29 August 2023 (*)

(Civil service – Officials – Article 42c of the Staff Regulations – Leave in the interests of the service – Withdrawal of rights and privileges – Categorisation as a complaint – Article 90 of the Staff Regulations – Lodging of a second complaint – Time limit for bringing proceedings – Inadmissibility)

In Case T‑633/22,

LD,

represented by H. Tettenborn, lawyer,

applicant,

European Union Intellectual Property Office (EUIPO),

represented by A. Lukošiūtė, acting as Agent,

defendant,

THE GENERAL COURT (Fourth Chamber),

composed of R. da Silva Passos, President, S. Gervasoni (Rapporteur) and I. Reine, Judges,

Registrar: V. Di Bucci,

having regard to the written part of the procedure,

makes the following

By her action based on Article 270 TFEU, the applicant, LD, seeks (i) annulment of the decision of the European Union Intellectual Property Office (EUIPO) of 1 December 2021 rejecting her requests made by letters of 8 August and 12 November 2021 for her rights and privileges to be maintained during the period while she is on leave in the interests of the service, and annulment of any implied decision of EUIPO relating to those requests, (ii) an order that EUIPO take the measures necessary to maintain those rights and privileges, and (iii) compensation for the damage she claims to have suffered.

Background to the dispute

The applicant entered the service of EUIPO on 1 April 1997 and became an official at that agency on 16 December 2001.

On 2 June 2020, EUIPO invited staff to express their interest in being placed on leave in the interests of the service, pursuant to Article 42c of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).

On 7 June 2020, the applicant submitted a request to be placed on leave in the interests of the service to the Director of Human Resources of EUIPO. By email of 15 July 2020, the Executive Director of EUIPO granted her request and informed the applicant that her last day of work would be 31 December 2020.

By email of 29 September 2020, EUIPO asked that the applicant, with regard to the end of her employment, provide it with additional information and, in particular, to return her accreditation card and that of her husband, her vehicle registration certificate and her registration plates.

By ‘note verbale’ dated 7 January 2021, which was brought to the applicant’s attention on 6 July 2021, EUIPO informed the Spanish Ministry of Foreign Affairs, European Union and Cooperation that the applicant had left the service of EUIPO and asked it to change her registration plates.

By ‘note verbale’ of 25 January 2021, EUIPO, first, informed the Spanish Ministry of Foreign Affairs, European Union and Cooperation that the applicant had been placed on leave in the interests of the service and that it had not been able to recover the accreditation cards of the applicant and her husband, and second, asked that ministry to deactivate those accreditation cards.

By ‘note verbale’ of 16 February 2021 addressed to EUIPO, the Spanish Ministry of Foreign Affairs, European Union and Cooperation asked EUIPO to return those accreditation cards.

Several emails were exchanged between the applicant and EUIPO between March and June 2021.

On 29 June 2021, at the applicant’s request, EUIPO sent the applicant the ‘notes verbales’ of 25 January 2021 and 16 February 2021 relating to her personal situation and the accreditation cards.

By email of 29 June 2021, the applicant asked EUIPO to take a formal decision based on Article 90(1) of the Staff Regulations regarding, in essence, the withdrawal of the accreditation cards.

On 14 July 2021, an email was sent by the Director of Human Resources of EUIPO to the Staff Committee concerning the applicant’s situation, which was brought to the applicant’s attention on 19 July 2021 (‘the email of 14 July 2021’). By that email, the Director of Human Resources asserted that her statement did not concern the applicability of Protocol (No 7) on the privileges and immunities of the European Union (OJ 2010 C 83, p. 266; ‘Protocol No 7’) to persons no longer on the list of accredited staff. That director maintained that she had informed the Spanish Ministry of Foreign Affairs, European Union and Cooperation that the applicant had been placed on leave in the interests of the service, which had led that ministry to request the return of the accreditation cards. Lastly, by that email of 14 July 2021, the Director of Human Resources stated that she had informed the applicant of the formalities to be completed in order to continue residing in Spanish territory.

By letter of 26 July 2021, the Director of Human Resources replied to the applicant’s request of 29 June 2021 (‘the letter of 26 July 2021’). After recalling the relevant provisions of the Headquarters Agreement concluded on 20 September 2011 between the Kingdom of Spain and the European Union (Office for Harmonisation in the Internal Market) (‘the Seat Agreement’), she stated that EUIPO was not competent to adopt decisions on the issue and withdrawal of accreditation cards. She suggested that the applicant contact the Spanish Ministry of Foreign Affairs, European Union and Cooperation herself and stated that she remained at the applicant’s disposal in order to send a ‘note verbale’ to that ministry on her behalf.

By letter of 8 August 2021, the applicant, ‘pursuant to Article 90.2 of the Staff Regulations’, submitted ‘a complaint’ against EUIPO’s ‘decision’ in the email of 14 July 2021 and, in the alternative, against EUIPO’s interpretation of Article 42c of the Staff Regulations (‘the letter of 8 August 2021’). Lastly, by that letter of 8 August 2021, the applicant requested the reimbursement of the costs incurred as a result of ‘[EUIPO’s] mistake’.

The letter of 8 August 2021 was supplemented by a letter from the applicant’s lawyer dated 12 November 2021 (‘the supplement of 12 November 2021’), in which that representative asked EUIPO, in the context of proposing an amicable settlement, to correct its ‘erroneous measures’ and inform the Spanish Ministry of Foreign Affairs, European Union and Cooperation that the applicant was still an official of EUIPO and had to retain, in that capacity, her accreditation card and the other privileges guaranteed by Protocol No 7.

By decision of 1 December 2021, EUIPO rejected the ‘complaint’ made by the applicant in the letter of 8 August 2021.

On 2 March 2022, the applicant filed a complaint under Article 90(2) of the Staff Regulations against the decision of 1 December 2021. That complaint was rejected by EUIPO’s decision of 28 June 2022.

Forms of order sought

The applicant claims, in essence, that the Court should:

–annul EUIPO’s decision of 1 December 2021 in so far as it rejects the applicant’s requests set out in the letter of 8 August 2021 and in the supplement of 12 November 2021, and annul any implied decision of EUIPO rejecting those requests, pursuant to the third sentence of Article 90(1) of the Staff Regulations;

–order EUIPO to correct ‘its erroneous measures’, as set out in the supplement of 12 November 2021, and to inform the Spanish Ministry of Foreign Affairs, European Union and Cooperation that she is still an official of EUIPO with all the rights and privileges provided for in the Staff Regulations, Protocol No 7 and the Seat Agreement;

–order EUIPO to issue amended information to the Spanish Ministry of Foreign Affairs, European Union and Cooperation so that that ministry can rectify its unlawful approach and decisions as soon as possible;

–order EUIPO to ensure that it uses all the ‘factual and legal means’ vis-à-vis the Spanish Ministry of Foreign Affairs, European Union and Cooperation in order to retain or restore all her privileges under the Staff Regulations, Protocol No 7 and the Seat Agreement;

–annul EUIPO’s decision of 1 December 2021, in so far as it rejects the applicant’s claim for damages made in the letter of 8 August 2021;

–order EUIPO to pay her the sum of EUR 7 500 by way of compensation for the material damage which she claims to have suffered and to compensate her for the non-material damage allegedly suffered;

–order EUIPO to pay the costs.

EUIPO contends that the Court should:

–dismiss the action as inadmissible or, in the alternative, as unfounded;

–order the applicant to pay the costs.

By separate document lodged at the Registry of the General Court on 5 June 2023, EUIPO submitted an application for a declaration that there is no need to adjudicate, pursuant to Article 130(2) of the Rules of Procedure of the General Court.

In her observations of 3 July 2023, the applicant claims that the General Court should dismiss the application for a declaration that there is no need to adjudicate.

Law

Under Article 129 of the Rules of Procedure of the General Court, on a proposal from the Judge-Rapporteur, the Court may at any time of its own motion, after hearing the main parties, decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case. Furthermore, under Article 126 of the Rules of Procedure, where it is clear that the Court has no jurisdiction to hear and determine an action, the Court may at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

In the present case, the Court considers that it has sufficient information available to it from the material in the file, containing all the information necessary for it to give a decision by reasoned order without taking further steps in the proceedings.

The second, third and fourth heads of claim, requesting that the Court order EUIPO to adopt certain measures

EUIPO argues that the action, in so far as it asks the Court to order EUIPO to adopt certain measures, is inadmissible since the Courts of the European Union have no jurisdiction to issue directions to the administration.

In that regard, it must be borne in mind that, when exercising judicial review of legality under Article 91 of the Staff Regulations and Article 270 TFEU, the Court does not have jurisdiction to issue directions against the institutions, bodies, offices and agencies of the European Union (see order of 26 October 1995, Pevasa and Inpesca v Commission, C‑199/94 P and C‑200/94 P, EU:C:1995:360, paragraph 24 and the case-law cited; judgment of 14 December 2022, SY v Commission, T‑312/21, EU:T:2022:814, paragraph 31; see also, to that effect, judgment of 21 December 2022, EWC Academy v Commission, T‑330/21, EU:T:2022:854, paragraph 23 and the case-law cited). In the present case, the second, third and fourth heads of claim request that the Court issue such directions against EUIPO. Consequently, those heads of claim must be rejected on the ground that the Court manifestly lacks jurisdiction to hear and determine them.

The first and fifth heads of claim

In its defence, EUIPO raises a plea of inadmissibility alleging that the claim seeking annulment of the decision of 1 December 2021 is out of time. EUIPO argues, in the first place, that the email of 29 June 2021 constitutes a request pursuant to Article 90(1) of the Staff Regulations. In the second place, EUIPO submits that the letter of 8 August 2021 and the supplement of 12 November 2021 constitute a complaint, within the meaning of Article 90(2) of the Staff Regulations, against the letter of 26 July 2021, by which EUIPO rejected the applicant’s request of 29 June 2021. Therefore, an action for annulment rather than a new complaint should have been lodged against EUIPO’s decision of 1 December 2021.

The applicant contends that, by the letter of 8 August 2021 and the supplement of 12 November 2021, she asked EUIPO, for the first time, to take a decision on certain matters, on the basis of Article 90(1) of the Staff Regulations. Therefore, the letter of 2 March 2022 constitutes a first complaint, directed against the decision of 1 December 2021. The action is therefore admissible.

In response to a written question put by the Court in respect of EUIPO’s plea of inadmissibility set out in paragraph 26 above, the applicant stated that the purpose of the letter of 8 August 2021 and the supplement of 12 November 2021 differs from that of the email of 29 June 2021. According to the applicant, the purpose of the email of 29 June 2021 was to request that EUIPO, on the basis of Article 90(1) of the Staff Regulations, adopt a decision as regards the accreditation cards, whereas the subsequent letters had the purpose of requesting that EUIPO correct its erroneous measures and inform the Spanish Ministry of Foreign Affairs, European Union and Cooperation that the applicant was still an official of EUIPO and had to retain, in that capacity, her accreditation card and the other privileges guaranteed by Protocol No 7.

In that regard, it is important, first, to bear in mind that, according to settled case-law, the admissibility of an action brought before the Court under Article 270 TFEU and Article 91 of the Staff Regulations depends upon the pre-litigation procedure being conducted in the proper manner and upon the prescribed time limits for that procedure being complied with (see judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 64 and the case-law cited).

Furthermore, under the first indent of Article 91(3) of the Staff Regulations, an appeal must be lodged within three months of the date of notification of the decision taken in response to the complaint.

Second, it is for the Court to attach a precise legal classification to the documents addressed by an official to the appointing authority prior to bringing proceedings and identify which of those documents constitutes the complaint required by the Staff Regulations, without being bound by the parties’ classification of those documents, that being a matter for the Court alone (see, to that effect, order of 7 June 1991, Weyrich v Commission, T‑14/91, EU:T:1991:28, paragraph 39, and judgment of 11 December 2007, Sack v Commission, T‑66/05, EU:T:2007:370, paragraph 36).

Third, an act of the appointing authority adversely affecting an official may form the subject matter of only a single complaint, brought against it by the official concerned. Other documents which that official might address to the appointing authority after lodging the complaint, even if characterised as ‘complaints’, cannot constitute either requests or complaints but must be regarded as purely reiterative of the complaint and cannot therefore prolong the pre-litigation procedure (see judgment of 11 December 2007, Sack v Commission, T‑66/05, EU:T:2007:370, paragraph 37 and the case-law cited).

A letter from an official which does not expressly request the withdrawal of the decision in question but is clearly intended to achieve an amicable settlement of his or her complaints or clearly expresses the applicant’s will to challenge the decision which adversely affects him or her constitutes a complaint (judgment of 16 June 2021, Lucaccioni v Commission, T‑316/19, EU:T:2021:367, paragraph 64 (not published); see also, to that effect, orders of 7 June 1991, Weyrich v Commission, T‑14/91, EU:T:1991:28, paragraph 39, and of 15 July 1993, Hogan v Parliament, T‑115/92, EU:T:1993:71, paragraph 36 and the case-law cited).

Fourth, it must be borne in mind that, according to the case-law, an applicant is adversely affected, for the purposes of Article 90(2) of the Staff Regulations, 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 (see judgment of 18 June 2020, Commission v RQ

C‑831/18 P, EU:C:2020:481, paragraph 44 and the case-law cited). In addition, a measure, in order to be categorised as an act adversely affecting a person, must be issued by the competent authority and contain a definitive position adopted by the administration with regard to the individual situation of the applicant (see order of 10 February 2022, TO v EEA, T‑434/21, not published, EU:T:2022:72, paragraph 27 and the case-law cited).

In the present case, it is not in dispute between the parties that, in the email of 14 July 2021, which was brought to the applicant’s attention on 19 July 2021, EUIPO took the view that the placing of the applicant on leave in the interests of the service pursuant to Article 42c of the Staff Regulations entailed the end of the employment relationship between the applicant and EUIPO. In addition, it must be stated that, by her email of 29 June 2021, the applicant requested that EUIPO take a formal decision based on Article 90(1) of the Staff Regulations concerning the withdrawal of the accreditation cards, in the event of a negative response by EUIPO to the Staff Committee’s proposal concerning the applicant’s situation. It was in that context that, by its letter of 26 July 2021, EUIPO replied to the applicant, stating that it was not competent to issue and withdraw accreditation cards. In doing so, EUIPO not only rejected the applicant’s request of 29 June 2021, but also implicitly but necessarily took the view that it would not reconsider the position it had expressed in the email of 14 July 2021, thus definitively establishing that position with regard to the applicant’s individual situation.

Thus, it must be stated that the letter of 26 July 2021, which definitively establishes EUIPO’s position with regard to the applicant in respect of the end of her employment relationship and the need to return the accreditation cards, constitutes a decision within the meaning of Article 90(1) of the Staff Regulations which may be the subject of a complaint within the meaning of paragraph 2 of that provision.

Furthermore, although the letter of 8 August 2021 does not formally claim that EUIPO’s decision contained in its letter of 26 July 2021 should be annulled, it makes apparent the applicant’s unambiguous will to challenge EUIPO’s interpretation of Article 42c of the Staff Regulations, as follows in particular from the position adopted by EUIPO in the email of 14 July 2021, definitively established with regard to the applicant by the decision contained in the letter of 26 July 2021.

In particular, the letter of 8 August 2021 is presented as a complaint made ‘pursuant to Article 90.2 of the Staff Regulations’ against the decision taken by EUIPO on 14 July 2021 in the form of an email sent by the Director of Human Resources to the Staff Committee, brought to the applicant’s attention on 19 July 2021, and, in the alternative, against EUIPO’s interpretation of Article 42c of the Staff Regulations.

In addition, in the letter of 8 August 2021, the applicant disputes, point by point, the elements of the position adopted by EUIPO in the email of 14 July 2021. By that letter of 8 August 2021, the applicant expressly disputes EUIPO’s interpretation of Article 42c of the Staff Regulations, according to which the placing on leave in the interests of the service would entail the termination of her employment and the loss of her status as an official, and the information sent by EUIPO to the Spanish Ministry of Foreign Affairs, European Union and Cooperation.

The letter of 8 August 2021 must, moreover, be read in the light of the email of 29 June 2021 in which the applicant asked EUIPO to take a decision, on the basis of Article 90(1) of the Staff Regulations, regarding the accreditation cards. By that email, the applicant requested that EUIPO ‘issue a formal decision in respect of this matter that is subject to a possible Article 90 [of the Staff Regulations] appeal’.

The letter of 8 August 2021 follows, inter alia, the letter of 26 July 2021, which replied to the applicant’s request of 29 June 2021. Thus, by challenging, in that letter of 8 August 2021, EUIPO’s interpretation of Article 42c of the Staff Regulations, the applicant unequivocally called into question EUIPO’s position in that regard, including the position that was adopted in the email of 14 July 2021 and definitively established, with regard to the applicant, by the decision contained in the letter of 26 July 2021.

It is true, as the applicant states, that EUIPO took the view, in the letter of 26 July 2021, that it had no legal basis for adopting a decision under Article 90(1) of the Staff Regulations. Nevertheless, that statement relates to the withdrawal and return of the accreditation cards, which come exclusively within the competence of the Spanish authorities, which is common ground between the parties, and did not call into question EUIPO’s consistent position regarding the consequences of placing the applicant on leave in the interests of the service, adopted in particular in the email of 14 July 2021. The applicant had no doubts as regards the scope of that position when she criticised its legality in the letter of 8 August 2021, which she herself presented and structured as a complaint, as is apparent from paragraphs 38 and 39 above.

Thus, by that letter of 8 August 2021, the applicant sought to challenge EUIPO’s interpretation of Article 42c of the Staff Regulations and its consequences for the accreditation cards, a position reflected several times, in particular in the ‘notes verbales’ of 7 and 25 January 2021, in the email of 14 July 2021, and definitively established, with regard to the applicant, in the letter of 26 July 2021. Therefore, in accordance with the case-law cited in paragraph 33 above, the letter of 8 August 2021 constitutes a complaint within the meaning of Article 90(2) of the Staff Regulations rather than a request, within the meaning of Article 90(1) of the Staff Regulations, by the applicant for EUIPO to adopt a formal position on her situation and her rights.

Furthermore, without it being necessary to rule on whether the supplement of 12 November 2021 is out of time, it must be stated that that categorisation of the letter of 8 August 2021 is not called into question by the applicant’s argument that EUIPO was requested for the first time, by that letter and the supplement of 12 November 2021, to take measures vis-à-vis the Spanish Ministry of Foreign Affairs, European Union and Cooperation, that is to say, in particular, ‘to issue amended information to the [Spanish Ministry of Foreign Affairs, European Union and Cooperation] in order that the matter can be rectified as soon as possible’. In that letter, the applicant expressly and clearly challenged ‘[EUIPO’s] position’, calling into question EUIPO’s interpretation of Article 42c of the Staff Regulations, requesting EUIPO to reconsider it and bring it to the attention of the Spanish authorities.

It follows from the foregoing that the letter of 8 August 2021 cannot be regarded as a first request, within the meaning of Article 90(1) of the Staff Regulations, having a different scope from that of the request submitted on 29 June 2021.

It must be added that the letter of 1 December 2021 cannot be interpreted as revealing new facts capable, as such, of allowing the initiation of a new pre-litigation procedure that is distinct from that initiated by the letter of 8 August 2021. On the contrary, the letter of 1 December 2021 constitutes a reasoned rejection of the complaint made by the applicant in the letter of 8 August 2021.

Since the decision of 1 December 2021 is a decision rejecting a complaint within the meaning of Article 90(2) of the Staff Regulations, its notification triggered the start of the three-month period for lodging an appeal under Article 91(3) of the Staff Regulations, not against that decision but, as stated in Article 91(1) of the Staff Regulations, against the decision which gave rise to that complaint, namely the decision of 26 July 2021. It must be stated, in any event, that the present action, brought on 10 October 2022, post-dates the expiry of that period for lodging an appeal, since the new complaint made on 2 March 2022 did not, for the reasons set out in paragraph 32 above, have the effect of prolonging that period.

It follows that the present action, which was brought more than three months after the notification of the decision explicitly rejecting the applicant’s complaint, must be dismissed as inadmissible in so far as it seeks, by its first and fifth heads of claim, annulment of EUIPO’s decision of 1 December 2021, on the ground that it is out of time.

Moreover, in so far as it follows from the foregoing that the letter of 1 December 2021 constitutes the express reply to the complaint contained in the letter of 8 August 2021 and to the supplement of 12 November 2021, and that that letter predates the expiry of the period of four months laid down in Article 90(2) of the Staff Regulations at the end of which an implied decision rejecting the complaint may be deemed to exist, no implied decision could be deemed to exist in response to the letter of 8 August 2021 or the supplement of 12 November 2021. Accordingly, the first head of claim, in so far as it seeks the annulment of such implied decisions, must be rejected.

The sixth head of claim, relating to the claims for damages

The applicant makes two claims for damages. She claims that EUIPO should be ordered, first, to pay her the sum of EUR 7 500 by way of compensation for the material damage which she claims to have suffered, and second, to compensate her for the non-material damage she alleges to have suffered.

It should be recalled that, according to settled case-law concerning civil service proceedings, where a claim for damages is closely linked with an application for annulment, the rejection of the latter, either as inadmissible or as unfounded, also results in the rejection of the claim for damages (see judgments of 30 September 2003, Martínez Valls v Parliament, T‑214/02, EU:T:2003:254, paragraph 43 and the case-law cited, and of 16 October 2019, Palo v Commission, T‑432/18, EU:T:2019:749, paragraph 73 and the case-law cited).

When questioned on that point, the applicant stated that her claims for damages should be treated separately from the application for annulment in the context of the present action. She submitted, in particular, that although the claim for compensation for non-material damage was based on the same infringements of the relevant provisions and of the applicant’s rights, that claim is not closely linked to the application for annulment.

In the present case, it must be stated that the material and non-material damage allegedly suffered by the applicant is the direct consequence of the decision taken by EUIPO concerning the applicant’s rights and privileges, definitively established with regard to the applicant in the letter of 26 July 2021. The ‘mistake’ referred to by the applicant relates to the alleged misinterpretation of Article 42c of the Staff Regulations in that decision (see paragraph 37 above).

In so far as the claims for annulment seeking, in essence, to challenge EUIPO’s decision must be rejected as inadmissible, as has been established in paragraph 48 above, the claims for damages, which are closely linked to those former claims, must also be rejected.

It follows from all of the foregoing that the present action must be dismissed, in part, as having been brought before a court that has no jurisdiction to deal with it and, as to the remainder, as inadmissible without there being any need to rule on EUIPO’s application for a declaration that there is no need to adjudicate (see, to that effect, orders of 9 July 2003, Commerzbank v Commission, T‑219/01, EU:T:2003:201, paragraph 73, and of 13 November 2012, ClientEarth and Others v Commission, T‑278/11, EU:T:2012:593, paragraph 29).

Costs

Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.

On those grounds,

hereby orders:

1.The action is dismissed.

2.LD shall pay the costs.

Luxembourg, 29 August 2023.

Registrar

President

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Language of the case: English.