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Corte di giustizia UEsentenza

Corte di giustizia UE/2014

ECLI:EU:T:2014:878
Testo integrale del provvedimento

Testo integrale del provvedimento

62013TO0059_EN

[OSCURATO:PERSONA] part

[OSCURATO:PERSONA]59/13 P,

[OSCURATO:PERSONA] against the order of the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) of 3 December 2012 in BT v [OSCURATO:PERSONA] (F-45/12, ECR-SC, EU:F:2012:168), seeking to have that order set aside, BT, residing in Bucharest (Romania), represented initially by N. Visan, and subsequently by G. Coca, lawyers, appellant, the other party to the proceedings being [OSCURATO:PERSONA], represented by J. Currall and A.-C.

Simon, acting as Agents, defendant at first instance,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]),

composed of M. Jaeger, President, H. Kanninen (Rapporteur) and D. Gratsias, Judges, Registrar: E. Coulon, makes the following

[OSCURATO:PERSONA]

1. By her appeal brought pursuant to Article 9 of Annex I to the Statute of the [OSCURATO:PERSONA] of Justice, the appellant, BT, seeks to have set aside the order of the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) of 3 December 2012, in BT v [OSCURATO:PERSONA] (F-45/12, ECR-SC, EU:F:2012:168; ‘the order under appeal’), by which the [OSCURATO:PERSONA] dismissed her action for annulment of the decision of the [OSCURATO:PERSONA] not to renew her contract as a member of the contract staff.

Factual background to the dispute

2. The facts are set out in paragraphs 2 to 7 of the order under appeal as follows: ‘2 The [appellant] was recruited by the [OSCURATO:PERSONA] on the basis of a contract as a member of the contract staff within the meaning of Article 3a of the Conditions of Employment of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]… for a duration of three years with effect from 10 November 2008.

Under that contract, signed on 9 October 2008 by the [OSCURATO:PERSONA] and on 10 November 2008 by the [appellant], she was to carry out executive tasks, drafting, accountancy and equivalent technical tasks, within the [OSCURATO:PERSONA] delegation to the Republic of Moldova … … 4 On 27 July 2011, the Head of Delegation informed the [appellant] orally that her contract would not be renewed. 5 By note of 6 September 2011, the Director of the [OSCURATO:PERSONA] for “Resources in Headquarters and in Delegations” in the [OSCURATO:PERSONA][OSCURATO:PERSONA] responsible for “Development and Cooperation — EuropeAid” reminded the [appellant] that her contract was due to expire on 9 November 2011 and advised her to contact the relevant department to obtain the information needed in connection with the formalities for her departure. 6 By note of 20 September 2011, the [appellant] lodged a complaint against the … decision [not to renew her contract as a member of the contract staff] for the purposes of Article 90(2) of the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA] … 7 By decision of 16 January 2012, received by the [appellant] on 17 January 2012, the authority authorised to conclude contracts of employment rejected the complaint.’ Procedure at first instance and order under appeal

3. By application lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 10 April 2012, the appellant brought an action, which was registered as [OSCURATO:PERSONA]45/12, inter alia for annulment of the [OSCURATO:PERSONA]’s decision not to renew her contract as a member of the contract staff (‘the contested decision’).

4. In its defence, lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 12 July 2012, the [OSCURATO:PERSONA] essentially contended that the action should be dismissed.

5. By the order under appeal, the [OSCURATO:PERSONA] found inter alia that the appellant’s claim that the contested decision should be annulled did not meet the requirements of Article 35(1)(c) of the Rules of Procedure of the [OSCURATO:PERSONA] and should therefore be rejected as manifestly inadmissible.

6. In the first place, the [OSCURATO:PERSONA] stated that ‘while the part of the application entitled “Statement of facts giving rise to the action” contain[ed] a long description of the factual circumstances which [gave] rise to the present action, no plea in law emerge[d] from this with sufficient clarity as to be readily and accurately identifiable by the defendant or by the judicial authority before which the action ha[d] been brought’.

In the second place, it stated that ‘in the part of the application entitled “Law” and in the “summary” of that application, the [appellant] merely claim[ed], without adequately substantiating her submissions, that the contested decision infringed the fourth paragraph of Article 263 TFEU, Article 268 TFEU and the second paragraph of Article 340 TFEU’. [OSCURATO:PERSONA] added that ‘although, in order to demonstrate the soundness of her arguments, the [appellant] also refer[ed] to the annexes to the application, the [[OSCURATO:PERSONA]] cannot substitute its own assessment for that of the [appellant]; nor is it for the [[OSCURATO:PERSONA]] to seek out and identify, in the annexes, the pleas on which it might consider the action to be based, since the annexes have a purely evidential and instrumental function’.

The appeal Procedure and forms of order sought

7. By document lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 30 January 2013, the appellant brought the present appeal.

8. By letter lodged at the [OSCURATO:PERSONA] on 26 February 2013, the appellant confirmed her intention to preserve the anonymity given to her at first instance, which the President of the [OSCURATO:PERSONA] granted by decision of 21 March 2013.

9. By fax of 6 June 2013, the appellant sought permission to lodge a reply.

However, she did not, in accordance with Article 43(6) of the Rules of Procedure of the [OSCURATO:PERSONA] lodge the signed original of the application within 10 days of receipt of the fax at the [OSCURATO:PERSONA].

Therefore, by letter of 24 July 2013 the [OSCURATO:PERSONA] informed the parties that the written procedure had closed.

10. On 29 October 2013 the appellant informed the [OSCURATO:PERSONA] of the change of her representative.

11. By letter lodged at the [OSCURATO:PERSONA] on 22 November 2013, the appellant’s new representative sought permission to lodge a reply claiming the existence of exceptional circumstances.

By decision of 19 December 2013, the President of the [OSCURATO:PERSONA] dismissed that application.

12. The appellant claims that the [OSCURATO:PERSONA] should: – set aside the order under appeal; – review of its own motion any infringement by the [OSCURATO:PERSONA] of the applicable rules of law; – ‘re-judge the case’ and uphold her action at first instance; – order the [OSCURATO:PERSONA] to pay the costs.

13. [OSCURATO:PERSONA], which submits that the appeal is manifestly unfounded, contends that the [OSCURATO:PERSONA] should: – dismiss the appeal; – order the appellant to pay the costs. Law

14. Pursuant to Article 145 of its Rules of Procedure, where the appeal is clearly inadmissible or clearly unfounded, the [OSCURATO:PERSONA] may at any time dismiss it by reasoned order.

In this instance, the [OSCURATO:PERSONA] considers that it has sufficient information from the documents in the file and has decided, pursuant to that article, to give a ruling without taking further steps in the proceedings.

The claim that the order under appeal should be set aside

15. In support of the appeal, the appellant relies on eight grounds of appeal.

The first ground alleges infringement of the ‘principle of the active role’ of the court.

The second ground alleges infringement of Article 6(1) of the [OSCURATO:PERSONA] on the Protection of [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (‘the ECHR’), the first and second paragraphs of Article 47 of the Charter of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], the principle of access to the courts and the principle of the impartiality of the [OSCURATO:PERSONA], inasmuch as the [OSCURATO:PERSONA] dismissed the action as manifestly inadmissible without giving her the opportunity to rectify and complete the application.

The third ground alleges infringement of the right to access to the court in that the [OSCURATO:PERSONA] refused a second exchange of pleadings.

The fourth ground alleges infringement of the right to defend the action before a court and of the principle of the public character of the procedure in that there was no hearing.

The fifth ground alleges infringement of the principle of procedural fairness inasmuch as the [OSCURATO:PERSONA] did not hear the appellant on the admissibility of the action.

The sixth ground alleges infringement of the first paragraph of Article 21 of the Statute of the [OSCURATO:PERSONA] of Justice and Article 44(1)(c) of the Rules of Procedure of the [OSCURATO:PERSONA] in that the [OSCURATO:PERSONA] applied a ‘rule of crystallising the legal proceedings’ in considering that the application did not contain any pleas in law.

The seventh ground alleges essentially a distortion of the facts.

By the eighth ground, the appellant challenges the costs order made against her.

16. The second, third, fourth and fifth grounds, which are closely linked, shall be examined together. – [OSCURATO:PERSONA] ground of appeal, alleging infringement of the ‘principle of the active role’ of the court

17. The appellant criticises the [OSCURATO:PERSONA] for having found that the action contained no plea in law while failing to carry out, of its own motion, a review of the legality of the contested decision, which is not limited merely to the pleas relied upon by the appellant.

18. [OSCURATO:PERSONA] contests the arguments put forward by the appellant.

19. [OSCURATO:PERSONA] found, in essence, in paragraphs 19 and 20 of the order under appeal, that the action was not based on any plea in law that was readily identifiable by the defendant or the [OSCURATO:PERSONA].

20. In that regard, it must be noted that, in accordance with paragraph 35(1)(e) of the Rules of Procedure of the [OSCURATO:PERSONA], it is for the applicant to set out in the application ‘the pleas in law and the arguments of fact and law relied on’.

As is clear from paragraph 15 of the order under appeal, ‘those arguments must be sufficiently clear and precise to enable the defendant to prepare its defence and the [OSCURATO:PERSONA] to rule on the action, if necessary without any other supporting information’.

21. The appellant does not call into question the assessment of the [OSCURATO:PERSONA] set out in paragraphs 19 and 20 of the order under appeal.

The appellant merely states that it was for the [OSCURATO:PERSONA] to examine of its own motion the legality of the contested decision without limiting itself to the pleas relied on by the appellant.

22. Since a [OSCURATO:PERSONA] court before which an action for annulment has been brought cannot rule ultra petita , it is not entitled either to redefine the principal subject-matter of the action or to raise a plea of its own motion except in particular cases where the public interest requires its intervention (see, to that effect, judgments of 18 December 2008 in Belgium and [OSCURATO:PERSONA] v Genette , T-90/07 P and T-99/07 P, ECR, EU:T:2008:605, paragraphs 72 to 75, and of 5 October 2009 in [OSCURATO:PERSONA] v Roodhuijzen , T-58/08 P, ECR, EU:T:2009:385, paragraph 34).

23. Moreover, while the [OSCURATO:PERSONA] may raise a plea involving a matter of public policy of its own motion which a priori was not raised by the parties (see, to that effect, judgments of 2 December 2009 in [OSCURATO:PERSONA] v Ireland and Others , C-89/08 P, ECR, EU:C:2009:742, paragraph 35, and of 27 October 2010 in Reali v [OSCURATO:PERSONA] , T-65/09 P, ECR-SC, EU:T:2010:454, paragraph 43), it must be stated that, in the present case, the appellant has not established the existence of any pleas involving matters of public policy which the [OSCURATO:PERSONA] should have raised of its own motion.

24. In those circumstances, the appellant cannot criticise the [OSCURATO:PERSONA] for not having examined of its own motion the legality of the contested decision.

25. The first ground of appeal must therefore be rejected as manifestly unfounded. – Second, third, fourth and fifth grounds of appeal alleging, essentially, infringement of Article 6 of the ECHR and of the rights of the defence in that the appellant did not have the opportunity to make submissions in writing or orally before the order under appeal was adopted.

26. The appellant alleges infringement of Article 6(1) of the ECHR, the first and second paragraphs of Article 47 of the Charter of [OSCURATO:PERSONA], the principle of ‘access to the courts’, the principle of the impartiality of the [OSCURATO:PERSONA], the rights of the defence, the principle of the public character of the procedure and the principle of procedural fairness in that the [OSCURATO:PERSONA] dismissed the action as manifestly inadmissible without giving her the opportunity to ‘make right or complete’ her application, in particular by the submission of a reply, or by allowing her to defend herself at a public hearing.

27. [OSCURATO:PERSONA] contests the arguments put forward by the appellant.

28. It must be recalled that the application of the procedure provided for in Article 76 of the Rules of Procedure of the [OSCURATO:PERSONA] does not in itself prejudice the right to proper and effective judicial process, since that provision is applicable only to cases where it is clear that the [OSCURATO:PERSONA] manifestly has no jurisdiction to take cognisance of the action, or where the action is manifestly inadmissible or manifestly lacking any foundation in law (see, to that effect, order of 16 December 2010 in Meister v OHIM , T-48/10 P, ECR-SC, EU:T:2010:542, paragraph 29; see also, by analogy, order of 3 June 2005 in Killinger v Germany and Others , C-396/03 P, ECR, EU:C:2005:355, paragraph 9, and judgment of 19 February 2009 in [OSCURATO:PERSONA] v Parliament , C-308/07 P, ECR, EU:C:2009:103, paragraph 36).

29. Consequently, if an appellant considers that the [OSCURATO:PERSONA] did not apply Article 76 of the Rules of Procedure of the [OSCURATO:PERSONA] correctly, it is up to that appellant to challenge the assessment by the court at first instance of the conditions to which the application of that provision is subject (see, to that effect, order in Meister v OHIM , cited in paragraph 28 above, EU:T:2010:542, paragraph 29; see also, by analogy, judgment in [OSCURATO:PERSONA] v Parliament , cited in paragraph 28 above, EU:C:2009:103, paragraph 36).

30. In the present case, the appellant merely states that she did not have the opportunity to present her observations before the order under appeal was adopted but fails to demonstrate the error of law committed by the [OSCURATO:PERSONA] in its application of Article 76 of the Rules of Procedure of the [OSCURATO:PERSONA].

31. [OSCURATO:PERSONA], she does not demonstrate that the [OSCURATO:PERSONA], by not giving her the opportunity to ‘to make right or complete her application’, is in breach of the conditions for applying Article

76. She merely claims that such an opportunity is ‘a right provisioned for and recognised in the legislation of any [OSCURATO:PERSONA] country but also of the [OSCURATO:PERSONA] courts (for example the [OSCURATO:PERSONA] of [OSCURATO:PERSONA])’ without any other explanation to support that claim.

32. Neither the provisions of Article 76 of the Rules of Procedure of the [OSCURATO:PERSONA] nor any other provision of those rules or of the Statute of the [OSCURATO:PERSONA] of Justice place any obligation on the [OSCURATO:PERSONA] to notify the party lodging an action that his application is manifestly inadmissible.

The appellant does not identify any other provision or any other principle applicable to this case which lays down such an obligation.

33. Moreover, although it is true that the Statute of the [OSCURATO:PERSONA] of Justice and the Rules of Procedure of the [OSCURATO:PERSONA] provide for the possibility of rectifying an application which does not comply with certain procedural requirements, it is also true that, in any event, non-compliance with Article 35(1)(e) of the Rules of Procedure of the [OSCURATO:PERSONA] is not one of the requirements which can be rectified, in accordance with Article 36 of those rules.

34. It follows that, in not inviting the appellant to rectify or complete her application, the [OSCURATO:PERSONA] has not committed any procedural irregularity.

35. Secondly, the appellant also failed to demonstrate in what way the refusal by the [OSCURATO:PERSONA] to have a second round of pleadings infringed Article 76 of its Rules of Procedure or any other provision of those rules.

She merely states that the refusal to have a second round of pleadings ‘deprived [her of] the chance to make right’ what caused the action to be held to be inadmissible.

It must be recalled that Article 76 of the Rules of Procedure of the [OSCURATO:PERSONA] expressly states that, where an action is, in whole or in part, manifestly inadmissible or manifestly lacking any foundation in law, the [OSCURATO:PERSONA] may, ‘by reasoned order, give a decision on the action without taking further steps in the proceedings’.

In any event, in accordance with Article 41 of the Rules of Procedure of the [OSCURATO:PERSONA], the latter ‘may’ decide that a second exchange of written pleadings is necessary to supplement the documents before the [OSCURATO:PERSONA].

36. The appellant cannot therefore criticise the [OSCURATO:PERSONA] for having refused a second exchange of pleadings.

37. Thirdly, the appellant merely states that ‘the principle of the public character of the procedure’, which entails the holding of a public hearing, ‘is provided for by the Rules of Procedure of the [OSCURATO:PERSONA] and by Article 6(1) of [the ECHR]’ without, however, supporting that assertion.

38. It is clear from the very wording of Article 76 of the Rules of Procedure of the [OSCURATO:PERSONA] that applicants do not have a right to a hearing which cannot be derogated from (see, by analogy, order of 8 July 1999 in Goldstein v [OSCURATO:PERSONA] , C-199/98 P, EU:C:1999:379, paragraph 18, and judgment of 8 September 2008 in Kerstens v [OSCURATO:PERSONA] , T-222/07 P, ECR-SC, EU:T:2008:314, paragraph 33).

39. Whilst it is true that Article 6(1) of the ECHR provides that everyone is entitled to a public hearing, that principle is not absolute. [OSCURATO:PERSONA] of Justice has held that that option of dispensing with the oral procedure does not prejudice the right to a proper and effective judicial process, since that option is applicable to cases in which it is clear that the [OSCURATO:PERSONA] has no jurisdiction to take cognisance of the action, or where the action is manifestly inadmissible or manifestly lacking any foundation in law (judgment in [OSCURATO:PERSONA] v Parliament , cited in paragraph 28 above, EU:C:2009:103, paragraph 36).

40. It follows that the [OSCURATO:PERSONA], in giving its decision in the form of an order without holding a hearing, has not infringed Article 6 of the ECHR, or its own Rules of Procedure, or the right to be heard, or the principle of the public character of the procedure.

41. Finally, the appellant claims that the principle of the impartiality of the [OSCURATO:PERSONA] has been infringed.

According to the case-law there are two aspects to the requirement of impartiality.

In the first place, the [OSCURATO:PERSONA] must be subjectively impartial, that is to say, none of its members must show bias or personal prejudice, there being a presumption of personal impartiality in the absence of evidence to the contrary.

In the second place, the [OSCURATO:PERSONA] must be objectively impartial, that is to say, it must offer guarantees sufficient to exclude any legitimate doubt in this respect (see order of 15 December 2011 in Altner v [OSCURATO:PERSONA] , C-411/11 P, EU:C:2011:852, paragraph 15 and the case-law cited).

42. The appellant has adduced no evidence which might call into question the personal impartiality of the members of the [OSCURATO:PERSONA] or which raises doubts over the impartiality of the [OSCURATO:PERSONA].

43. The second, third, fourth and fifth grounds of appeal must therefore be rejected as manifestly unfounded. – The sixth ground of appeal, alleging infringement of the first paragraph of Article 21 of the Statute of the [OSCURATO:PERSONA] of Justice and Article 44(1)(c) of the Rules of Procedure of the [OSCURATO:PERSONA]

44. The appellant claims that the [OSCURATO:PERSONA] infringed the first paragraph of Article 21 of the Statute of the [OSCURATO:PERSONA] of Justice and Article 44(1)(c) of the Rules of Procedure of the [OSCURATO:PERSONA] in that it ‘applied, in fact, “a rule of crystallising the legal proceedings” in considering that the application did not contain pleas in law’.

45. [OSCURATO:PERSONA] did not comment on the appellant’s arguments.

46. In the first place, it must be noted that Article 44 of the Rules of Procedure of the [OSCURATO:PERSONA] does not apply to the [OSCURATO:PERSONA], and consequently the applicant cannot rely on a breach of that provision by the [OSCURATO:PERSONA].

47. In the second place, even assuming that the appellant meant to refer to Article 35(1)(e) of the Rules of Procedure of the [OSCURATO:PERSONA], it must be stated that, in support of her claim that the [OSCURATO:PERSONA], in breach of the first paragraph of Article 21 of the Statute of the [OSCURATO:PERSONA] of Justice and the abovementioned Article 35, applied an alleged ‘rule of crystallising the legal proceedings’, the appellant does not provide any explanation nor any legal argument to show that the [OSCURATO:PERSONA] erred in law by rejecting as being manifestly inadmissible, in paragraphs 15 to 21 of the order under appeal, the claims for annulment of the contested decision.

48. The sixth ground of appeal must therefore be rejected as manifestly unfounded. – The seventh ground of appeal, alleging essentially a distortion of the facts

49. The appellant states that, in the part of the order under appeal headed ‘Factual background to the dispute’, the [OSCURATO:PERSONA] states that she ‘received at the due date the Note of the [OSCURATO:PERSONA] dated 6 September 2011’ announcing the expiry of the employment contract and dealing with the formalities linked to her departure.

The appellant maintains that, in the application at first instance, she denied having received that note before 31 October 2011.

The appellant is also unsure on what basis the [OSCURATO:PERSONA] was able to indicate that that note ‘reminded’ her that her contract was due to expire and that she could obtain information about the formalities for her departure.

50. [OSCURATO:PERSONA] contests the arguments put forward by the appellant.

51. It is clear from settled case-law that the court at first instance has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts.

The appraisal of the facts by the court at first instance does not constitute, save where the evidence put before that court has been fundamentally misconstrued, a point of law which is subject, as such, to review by the [OSCURATO:PERSONA] of Justice or the [OSCURATO:PERSONA] on appeal.

Such distortion must be obvious from the documents on the [OSCURATO:PERSONA]’s file, without there being any need to carry out a new assessment of the facts and evidence (see, to that effect, orders of 16 September 1997 in Koelman v [OSCURATO:PERSONA] , C-59/96 P, ECR, EU:C:1997:404, paragraph 31, and of 7 December 2011 in Mioni v [OSCURATO:PERSONA] , T-274/11 P, ECR-SC, EU:T:2011:719, paragraph 18; and judgment of 16 May 2013 in [OSCURATO:PERSONA] v Council , T-281/11 P, ECR-SC, EU:T:2013:252, paragraph 75).

52. According to paragraph 5 of the order under appeal, ‘[b]y note of 6 September 2011, the Director of the [OSCURATO:PERSONA] for “Resources in Headquarters and in Delegations” in the [OSCURATO:PERSONA][OSCURATO:PERSONA] responsible for “Development and Cooperation — EuropeAid” reminded the [appellant] that her contract was due to expire on 9 November 2011 and advised her to contact the relevant department to obtain the information needed in connection with the formalities for her departure’.

53. It is evident that it is not stated in paragraph 5 of the order under appeal, contrary to what the appellant claims, that she ‘received at the due date the note of 6 September 2011’.

It refers only to the date of the note without alluding to the date the appellant received that note.

The appellant has therefore failed to establish that the note was not dated 6 September 2011.

54. Moreover, paragraph 5 of the order under appeal must be read in conjunction with the preceding paragraph 4, so that the note of 6 September 2011 did in fact ‘remind’ the appellant of what she had already been told orally on 27 July 2011, as is, moreover, expressly stated in paragraph 2 of the application at first instance.

55. In any event, the appellant does not draw any legal inference from the alleged distortion (see, to that effect, judgments of 9 September 2010 in Andreasen v [OSCURATO:PERSONA] , T-17/08 P, ECR-SC, EU:T:2010:374, paragraph 76, and of 24 October 2011 in P v Parliament , T-213/10 P, ECR-SC, EU:T:2011:617, paragraph 57).

56. The seventh ground of appeal must therefore be rejected as manifestly unfounded. – The eighth ground of appeal, alleging that the [OSCURATO:PERSONA] erroneously ordered the appellant to pay the costs

57. The appellant criticises the [OSCURATO:PERSONA] for having ordered her to pay the costs, since it did not rule on the merits of the action and there was in fact no legal argument or hearing.

According to the appellant, that order to pay costs aggravated the penalty of having her action dismissed as being inadmissible at a time when she had become financially dependent as a result of the termination of her contract of employment.

The appellant then cites Article 89(6) of the Rules of Procedure of the [OSCURATO:PERSONA], according to which ‘where a case does not proceed to judgment, the costs shall be in the discretion of the [[OSCURATO:PERSONA]] [OSCURATO:PERSONA]’.

58. [OSCURATO:PERSONA] did not comment on the appellant’s arguments.

59. It is apparent from Article 11(2) of Annex I to the Statute of the [OSCURATO:PERSONA] of Justice that no appeal may lie regarding only the amount of the costs or the party ordered to pay them.

It follows that, where all the other grounds put forward in an appeal have been rejected, any ground challenging the decision of the [OSCURATO:PERSONA] on costs must be rejected as being inadmissible (see order of 9 September 2009 in Nijs v [OSCURATO:PERSONA] of Auditors , T-375/08 P, ECR-SC, EU:T:2009:321, paragraph 71 and the case-law cited).

60. In the present case, all the grounds relied on by the appellant in support of her claim that the order under appeal be set aside have been dismissed, as is clear from paragraphs 17 to 56 above.

61. It follows that the eighth ground of appeal must be rejected as being manifestly inadmissible. The claim that the [OSCURATO:PERSONA] should review of its own motion any other infringement of the applicable rules of law which the [OSCURATO:PERSONA] might have committed

62. It is clear from Article 138(1)(c) of the Rules of Procedure of the [OSCURATO:PERSONA] that it is for the appellant to present in the appeal ‘the pleas in law and legal arguments relied on’.

63. According to settled case-law, it is clear from Article 11 of Annex I to the Statute of the [OSCURATO:PERSONA] of Justice and Article 138(1)(c) of the Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, to that effect, judgment of 16 December 2010 in Lebedef v [OSCURATO:PERSONA] , T-52/10 P, ECR-SC, EU:T:2010:543, paragraph 35, and order of 13 January 2014 in Lebedef v [OSCURATO:PERSONA] , T-116/13 P and T-117/13 P, ECR-SC, EU:T:2014:21, paragraph 23).

64. In the present case, the appellant merely sets out the head of claim in an abstract manner without supporting it with specific information, in particular relating to the rules of law which the [OSCURATO:PERSONA] is alleged to have infringed.

65. This head of claim must therefore be rejected as being manifestly inadmissible. The claim that the [OSCURATO:PERSONA] should ‘re-judge the case’ and uphold the appellant’s claims

66. Since the claim that the order under appeal be set aside has been rejected, the head of claim that the [OSCURATO:PERSONA] should ‘re-judge the case’ and uphold the appellant’s claims set out at first instance must also be rejected.

67. Even assuming that the present head of claim had been formulated independently of the claim to have the order under appeal set aside, it must be observed that, in accordance with settled case-law, in an appeal the jurisdiction of the [OSCURATO:PERSONA] is in principle confined to review of the findings of law on the pleas argued at first instance (see, by analogy, judgments of 11 November 2004 in Ramondín and Others v [OSCURATO:PERSONA] , C-186/02 P and C-188/02 P, ECR, EU:C:2004:702, paragraph 60, and of 22 June 2006 in Storck v OHIM , C-25/05 P, ECR, EU:C:2006:422, paragraph 61).

68. An appeal which merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the [OSCURATO:PERSONA] amounts in reality to no more than a request for re-examination of the application submitted to the [OSCURATO:PERSONA], which the [OSCURATO:PERSONA] does not have jurisdiction to undertake (see, to that effect, order of 4 April 2011 in Marcuccio v [OSCURATO:PERSONA] , T-239/09 P, ECR-SC, EU:T:2011:138, paragraph 62).

69. In the present case, in the application initiating the appeal, the appellant puts forward a number of arguments intended to prove that the [OSCURATO:PERSONA] infringed, in particular, the provisions of the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA] and the Conditions of Employment of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], which leads her to repeat the arguments she made before the [OSCURATO:PERSONA].

70. As regards the complaints and arguments submitted for the first time before this [OSCURATO:PERSONA], these must be rejected as manifestly inadmissible.

To allow a party to put forward for the first time before the [OSCURATO:PERSONA] a complaint which it has not raised before the [OSCURATO:PERSONA] would be to allow it to bring before the [OSCURATO:PERSONA], whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the [OSCURATO:PERSONA] (see, by analogy, judgments in Ramondín and Others v [OSCURATO:PERSONA] , cited in paragraph 67 above, EU:C:2004:702, paragraph 60, and in Storck v OHIM , cited in paragraph 67 above, EU:C:2006:422, paragraph 61).

71. It follows that this head of claim must be rejected as being manifestly inadmissible.

72. It follows from all of the foregoing that this appeal must be dismissed as in part manifestly inadmissible and in part manifestly unfounded. Costs

73. In accordance with the first paragraph of Article 148 of the Rules of Procedure of the [OSCURATO:PERSONA], where the appeal is unfounded, the [OSCURATO:PERSONA] shall make a decision as to costs.

74. Under the first subparagraph of Article 87(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 144 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

75. Since the appellant has been unsuccessful in her submissions in the appeal and the [OSCURATO:PERSONA] has applied for an order that she pay the costs of the proceedings, the appellant shall bear her own costs and pay those incurred by the [OSCURATO:PERSONA] in the present proceedings. [OSCURATO:PERSONA] part On those grounds,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

hereby:

1. Dismisses the appeal;

2. Orders BT to bear her own costs and to pay those incurred by the [OSCURATO:PERSONA] in the present proceedings. Luxembourg, 7 October 2014.

Anonimizzato ex art. 52 D.Lgs. 196/2003
62013TO0059_EN [OSCURATO:PERSONA] part [OSCURATO:PERSONA]59/13 P, [OSCURATO:PERSONA] against the order of the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) of 3 December 2012 in BT v [OSCURATO:PERSONA] (F-45/12, ECR-SC, EU:F:2012:168), seeking to have that order set aside, BT, residing in Bucharest (Romania), represented initially by N. Visan, and subsequently by G. Coca, lawyers, appellant, the other party to the proceedings being [OSCURATO:PERSONA], represented by J. Currall and A.-C. Simon, acting as Agents, defendant at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of M. Jaeger, President, H. Kanninen (Rapporteur) and D. Gratsias, Judges, Registrar: E. Coulon, makes the following [OSCURATO:PERSONA] 1. By her appeal brought pursuant to Article 9 of Annex I to the Statute of the [OSCURATO:PERSONA] of Justice, the appellant, BT, seeks to have set aside the order of the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) of 3 December 2012, in BT v [OSCURATO:PERSONA] (F-45/12, ECR-SC, EU:F:2012:168; ‘the order under appeal’), by which the [OSCURATO:PERSONA] dismissed her action for annulment of the decision of the [OSCURATO:PERSONA] not to renew her contract as a member of the contract staff. Factual background to the dispute 2. The facts are set out in paragraphs 2 to 7 of the order under appeal as follows: ‘2 The [appellant] was recruited by the [OSCURATO:PERSONA] on the basis of a contract as a member of the contract staff within the meaning of Article 3a of the Conditions of Employment of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]… for a duration of three years with effect from 10 November 2008. Under that contract, signed on 9 October 2008 by the [OSCURATO:PERSONA] and on 10 November 2008 by the [appellant], she was to carry out executive tasks, drafting, accountancy and equivalent technical tasks, within the [OSCURATO:PERSONA] delegation to the Republic of Moldova … … 4 On 27 July 2011, the Head of Delegation informed the [appellant] orally that her contract would not be renewed. 5 By note of 6 September 2011, the Director of the [OSCURATO:PERSONA] for “Resources in Headquarters and in Delegations” in the [OSCURATO:PERSONA][OSCURATO:PERSONA] responsible for “Development and Cooperation — EuropeAid” reminded the [appellant] that her contract was due to expire on 9 November 2011 and advised her to contact the relevant department to obtain the information needed in connection with the formalities for her departure. 6 By note of 20 September 2011, the [appellant] lodged a complaint against the … decision [not to renew her contract as a member of the contract staff] for the purposes of Article 90(2) of the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA] … 7 By decision of 16 January 2012, received by the [appellant] on 17 January 2012, the authority authorised to conclude contracts of employment rejected the complaint.’ Procedure at first instance and order under appeal 3. By application lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 10 April 2012, the appellant brought an action, which was registered as [OSCURATO:PERSONA]45/12, inter alia for annulment of the [OSCURATO:PERSONA]’s decision not to renew her contract as a member of the contract staff (‘the contested decision’). 4. In its defence, lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 12 July 2012, the [OSCURATO:PERSONA] essentially contended that the action should be dismissed. 5. By the order under appeal, the [OSCURATO:PERSONA] found inter alia that the appellant’s claim that the contested decision should be annulled did not meet the requirements of Article 35(1)(c) of the Rules of Procedure of the [OSCURATO:PERSONA] and should therefore be rejected as manifestly inadmissible. 6. In the first place, the [OSCURATO:PERSONA] stated that ‘while the part of the application entitled “Statement of facts giving rise to the action” contain[ed] a long description of the factual circumstances which [gave] rise to the present action, no plea in law emerge[d] from this with sufficient clarity as to be readily and accurately identifiable by the defendant or by the judicial authority before which the action ha[d] been brought’. In the second place, it stated that ‘in the part of the application entitled “Law” and in the “summary” of that application, the [appellant] merely claim[ed], without adequately substantiating her submissions, that the contested decision infringed the fourth paragraph of Article 263 TFEU, Article 268 TFEU and the second paragraph of Article 340 TFEU’. [OSCURATO:PERSONA] added that ‘although, in order to demonstrate the soundness of her arguments, the [appellant] also refer[ed] to the annexes to the application, the [[OSCURATO:PERSONA]] cannot substitute its own assessment for that of the [appellant]; nor is it for the [[OSCURATO:PERSONA]] to seek out and identify, in the annexes, the pleas on which it might consider the action to be based, since the annexes have a purely evidential and instrumental function’. The appeal Procedure and forms of order sought 7. By document lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 30 January 2013, the appellant brought the present appeal. 8. By letter lodged at the [OSCURATO:PERSONA] on 26 February 2013, the appellant confirmed her intention to preserve the anonymity given to her at first instance, which the President of the [OSCURATO:PERSONA] granted by decision of 21 March 2013. 9. By fax of 6 June 2013, the appellant sought permission to lodge a reply. However, she did not, in accordance with Article 43(6) of the Rules of Procedure of the [OSCURATO:PERSONA] lodge the signed original of the application within 10 days of receipt of the fax at the [OSCURATO:PERSONA]. Therefore, by letter of 24 July 2013 the [OSCURATO:PERSONA] informed the parties that the written procedure had closed. 10. On 29 October 2013 the appellant informed the [OSCURATO:PERSONA] of the change of her representative. 11. By letter lodged at the [OSCURATO:PERSONA] on 22 November 2013, the appellant’s new representative sought permission to lodge a reply claiming the existence of exceptional circumstances. By decision of 19 December 2013, the President of the [OSCURATO:PERSONA] dismissed that application. 12. The appellant claims that the [OSCURATO:PERSONA] should: – set aside the order under appeal; – review of its own motion any infringement by the [OSCURATO:PERSONA] of the applicable rules of law; – ‘re-judge the case’ and uphold her action at first instance; – order the [OSCURATO:PERSONA] to pay the costs. 13. [OSCURATO:PERSONA], which submits that the appeal is manifestly unfounded, contends that the [OSCURATO:PERSONA] should: – dismiss the appeal; – order the appellant to pay the costs. Law 14. Pursuant to Article 145 of its Rules of Procedure, where the appeal is clearly inadmissible or clearly unfounded, the [OSCURATO:PERSONA] may at any time dismiss it by reasoned order. In this instance, the [OSCURATO:PERSONA] considers that it has sufficient information from the documents in the file and has decided, pursuant to that article, to give a ruling without taking further steps in the proceedings. The claim that the order under appeal should be set aside 15. In support of the appeal, the appellant relies on eight grounds of appeal. The first ground alleges infringement of the ‘principle of the active role’ of the court. The second ground alleges infringement of Article 6(1) of the [OSCURATO:PERSONA] on the Protection of [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (‘the ECHR’), the first and second paragraphs of Article 47 of the Charter of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], the principle of access to the courts and the principle of the impartiality of the [OSCURATO:PERSONA], inasmuch as the [OSCURATO:PERSONA] dismissed the action as manifestly inadmissible without giving her the opportunity to rectify and complete the application. The third ground alleges infringement of the right to access to the court in that the [OSCURATO:PERSONA] refused a second exchange of pleadings. The fourth ground alleges infringement of the right to defend the action before a court and of the principle of the public character of the procedure in that there was no hearing. The fifth ground alleges infringement of the principle of procedural fairness inasmuch as the [OSCURATO:PERSONA] did not hear the appellant on the admissibility of the action. The sixth ground alleges infringement of the first paragraph of Article 21 of the Statute of the [OSCURATO:PERSONA] of Justice and Article 44(1)(c) of the Rules of Procedure of the [OSCURATO:PERSONA] in that the [OSCURATO:PERSONA] applied a ‘rule of crystallising the legal proceedings’ in considering that the application did not contain any pleas in law. The seventh ground alleges essentially a distortion of the facts. By the eighth ground, the appellant challenges the costs order made against her. 16. The second, third, fourth and fifth grounds, which are closely linked, shall be examined together. – [OSCURATO:PERSONA] ground of appeal, alleging infringement of the ‘principle of the active role’ of the court 17. The appellant criticises the [OSCURATO:PERSONA] for having found that the action contained no plea in law while failing to carry out, of its own motion, a review of the legality of the contested decision, which is not limited merely to the pleas relied upon by the appellant. 18. [OSCURATO:PERSONA] contests the arguments put forward by the appellant. 19. [OSCURATO:PERSONA] found, in essence, in paragraphs 19 and 20 of the order under appeal, that the action was not based on any plea in law that was readily identifiable by the defendant or the [OSCURATO:PERSONA]. 20. In that regard, it must be noted that, in accordance with paragraph 35(1)(e) of the Rules of Procedure of the [OSCURATO:PERSONA], it is for the applicant to set out in the application ‘the pleas in law and the arguments of fact and law relied on’. As is clear from paragraph 15 of the order under appeal, ‘those arguments must be sufficiently clear and precise to enable the defendant to prepare its defence and the [OSCURATO:PERSONA] to rule on the action, if necessary without any other supporting information’. 21. The appellant does not call into question the assessment of the [OSCURATO:PERSONA] set out in paragraphs 19 and 20 of the order under appeal. The appellant merely states that it was for the [OSCURATO:PERSONA] to examine of its own motion the legality of the contested decision without limiting itself to the pleas relied on by the appellant. 22. Since a [OSCURATO:PERSONA] court before which an action for annulment has been brought cannot rule ultra petita , it is not entitled either to redefine the principal subject-matter of the action or to raise a plea of its own motion except in particular cases where the public interest requires its intervention (see, to that effect, judgments of 18 December 2008 in Belgium and [OSCURATO:PERSONA] v Genette , T-90/07 P and T-99/07 P, ECR, EU:T:2008:605, paragraphs 72 to 75, and of 5 October 2009 in [OSCURATO:PERSONA] v Roodhuijzen , T-58/08 P, ECR, EU:T:2009:385, paragraph 34). 23. Moreover, while the [OSCURATO:PERSONA] may raise a plea involving a matter of public policy of its own motion which a priori was not raised by the parties (see, to that effect, judgments of 2 December 2009 in [OSCURATO:PERSONA] v Ireland and Others , C-89/08 P, ECR, EU:C:2009:742, paragraph 35, and of 27 October 2010 in Reali v [OSCURATO:PERSONA] , T-65/09 P, ECR-SC, EU:T:2010:454, paragraph 43), it must be stated that, in the present case, the appellant has not established the existence of any pleas involving matters of public policy which the [OSCURATO:PERSONA] should have raised of its own motion. 24. In those circumstances, the appellant cannot criticise the [OSCURATO:PERSONA] for not having examined of its own motion the legality of the contested decision. 25. The first ground of appeal must therefore be rejected as manifestly unfounded. – Second, third, fourth and fifth grounds of appeal alleging, essentially, infringement of Article 6 of the ECHR and of the rights of the defence in that the appellant did not have the opportunity to make submissions in writing or orally before the order under appeal was adopted. 26. The appellant alleges infringement of Article 6(1) of the ECHR, the first and second paragraphs of Article 47 of the Charter of [OSCURATO:PERSONA], the principle of ‘access to the courts’, the principle of the impartiality of the [OSCURATO:PERSONA], the rights of the defence, the principle of the public character of the procedure and the principle of procedural fairness in that the [OSCURATO:PERSONA] dismissed the action as manifestly inadmissible without giving her the opportunity to ‘make right or complete’ her application, in particular by the submission of a reply, or by allowing her to defend herself at a public hearing. 27. [OSCURATO:PERSONA] contests the arguments put forward by the appellant. 28. It must be recalled that the application of the procedure provided for in Article 76 of the Rules of Procedure of the [OSCURATO:PERSONA] does not in itself prejudice the right to proper and effective judicial process, since that provision is applicable only to cases where it is clear that the [OSCURATO:PERSONA] manifestly has no jurisdiction to take cognisance of the action, or where the action is manifestly inadmissible or manifestly lacking any foundation in law (see, to that effect, order of 16 December 2010 in Meister v OHIM , T-48/10 P, ECR-SC, EU:T:2010:542, paragraph 29; see also, by analogy, order of 3 June 2005 in Killinger v Germany and Others , C-396/03 P, ECR, EU:C:2005:355, paragraph 9, and judgment of 19 February 2009 in [OSCURATO:PERSONA] v Parliament , C-308/07 P, ECR, EU:C:2009:103, paragraph 36). 29. Consequently, if an appellant considers that the [OSCURATO:PERSONA] did not apply Article 76 of the Rules of Procedure of the [OSCURATO:PERSONA] correctly, it is up to that appellant to challenge the assessment by the court at first instance of the conditions to which the application of that provision is subject (see, to that effect, order in Meister v OHIM , cited in paragraph 28 above, EU:T:2010:542, paragraph 29; see also, by analogy, judgment in [OSCURATO:PERSONA] v Parliament , cited in paragraph 28 above, EU:C:2009:103, paragraph 36). 30. In the present case, the appellant merely states that she did not have the opportunity to present her observations before the order under appeal was adopted but fails to demonstrate the error of law committed by the [OSCURATO:PERSONA] in its application of Article 76 of the Rules of Procedure of the [OSCURATO:PERSONA]. 31. [OSCURATO:PERSONA], she does not demonstrate that the [OSCURATO:PERSONA], by not giving her the opportunity to ‘to make right or complete her application’, is in breach of the conditions for applying Article 76. She merely claims that such an opportunity is ‘a right provisioned for and recognised in the legislation of any [OSCURATO:PERSONA] country but also of the [OSCURATO:PERSONA] courts (for example the [OSCURATO:PERSONA] of [OSCURATO:PERSONA])’ without any other explanation to support that claim. 32. Neither the provisions of Article 76 of the Rules of Procedure of the [OSCURATO:PERSONA] nor any other provision of those rules or of the Statute of the [OSCURATO:PERSONA] of Justice place any obligation on the [OSCURATO:PERSONA] to notify the party lodging an action that his application is manifestly inadmissible. The appellant does not identify any other provision or any other principle applicable to this case which lays down such an obligation. 33. Moreover, although it is true that the Statute of the [OSCURATO:PERSONA] of Justice and the Rules of Procedure of the [OSCURATO:PERSONA] provide for the possibility of rectifying an application which does not comply with certain procedural requirements, it is also true that, in any event, non-compliance with Article 35(1)(e) of the Rules of Procedure of the [OSCURATO:PERSONA] is not one of the requirements which can be rectified, in accordance with Article 36 of those rules. 34. It follows that, in not inviting the appellant to rectify or complete her application, the [OSCURATO:PERSONA] has not committed any procedural irregularity. 35. Secondly, the appellant also failed to demonstrate in what way the refusal by the [OSCURATO:PERSONA] to have a second round of pleadings infringed Article 76 of its Rules of Procedure or any other provision of those rules. She merely states that the refusal to have a second round of pleadings ‘deprived [her of] the chance to make right’ what caused the action to be held to be inadmissible. It must be recalled that Article 76 of the Rules of Procedure of the [OSCURATO:PERSONA] expressly states that, where an action is, in whole or in part, manifestly inadmissible or manifestly lacking any foundation in law, the [OSCURATO:PERSONA] may, ‘by reasoned order, give a decision on the action without taking further steps in the proceedings’. In any event, in accordance with Article 41 of the Rules of Procedure of the [OSCURATO:PERSONA], the latter ‘may’ decide that a second exchange of written pleadings is necessary to supplement the documents before the [OSCURATO:PERSONA]. 36. The appellant cannot therefore criticise the [OSCURATO:PERSONA] for having refused a second exchange of pleadings. 37. Thirdly, the appellant merely states that ‘the principle of the public character of the procedure’, which entails the holding of a public hearing, ‘is provided for by the Rules of Procedure of the [OSCURATO:PERSONA] and by Article 6(1) of [the ECHR]’ without, however, supporting that assertion. 38. It is clear from the very wording of Article 76 of the Rules of Procedure of the [OSCURATO:PERSONA] that applicants do not have a right to a hearing which cannot be derogated from (see, by analogy, order of 8 July 1999 in Goldstein v [OSCURATO:PERSONA] , C-199/98 P, EU:C:1999:379, paragraph 18, and judgment of 8 September 2008 in Kerstens v [OSCURATO:PERSONA] , T-222/07 P, ECR-SC, EU:T:2008:314, paragraph 33). 39. Whilst it is true that Article 6(1) of the ECHR provides that everyone is entitled to a public hearing, that principle is not absolute. [OSCURATO:PERSONA] of Justice has held that that option of dispensing with the oral procedure does not prejudice the right to a proper and effective judicial process, since that option is applicable to cases in which it is clear that the [OSCURATO:PERSONA] has no jurisdiction to take cognisance of the action, or where the action is manifestly inadmissible or manifestly lacking any foundation in law (judgment in [OSCURATO:PERSONA] v Parliament , cited in paragraph 28 above, EU:C:2009:103, paragraph 36). 40. It follows that the [OSCURATO:PERSONA], in giving its decision in the form of an order without holding a hearing, has not infringed Article 6 of the ECHR, or its own Rules of Procedure, or the right to be heard, or the principle of the public character of the procedure. 41. Finally, the appellant claims that the principle of the impartiality of the [OSCURATO:PERSONA] has been infringed. According to the case-law there are two aspects to the requirement of impartiality. In the first place, the [OSCURATO:PERSONA] must be subjectively impartial, that is to say, none of its members must show bias or personal prejudice, there being a presumption of personal impartiality in the absence of evidence to the contrary. In the second place, the [OSCURATO:PERSONA] must be objectively impartial, that is to say, it must offer guarantees sufficient to exclude any legitimate doubt in this respect (see order of 15 December 2011 in Altner v [OSCURATO:PERSONA] , C-411/11 P, EU:C:2011:852, paragraph 15 and the case-law cited). 42. The appellant has adduced no evidence which might call into question the personal impartiality of the members of the [OSCURATO:PERSONA] or which raises doubts over the impartiality of the [OSCURATO:PERSONA]. 43. The second, third, fourth and fifth grounds of appeal must therefore be rejected as manifestly unfounded. – The sixth ground of appeal, alleging infringement of the first paragraph of Article 21 of the Statute of the [OSCURATO:PERSONA] of Justice and Article 44(1)(c) of the Rules of Procedure of the [OSCURATO:PERSONA] 44. The appellant claims that the [OSCURATO:PERSONA] infringed the first paragraph of Article 21 of the Statute of the [OSCURATO:PERSONA] of Justice and Article 44(1)(c) of the Rules of Procedure of the [OSCURATO:PERSONA] in that it ‘applied, in fact, “a rule of crystallising the legal proceedings” in considering that the application did not contain pleas in law’. 45. [OSCURATO:PERSONA] did not comment on the appellant’s arguments. 46. In the first place, it must be noted that Article 44 of the Rules of Procedure of the [OSCURATO:PERSONA] does not apply to the [OSCURATO:PERSONA], and consequently the applicant cannot rely on a breach of that provision by the [OSCURATO:PERSONA]. 47. In the second place, even assuming that the appellant meant to refer to Article 35(1)(e) of the Rules of Procedure of the [OSCURATO:PERSONA], it must be stated that, in support of her claim that the [OSCURATO:PERSONA], in breach of the first paragraph of Article 21 of the Statute of the [OSCURATO:PERSONA] of Justice and the abovementioned Article 35, applied an alleged ‘rule of crystallising the legal proceedings’, the appellant does not provide any explanation nor any legal argument to show that the [OSCURATO:PERSONA] erred in law by rejecting as being manifestly inadmissible, in paragraphs 15 to 21 of the order under appeal, the claims for annulment of the contested decision. 48. The sixth ground of appeal must therefore be rejected as manifestly unfounded. – The seventh ground of appeal, alleging essentially a distortion of the facts 49. The appellant states that, in the part of the order under appeal headed ‘Factual background to the dispute’, the [OSCURATO:PERSONA] states that she ‘received at the due date the Note of the [OSCURATO:PERSONA] dated 6 September 2011’ announcing the expiry of the employment contract and dealing with the formalities linked to her departure. The appellant maintains that, in the application at first instance, she denied having received that note before 31 October 2011. The appellant is also unsure on what basis the [OSCURATO:PERSONA] was able to indicate that that note ‘reminded’ her that her contract was due to expire and that she could obtain information about the formalities for her departure. 50. [OSCURATO:PERSONA] contests the arguments put forward by the appellant. 51. It is clear from settled case-law that the court at first instance has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts. The appraisal of the facts by the court at first instance does not constitute, save where the evidence put before that court has been fundamentally misconstrued, a point of law which is subject, as such, to review by the [OSCURATO:PERSONA] of Justice or the [OSCURATO:PERSONA] on appeal. Such distortion must be obvious from the documents on the [OSCURATO:PERSONA]’s file, without there being any need to carry out a new assessment of the facts and evidence (see, to that effect, orders of 16 September 1997 in Koelman v [OSCURATO:PERSONA] , C-59/96 P, ECR, EU:C:1997:404, paragraph 31, and of 7 December 2011 in Mioni v [OSCURATO:PERSONA] , T-274/11 P, ECR-SC, EU:T:2011:719, paragraph 18; and judgment of 16 May 2013 in [OSCURATO:PERSONA] v Council , T-281/11 P, ECR-SC, EU:T:2013:252, paragraph 75). 52. According to paragraph 5 of the order under appeal, ‘[b]y note of 6 September 2011, the Director of the [OSCURATO:PERSONA] for “Resources in Headquarters and in Delegations” in the [OSCURATO:PERSONA][OSCURATO:PERSONA] responsible for “Development and Cooperation — EuropeAid” reminded the [appellant] that her contract was due to expire on 9 November 2011 and advised her to contact the relevant department to obtain the information needed in connection with the formalities for her departure’. 53. It is evident that it is not stated in paragraph 5 of the order under appeal, contrary to what the appellant claims, that she ‘received at the due date the note of 6 September 2011’. It refers only to the date of the note without alluding to the date the appellant received that note. The appellant has therefore failed to establish that the note was not dated 6 September 2011. 54. Moreover, paragraph 5 of the order under appeal must be read in conjunction with the preceding paragraph 4, so that the note of 6 September 2011 did in fact ‘remind’ the appellant of what she had already been told orally on 27 July 2011, as is, moreover, expressly stated in paragraph 2 of the application at first instance. 55. In any event, the appellant does not draw any legal inference from the alleged distortion (see, to that effect, judgments of 9 September 2010 in Andreasen v [OSCURATO:PERSONA] , T-17/08 P, ECR-SC, EU:T:2010:374, paragraph 76, and of 24 October 2011 in P v Parliament , T-213/10 P, ECR-SC, EU:T:2011:617, paragraph 57). 56. The seventh ground of appeal must therefore be rejected as manifestly unfounded. – The eighth ground of appeal, alleging that the [OSCURATO:PERSONA] erroneously ordered the appellant to pay the costs 57. The appellant criticises the [OSCURATO:PERSONA] for having ordered her to pay the costs, since it did not rule on the merits of the action and there was in fact no legal argument or hearing. According to the appellant, that order to pay costs aggravated the penalty of having her action dismissed as being inadmissible at a time when she had become financially dependent as a result of the termination of her contract of employment. The appellant then cites Article 89(6) of the Rules of Procedure of the [OSCURATO:PERSONA], according to which ‘where a case does not proceed to judgment, the costs shall be in the discretion of the [[OSCURATO:PERSONA]] [OSCURATO:PERSONA]’. 58. [OSCURATO:PERSONA] did not comment on the appellant’s arguments. 59. It is apparent from Article 11(2) of Annex I to the Statute of the [OSCURATO:PERSONA] of Justice that no appeal may lie regarding only the amount of the costs or the party ordered to pay them. It follows that, where all the other grounds put forward in an appeal have been rejected, any ground challenging the decision of the [OSCURATO:PERSONA] on costs must be rejected as being inadmissible (see order of 9 September 2009 in Nijs v [OSCURATO:PERSONA] of Auditors , T-375/08 P, ECR-SC, EU:T:2009:321, paragraph 71 and the case-law cited). 60. In the present case, all the grounds relied on by the appellant in support of her claim that the order under appeal be set aside have been dismissed, as is clear from paragraphs 17 to 56 above. 61. It follows that the eighth ground of appeal must be rejected as being manifestly inadmissible. The claim that the [OSCURATO:PERSONA] should review of its own motion any other infringement of the applicable rules of law which the [OSCURATO:PERSONA] might have committed 62. It is clear from Article 138(1)(c) of the Rules of Procedure of the [OSCURATO:PERSONA] that it is for the appellant to present in the appeal ‘the pleas in law and legal arguments relied on’. 63. According to settled case-law, it is clear from Article 11 of Annex I to the Statute of the [OSCURATO:PERSONA] of Justice and Article 138(1)(c) of the Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, to that effect, judgment of 16 December 2010 in Lebedef v [OSCURATO:PERSONA] , T-52/10 P, ECR-SC, EU:T:2010:543, paragraph 35, and order of 13 January 2014 in Lebedef v [OSCURATO:PERSONA] , T-116/13 P and T-117/13 P, ECR-SC, EU:T:2014:21, paragraph 23). 64. In the present case, the appellant merely sets out the head of claim in an abstract manner without supporting it with specific information, in particular relating to the rules of law which the [OSCURATO:PERSONA] is alleged to have infringed. 65. This head of claim must therefore be rejected as being manifestly inadmissible. The claim that the [OSCURATO:PERSONA] should ‘re-judge the case’ and uphold the appellant’s claims 66. Since the claim that the order under appeal be set aside has been rejected, the head of claim that the [OSCURATO:PERSONA] should ‘re-judge the case’ and uphold the appellant’s claims set out at first instance must also be rejected. 67. Even assuming that the present head of claim had been formulated independently of the claim to have the order under appeal set aside, it must be observed that, in accordance with settled case-law, in an appeal the jurisdiction of the [OSCURATO:PERSONA] is in principle confined to review of the findings of law on the pleas argued at first instance (see, by analogy, judgments of 11 November 2004 in Ramondín and Others v [OSCURATO:PERSONA] , C-186/02 P and C-188/02 P, ECR, EU:C:2004:702, paragraph 60, and of 22 June 2006 in Storck v OHIM , C-25/05 P, ECR, EU:C:2006:422, paragraph 61). 68. An appeal which merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the [OSCURATO:PERSONA] amounts in reality to no more than a request for re-examination of the application submitted to the [OSCURATO:PERSONA], which the [OSCURATO:PERSONA] does not have jurisdiction to undertake (see, to that effect, order of 4 April 2011 in Marcuccio v [OSCURATO:PERSONA] , T-239/09 P, ECR-SC, EU:T:2011:138, paragraph 62). 69. In the present case, in the application initiating the appeal, the appellant puts forward a number of arguments intended to prove that the [OSCURATO:PERSONA] infringed, in particular, the provisions of the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA] and the Conditions of Employment of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], which leads her to repeat the arguments she made before the [OSCURATO:PERSONA]. 70. As regards the complaints and arguments submitted for the first time before this [OSCURATO:PERSONA], these must be rejected as manifestly inadmissible. To allow a party to put forward for the first time before the [OSCURATO:PERSONA] a complaint which it has not raised before the [OSCURATO:PERSONA] would be to allow it to bring before the [OSCURATO:PERSONA], whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the [OSCURATO:PERSONA] (see, by analogy, judgments in Ramondín and Others v [OSCURATO:PERSONA] , cited in paragraph 67 above, EU:C:2004:702, paragraph 60, and in Storck v OHIM , cited in paragraph 67 above, EU:C:2006:422, paragraph 61). 71. It follows that this head of claim must be rejected as being manifestly inadmissible. 72. It follows from all of the foregoing that this appeal must be dismissed as in part manifestly inadmissible and in part manifestly unfounded. Costs 73. In accordance with the first paragraph of Article 148 of the Rules of Procedure of the [OSCURATO:PERSONA], where the appeal is unfounded, the [OSCURATO:PERSONA] shall make a decision as to costs. 74. Under the first subparagraph of Article 87(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 144 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 75. Since the appellant has been unsuccessful in her submissions in the appeal and the [OSCURATO:PERSONA] has applied for an order that she pay the costs of the proceedings, the appellant shall bear her own costs and pay those incurred by the [OSCURATO:PERSONA] in the present proceedings. [OSCURATO:PERSONA] part On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Dismisses the appeal; 2. Orders BT to bear her own costs and to pay those incurred by the [OSCURATO:PERSONA] in the present proceedings. Luxembourg, 7 October 2014.
Sentenza Corte di giustizia UE/2014 — Fons Iuris — Fons Iuris