounded. As is apparent from paragraph 24 above, claims for annulment, even if formally directed against the (express or implied) rejection of a complaint, have the effect of bringing before the [OSCURATO:PERSONA] the act adversely affecting the applicant against which the complaint was lodged and, as such, lack any independent content. Thus, as the [OSCURATO:PERSONA] contends, where an applicant begins by bringing an action against the implied decision rejecting his complaint in order to bring a later action concerning the express decision rejecting that complaint, the second action must, in principle, be dismissed as inadmissible on the ground of lis pendens (see, to that effect, order of 19 September 2006, Vienna and Others v [OSCURATO:PERSONA] , F‑22/06, EU:F:2006:89, paragraphs 14 and 15). 36 In the third place, the applicant argues that the plea of inadmissibility lodged by the [OSCURATO:PERSONA] was lodged out of time. The applicant asserts, first, that, by granting him legal aid in the present case, the [OSCURATO:PERSONA] already considered that the present action was ‘manifestly admissible’ and, second, that the [OSCURATO:PERSONA] should have voiced its doubts during the examination of the application for legal aid in the present case and not at this advanced stage of the proceedings. 37 However, when granting the applicant legal aid in the present case, the [OSCURATO:PERSONA] was not in a position to give a ruling on a potential situation of lis pendens between the present case and [OSCURATO:PERSONA] T‑59/17 because, in order to do so, in accordance with the case-law set out in paragraph 21 above, the [OSCURATO:PERSONA] would have had to assess the similarity of the pleas raised in the two cases, pleas of which it was not aware in the present case, as the order of the [OSCURATO:PERSONA] ruling on the legal aid was made well before the application setting out those pleas in law was lodged: the order in [OSCURATO:PERSONA] T‑156/17 AJ was made on 30 May 2017 (see paragraph 11 above), whereas the application in the present case was lodged on 11 September 2017. For the same reason, the [OSCURATO:PERSONA], not being aware of the pleas in law raised by the applicant in the present case, could not plead lis pendens before that point. In addition, it must be pointed out that the time limit for lodging a plea of inadmissibility as referred to in [OSCURATO:PERSONA] 130(1) of the Rules of Procedure is that set out in [OSCURATO:PERSONA] 81 of those Rules, namely the time limit for lodging the defence. In those circumstances, the applicant is wrong to argue that the plea of inadmissibility was lodged out of time. 38 It follows from all of the foregoing that the action must be dismissed as inadmissible in its entirety, without it being necessary to examine the second ground of inadmissibility raised by the [OSCURATO:PERSONA]. Costs 39 [OSCURATO:PERSONA] 149(5) of the Rules of Procedure, where the recipient of the legal aid is unsuccessful, the [OSCURATO:PERSONA] may, in ruling as to costs in the decision closing the proceedings, if equity so requires, order that one or more parties should bear their own costs. 40 In the present case, it must be found that, although the recipient of the legal aid has indeed been unsuccessful, the present order does not put an end to the dispute concerning the dismissal decision and does not prejudge the merits of the arguments relied on by the applicant against that decision in [OSCURATO:PERSONA] T‑59/17. In addition, since the [OSCURATO:PERSONA] has not filed a defence in the present case, its costs are necessarily limited. 41 In those circumstances, each party is to bear its own costs. On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The action is dismissed as inadmissible. 2. Each party is to bear its own costs. Luxembourg, 20 June 2018. E. Coulon S. [OSCURATO:PERSONA] * Language of the case: English.