Judgment of the Court (Fifth Chamber) of 12 March 2026. – VP v European Centre for the Development of Vocational Training.

1

By her appeal, VP seeks to have set aside the judgment of the General Court of the European Union of 7 February 2024, VP v Cedefop (T‑563/22, the judgment under appeal, EU:T:2024:72), by which the General Court dismissed her action seeking, first, the annulment of the decision of the Executive Director of the European Centre for the Development of Vocational Training (Cedefop) of 17 December 2021 (‘the contested decision’) and the decision of Cedefop’s Appeals Committee of 17 June 2022 (‘the decision rejecting the complaint’) and, second, payment of compensation of EUR 100000 for the non-material damage she claims to have suffered. In addition, VP is seeking an order that Cedefop pay her EUR 5000000 as compensation for the non-material damage she claims to have suffered.

2

The background to the dispute, which was set out by the General Court in paragraphs 2 to 15 of the judgment under appeal, can be summarised as follows.

3

The appellant was recruited by Cedefop on 16 November 2007 as a member of the temporary staff to perform the duties of Legal Advisor. Her contract was renewed until 15 November 2017.

4

On 10 March 2017, the appellant submitted to Cedefop’s Executive Director a request for the renewal of her contract under Article 90(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), applicable to members of the temporary staff under Article 46 of the Conditions of Employment of Other Servants of the European Union (‘the contract renewal request’).

5

By decision of 12 May 2017, Cedefop’s Executive Director refused that request and informed the appellant that her contract would not be renewed.

6

By decision of 1 December 2017, Cedefop’s Appeals Committee (‘the Appeals Committee’) rejected the appellant’s complaint against the decision of 12 May 2017.

7

By judgment of 16 December 2020, VP v Cedefop (T‑187/18, the annulment judgment, EU:T:2020:613), the General Court annulled the decision of 12 May 2017 (point 1 of the operative part) and the decision of 1 December 2017 (point 2 of the operative part) (together, ‘the annulled decisions’). The General Court also ordered Cedefop to pay EUR 30000 as compensation for the material damage caused to the appellant (point 3 of the operative part), and EUR 10000 as compensation for the non-material damage caused to her (point 4 of the operative part). The General Court dismissed the action as to the remainder (point 5 of the operative part) and ordered Cedefop to pay the costs (point 6 of the operative part).

8

It is apparent from the grounds of the annulment judgment that the General Court found that the decision of 12 May 2017 was vitiated by a manifest error of assessment in that it justified that measure on the basis of the proposed abolition of Cedefop’s Legal Service. In addition, the General Court found that it could not be ruled out that that decision may have been based on a distinct ground relating to the loss of trust in the appellant on the part of Cedefop’s Executive Director. It held that that decision, in so far as it was based on that loss of trust, had been adopted in breach of the right to be heard, the rights of the defence and Article 26 of the Staff Regulations.

9

On 8 January 2021, the appellant invited Cedefop to implement the annulment judgment, in accordance with Article 266 TFEU (‘the request for implementation of the annulment judgment’). In that respect, she requested that Cedefop renew her contract for an indefinite period from 16 November 2017.

10

By letter of 2 March 2021, the Executive Director of Cedefop at that time replied to the appellant, stating that the implementation of the annulment judgment required only the payment of EUR 40000 as compensation for the material and non-material damage caused to the appellant, together with costs, since the effects of the unlawfulness found by the General Court would be reversed by the payment of that compensation.

11

On 28 April 2021, the appellant submitted a complaint under Article 90(2) of the Staff Regulations against that decision of 2 March 2021. She again claimed that Cedefop had not complied with points 1 and 2 of the operative part of the annulment judgment.

12

On 29 July 2021, the Chairman of the Appeals Committee sent the appellant a letter stating that that committee had decided, at its meeting of 16 July 2021, to uphold her complaint of 28 April 2021 and to ‘annul’ the decision of 2 March 2021, since the appellant had not had the opportunity to provide comments on that decision.

13

On 7 September 2021, Cedefop’s Executive Director sent the appellant a letter informing her that, having reached a fresh decision, further to the decision of the Appeals Committee referred to in the preceding paragraph, he did not intend to adopt the additional measures requested by the appellant, inter alia in her request for implementation of the annulment judgment, since, in his view, the annulment judgment had already been implemented in full. In order to observe the appellant’s right to be heard, he invited her to submit her observations on that proposed decision.

14

In response to that letter, the appellant submitted her observations on 15 October 2021.

15

By the contested decision, adopted on 17 December 2021, Cedefop’s Executive Director informed the appellant that, since that agency had paid all the amounts ordered by the General Court in the annulment judgment, no additional action was necessary to implement that judgment.

16

On 3 March 2022, the appellant lodged a complaint against that decision, which was rejected by the decision rejecting the complaint.

17

By application lodged at the Registry of the General Court on 2 September 2022, the appellant claimed that the General Court should annul the contested decision and the decision rejecting the complaint, award compensation for the non-material damage she claims to have suffered as a result of those decisions, and order Cedefop to pay the costs.

18

In support of her claims for annulment, the appellant raised five pleas in law, alleging (i) lack of competence of the Appeals Committee; (ii) infringement of Article 266 TFEU and a manifest error of assessment; (ii) breach of the duty of care; (iii) failure to observe the principles of the protection of legitimate expectations, equal treatment and non-discrimination; and (iv) misuse of power.

19

At the hearing before the General Court, the appellant withdrew the first plea in law.

20

By the judgment under appeal, the General Court rejected the remaining four pleas as unfounded.

21

As regards, in particular, the second plea, alleging infringement of Article 266 TFEU and a manifest error of assessment, after observing, in paragraph 34 of the judgment under appeal, that Cedefop was required, in implementing the annulment judgment, to re-examine the contract renewal request and to take a new decision replacing the annulled decisions, the General Court held, in paragraph 38 of the judgment under appeal, that Cedefop had complied with that obligation, since, as was apparent from the statement of reasons for the decision rejecting the complaint, Cedefop had, when examining the appellant’s complaint, assessed whether that request should be granted and considered, following that examination, that the appellant should not be reinstated for considerations relating to Cedefop’s internal organisation.

22

In paragraphs 43 and 44 of the judgment under appeal, the General Court found, first, that the appellant had not disputed the merits of the reason relating to developments in Cedefop’s internal organisation and, second, that that reason was sufficient in itself to justify the decision not to renew the appellant’s contract.

23

By her appeal, VP claims that the Court of Justice should:

24

Cedefop contends that the Court should:

25

In its response, Cedefop requested, on the basis of Article 151 of the Rules of Procedure of the Court of Justice, that the correspondence in Annex C.1 to the appeal (‘Annex C.1’) be removed from the file.

26

According to Cedefop, Annex C.1, in so far as it contains an email sent on 2 April 2021 reproducing, in the same terms, a letter sent on an unspecified date by its legal counsel to the appellant’s former legal counsel concerning the possibility of entering into discussions between the parties with a view to settling the dispute (‘the letter from Cedefop’s legal counsel’), is, as a whole, covered by the protection of the confidentiality of communications between lawyers under Belgian rules of professional conduct, made binding by the Belgian legislature. Cedefop submits that the protection of the confidentiality of communications between lawyers and clients, recognised by the case-law of the Court of Justice and of the General Court, extends to correspondence between lawyers where the protection of the confidentiality of that correspondence is recognised under national law.

27

The appellant argues that that request is inadmissible on the ground that it was not made by a separate document, contrary to Article 151 of the Rules of Procedure.

28

Furthermore, the appellant contends that the request is unfounded in that, first, the case-law relied on by Cedefop is not relevant to support the alleged ‘attorney-attorney privilege’ and, in any event, the conditions set out in that case-law are not satisfied. Second, Annex C.1 constitutes essential evidence for the purposes of the present appeal.

29

In the first place, it must be pointed out that, as is apparent from Article 151(1) of the Rules of Procedure, it is only where a party applies to the Court for a decision on a preliminary objection or issue not going to the substance of the case that that party must submit the application by a separate document. It follows that Cedefop would have been required to submit its request for the removal of Annex C.1 by separate document only if it had asked the Court to rule on that request without going to the substance of the case, which it did not. Accordingly, the plea of inadmissibility raised by the appellant in respect of that request must be rejected.

30

In the second place, it should be borne in mind that the principle of equality of arms, which is a corollary of the very concept of a fair hearing, guaranteed in particular by Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), requires that each party must be afforded a reasonable opportunity to present his or her case, including his or her evidence, under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent (judgment of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 128 and the case-law cited).

31

Furthermore, the Court has established the principle of the unfettered evaluation of evidence by the EU Courts, from which it follows, inter alia, that the admissibility of evidence produced in good time can be contested before the EU Courts only on the ground that that evidence has been improperly obtained or produced (see, to that effect, judgment of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 129 and the case-law cited).

32

Where it has been established that evidence has been obtained or produced improperly, the EU Courts may declare it admissible only if, after balancing the competing interests, it appears that the interests of the applicant who produced that evidence – having regard, inter alia, to its usefulness for assessing the merits of the action brought by that applicant – outweigh the interests of the opposing party that would be specifically and effectively harmed by its retention in the file (see, to that effect, judgment of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 131).

33

In the present case, it is apparent from Annex C.1 that, first, on 30 March 2021, the appellant’s former legal counsel informed her and her new legal counsel that the letter from Cedefop’s legal counsel was confidential and that, second, the appellant’s former legal counsel did not disclose the terms of that letter to the appellant until after the appellant had informed her, on 1 April 2021, that ‘as a lawyer myself and your client, I reiterate that the information provided remains absolutely confidential’.

34

Given that the appellant had thus herself acknowledged the confidential nature of the content of the letter from Cedefop’s legal counsel and had formally undertaken to respect it, the production, at the stage of the present appeal, of the email reproducing its terms is vitiated by an irregularity.

35

In view of the fact that the General Court did not rely on that letter, or on the email reproducing its terms, in order to justify its decision and that that document does not appear to play a central role in the appellant’s line of argument, the appellant’s interests in having that document retained in the file are not such as to outweigh Cedefop’s interests in ensuring that the confidentiality of that letter is respected.

36

Accordingly, and in view of the fact that the other items in Annex C.1 relate to the context in which the email of 2 April 2021 was sent to the appellant, Cedefop’s request must be granted and Annex C.1 removed from the file.

37

The appellant puts forward nine grounds in support of her appeal.

38

The first ground of appeal alleges distortion of the evidence in the file. The second ground alleges failure to comply with the obligation to examine ex officio whether the Appeals Committee had competence to adopt a decision relating to the implementation of the annulment judgment. The third ground is based on the failure to find that the Appeals Committee lacked such competence. The fourth ground alleges breach of the principle of a ‘tribunal established by law’, recognised in Article 47 of the Charter. The fifth ground alleges lack of jurisdiction to set aside the annulment judgment. The sixth ground alleges infringement of Article 266 TFEU. The seventh ground alleges a failure to have regard to the judgments of 25 October 2013, Commission v Moschonaki (T‑476/11 P, EU:T:2013:557), and of 16 October 2019, ZV v Commission (T‑684/18, EU:T:2019:748). The eighth ground alleges failure to comply with the obligation to state reasons. The ninth ground alleges infringement of the right to be heard, enshrined in Article 47 of the Charter.

39

In her appeal, the appellant also claims that Cedefop should be ordered to pay compensation for the non-material damage she claims to have suffered as a result of that agency’s persistent refusal to comply with the annulment judgment, set ex aequo et bono at EUR 5 million.

40

As set out in Article 169(1) of the Rules of Procedure, ‘an appeal shall seek to have set aside, in whole or in part, the decision of the General Court as set out in the operative part of that decision’. In addition, pursuant to Article 170(1) of those rules, an appeal is to seek, in the event that it is declared well founded, the same form of order, in whole or in part, as that sought at first instance and must not seek a different form of order.

41

In the present case, the second head of claim in the appellant’s appeal seeks an order that Cedefop pay compensation for the non-material damage which the appellant claims to have suffered as a result of that agency’s persistent refusal to comply with the annulment judgment, set ex aequo et bono at EUR 5 million.

42

However, before the General Court, the appellant sought an order that Cedefop pay compensation for the same damage which she then assessed at EUR 100000ex aequo et bono.

43

It follows that the second head of claim in the appellant’s appeal constitutes a new claim, inasmuch as, by that head of claim, the appellant is seeking an award of compensation in an amount exceeding EUR 100000, being the sum sought under the same head in the proceedings at first instance. Therefore, that head of claim is to that extent inadmissible, without prejudice to the possibility for the Court, should the appeal be declared well founded, to exercise the unlimited jurisdiction conferred on the EU Courts in disputes of a financial character by Article 91(1) of the Staff Regulations.

44

By her first ground of appeal, which is directed against paragraphs 22, 37 and 38 of the judgment under appeal, the appellant argues, in essence, that, by finding that the decision rejecting the complaint constituted a decision relating to the implementation of the annulment judgment and, specifically, a decision adopted to replace the annulled decisions, the General Court distorted the evidence in the file, in particular the decision rejecting the complaint.

45

The appellant claims that, in reaching that conclusion, the General Court relied on the fact that, in the decision rejecting the complaint, the Appeals Committee referred to considerations relating to Cedefop’s internal operation. However, according to the appellant, the only reference in that decision to Cedefop’s internal organisation can be found on page 16 of that decision. The appellant disputes that that reference is capable of leading to the conclusion that the Appeals Committee thereby adopted a decision replacing the annulled decisions.

46

Furthermore, there is no document in the file in the present case indicating that Cedefop intended to take, or actually took, a decision to replace the annulled decisions. On the contrary, only Cedefop’s persistent refusal to take such a decision is apparent from the file.

47

Cedefop submits that the General Court was right to point out that, in the decision rejecting the complaint, the Appeals Committee stated that (i) in the annulment judgment, the General Court had not taken a position on the issue of Cedefop’s internal organisation or the recreation of the Legal Service; (ii) the discussions concerning the re-establishment of the post of internal Legal Advisor that were ongoing in 2021 were disconnected from the specific case of the appellant; and (iii) the procedure for recruiting an internal Legal Advisor was directly connected to the outcome of the selection procedure for a new Head of Human Resources.

48

Based on all of those factual elements, which appear on pages 16 and 17 of the decision rejecting the complaint, the Appeals Committee expressly concluded that ‘Cedefop intend[ed] to reorganise the way in which the legal function was working within the agency to mitigate risks without intending to reinstate persons or past working organisations’.

49

Consequently, the Appeals Committee made clear to the appellant that, primarily, it considered that Cedefop was not necessarily bound to re-examine the contract renewal request, since that agency had fully complied with the annulment judgment by paying financial compensation for the entirety of the damage suffered as a result of the annulled decisions, and that, in the alternative, it had nevertheless examined that request and had refused it for the reasons set out in paragraphs 47 and 48 of the present judgment.

50

In her reply, the appellant states that, contrary to what Cedefop repeatedly claimed in the cases giving rise to the order of 20 May 2022, VP v Cedefop (T‑534/21, EU:T:2022:327), and the judgment under appeal, that agency states for the first time, at the appeal stage, that a decision replacing the annulled decisions was adopted, without adducing any evidence to substantiate that assertion.

51

In its rejoinder, Cedefop contends that the General Court did not distort the facts, since it merely referred to the clear terms of the decision rejecting the complaint, without attempting to interpret them.

52

In accordance with settled case-law, there is distortion of the evidence where the General Court has manifestly exceeded the limits of a reasonable assessment of that evidence. That distortion must be obvious from the file, without there being any need to carry out a new assessment of the facts and the evidence. In that regard, it is not sufficient to show that a document could be interpreted differently from the interpretation adopted by the General Court (judgment of 5 March 2024, Kočner v Europol, C‑755/21 P, EU:C:2024:202, paragraph 96 and the case-law cited).

53

In order to determine whether the present ground of appeal is well founded, it should be recalled that, in paragraph 34 of the judgment under appeal, the General Court, on the basis of the case-law cited in paragraphs 31 to 33 of that judgment, concluded that Cedefop was required, in implementing the annulment judgment, to re-examine the contract renewal request and to take a decision replacing the annulled decisions.

54

In that regard, in paragraphs 35 to 38 of the judgment under appeal, the General Court, relying on the parts of the statement of reasons for the decision rejecting the complaint summarised in paragraph 37 of that judgment, held that Cedefop had complied with that obligation, since, in the decision rejecting the complaint, the Appeals Committee had, first, confirmed the conclusion reached by Cedefop’s Executive Director when adopting the contested decision, namely that, following payment of the compensation which that agency had been ordered by the annulment judgment to pay, that judgment had been fully implemented, with the result that Cedefop was not required to take any further action to comply with that judgment, but, secondly, had also re-examined the contract renewal request and refused it on the basis of considerations relating to Cedefop’s internal organisation, thus adopting a decision replacing the annulled decisions. As is apparent from paragraph 43 of the judgment under appeal, according to the General Court, the latter decision was based, in particular, on the fact that Cedefop intended to develop its internal organisation and reorganise the way in which the legal function was carried out within that agency.

55

It thus follows from the paragraphs of the judgment under appeal referred to in the preceding paragraph that, according to the General Court, following the request for implementation of the annulment judgment, Cedefop had, first, refused to act on that request on the ground that it considered that that judgment had already been fully implemented and there was therefore no need to take any additional implementing measures, such as the re-examination of the contract renewal request and, a fortiori, the actual renewal of that contract, and, secondly, had nonetheless acted on that request to a certain extent, in so far as it re-examined the contract renewal request but refused it on the basis of considerations relating to Cedefop’s internal organisation. In so doing, that agency adopted a decision replacing the annulled decisions, which constituted a measure implementing the annulment judgment.

56

It must be stated that a simple reading of the decision rejecting the complaint shows that, as the appellant correctly submits, the considerations set out in paragraph 37 of the judgment under appeal, which led the General Court to find that Cedefop had adopted a decision replacing the annulled decisions, could be extracted only from the part of the statement of reasons for the decision rejecting the complaint contained between the fourth paragraph on page 16 of that decision and the second paragraph on page 17 thereof, by which that committee justified the rejection of the ground of challenge alleging infringement of Article 266 TFEU raised by the appellant in her complaint. It is only in that part of the statement of reasons for the decision rejecting the complaint, which contains a total of four paragraphs (‘the contested part of the statement of reasons’), that reference is made to those considerations.

57

More specifically, it is apparent from the contested part of the statement of reasons that, in order to find, in paragraphs 37, 38 and 43 of the judgment under appeal, that Cedefop had adopted a decision replacing the annulled decisions on the basis of considerations relating to its internal organisation, the General Court necessarily relied solely on the second paragraph on page 17 of the decision rejecting the complaint, which constitutes the fourth and final paragraph of the contested part of the statement of reasons. In that paragraph, the Appeals Committee specifically stated the following: ‘based on a thorough and transparent assessment of the status quo performed in 2021 on the basis of 2020 data, Cedefop intends to reorganise the way the legal function works to mitigate the identified risks without intending to reinstate persons or past working organisations’.

58

However, first, the wording of the second paragraph on page 17 of the decision rejecting the complaint is too imprecise to allow a clear inference that the Appeals Committee is thus proceeding to re-examine the appellant’s contract renewal request and is refusing it, thereby adopting a decision replacing the annulled decisions in order, in the alternative, to comply with the annulment judgment.

59

It is therefore necessary, secondly, to ascertain whether, read in its context, that second paragraph could reasonably be understood to that effect.

60

In that regard, first of all, it must be noted that, in the decision rejecting the complaint, the contested part of the statement of reasons is introduced by the term ‘furthermore’ and appears immediately after the grounds of that decision, set out on pages 14 and 15 thereof, relating to the payment of compensation which Cedefop was ordered to pay by the annulment judgment. In those grounds, the Appeals Committee concluded without reservation that, as was apparent from the contested decision, Cedefop’s implementation of that judgment complied fully with Article 266 TFEU, without any further decisions needing to be taken by that agency.

61

Next, there is nothing in the wording of the first three paragraphs of the contested part of the statement of reasons to suggest that, despite that conclusion, the Appeals Committee intended, in the alternative, to re-examine the contract renewal request and to adopt a decision replacing the annulled decisions and, therefore, to take further action to comply with the annulment judgment.

62

It suffices to note that, first, in the first paragraph of the contested part of the statement of reasons, which corresponds to the fourth paragraph on page 16 of the decision rejecting the complaint, the Appeals Committee merely set out, in essence, the reasons why it considered that it could not be inferred from the annulment judgment that Cedefop was required to reinstate the appellant or to renew her contract. Second, in the second and third paragraphs of the contested part of the statement of reasons, which correspond to the fifth paragraph on page 16 and the first paragraph on page 17, respectively, the Appeals Committee, referring to the findings of Cedefop’s Executive Board of 3 March 2021 concerning the re-establishment of the post of Legal Advisor within that agency (‘the Executive Board’s decision of 3 March 2021’), stated, in essence, that the latter decision was ‘disconnected’ from the specific case of the appellant and from the annulment judgment, which was ‘implemented in full by the payment of the compensation and legal costs’ and that, therefore, ‘there is no question of a contradiction between re-establishing the post and re-instating the [appellant] … or even avoiding the reinstatement of the [appellant] as she alleges’.

63

Lastly, account should be taken of the fact that the contested part of the statement of reasons constitutes the response provided by the Appeals Committee to a specific argument raised before it by the appellant in support of her ground of challenge alleging infringement of Article 266 TFEU. In particular, by that argument, the appellant, taking the view that the proper implementation of the annulment judgment required that her contract be renewed with effect from 16 November 2017, argued that her reinstatement at Cedefop, in compliance with that judgment, would not give rise to any difficulties in terms of the internal organisation of that agency, since, as regards the duties attached to the post of Legal Advisor, the internal organisation remained unchanged from that which existed as at that date. In that regard, the appellant maintained that, by the Executive Board’s decision of 3 March 2021, the adoption of which coincided with the submission of the request for implementation of the annulment judgment, Cedefop had decided to re-establish the post of internal Legal Advisor within that agency. In that context, the appellant claimed that the refusal by Cedefop’s Executive Director to renew her contract and to reinstate her – even though the post of internal Legal Advisor had been re-established following her request for implementation of the annulment judgment and, as a result of the re-establishment of that post, Cedefop’s internal organisation would not be affected by her reinstatement – had no rational justification and demonstrated that such refusal was simply an ad personam decision of that director, thus constituting a misuse of powers.

64

Thus, read in the light of the appellant’s argument, it follows unequivocally from the wording of the first three paragraphs of the contested part of the statement of reasons that, by means of those paragraphs, the Appeals Committee intended to respond to that argument by rejecting the existence of any connection between, on the one hand, the Executive Board’s decision of 3 March 2021 and, on the other, the annulment judgment and the appellant’s request for its implementation, in that that decision was adopted for the purpose of implementing that judgment following that request and the contested decision was taken by Cedefop’s Executive Director for personal reasons, thereby constituting a misuse of powers.

65

Consequently, in the absence of any element in the first three paragraphs of the contested part of the statement of reasons to suggest, even implicitly, that the Appeals Committee intended to depart from its conclusion that the annulment judgment had been fully implemented in accordance with Article 266 TFEU by the payment of the compensation specified in the operative part of that judgment, such that no further implementing measures were necessary – a conclusion which it had just reached and indeed emphasised in the third paragraph of the contested part of the statement of reasons – the second paragraph on page 17 of the decision rejecting the complaint cannot, without distorting its scope, be interpreted as meaning that the Appeals Committee was, in the alternative, re-examining the contract renewal request and adopting a decision replacing the annulled decisions.

66

On the contrary, read in its context, the second paragraph on page 17 can reasonably be understood only as a continuation of the Appeals Committee’s reasoning in response to the appellant’s argument concerning the Executive Board’s decision of 3 March 2021. Accordingly, the considerations relating to Cedefop’s internal organisation relied on by the Appeals Committee appear to constitute an element advanced by that committee aimed at justifying not the non-renewal of the appellant’s contract following a re-examination of her request for renewal, as the General Court held in paragraph 38 of the judgment under appeal, but rather the absence of any connection between, on the one hand, the Executive Board’s decision of 3 March 2021 and, on the other, the annulment judgment and the request for its implementation.

67

Thirdly, the fact that those considerations relating to Cedefop’s internal organisation result, according to the second paragraph of page 17 of the decision rejecting the complaint, from an assessment ‘of the status quo performed in 2021 on the basis of 2020 data’ supports the fact that those considerations are not linked to a re-examination of the contract renewal request, carried out in the implementation of the annulment judgment, since such a re-examination should have been carried out by restoring the situation prevailing on the date of the adoption of the annulled decisions (see, to that effect, judgment of 31 March 1971, Commission v Council, 22/70, EU:C:1971:32, paragraph 60).

68

In the light of the foregoing considerations, it must be held that, in finding that the decision rejecting the complaint constituted a decision relating to the implementation of the annulment judgment and, specifically, a decision taken to replace the annulled decisions, the General Court distorted the evidence in the file, in particular the decision rejecting the complaint.

69

Accordingly, since the first ground of appeal is well founded, the judgment under appeal must be set aside, without it being necessary to examine the second to ninth grounds of appeal.

70

Under the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the appeal is well founded and the Court of Justice has set aside the decision of the General Court, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.

71

In the present case, since the appellant’s action before the General Court was based on pleas that were the subject of an exchange of arguments before the General Court and whose examination does not require any further measure of organisation of procedure or inquiry to be taken in the case, the Court of Justice considers that the state of the proceedings is such that it may give final judgment in the matter and that it should do so (see, by analogy, judgment of 5 March 2024, Kočner v Europol, C‑755/21 P, EU:C:2024:202, paragraph 112 and the case-law cited).

72

By her second plea, the appellant argues that, following the annulment judgment, it was for Cedefop to re-examine the contract renewal request and to adopt a new decision replacing the annulled decisions. According to the appellant, at the end of that re-examination, the only measure that Cedefop could lawfully adopt was the renewal of her contract. The appellant deduces that, by not adopting a decision to renew her contract, Cedefop infringed Article 266 TFEU and made a manifest error of assessment. She states that the fact that, in the annulment judgment, the General Court ordered Cedefop to pay compensation has no bearing on its obligation to adopt such a decision for the purpose of implementing the annulment judgment.

73

Cedefop submits, in essence, that, by adopting the contested decision, which was confirmed by the decision rejecting the complaint, that agency duly fulfilled its obligation under Article 266 TFEU to comply with the annulment judgment. The compensation awarded for the loss of opportunity suffered by the appellant reversed the effects of the unlawfulness found, with the result that no further action was required to implement the annulment judgment. Therefore, according to Cedefop, the second plea is unfounded.

74

Under Article 266 TFEU, the institution, body, office or entity whose act has been declared void is required to take the necessary measures to comply with the judgment annulling that act.

75

In order to comply with that judgment and to implement it fully, the institution, body, office or entity concerned is required to have regard not only to its operative part but also to the grounds which constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled act (see, to that effect, judgment of 12 December 2024, DD v FRA, C‑587/21 P, EU:C:2024:1017, paragraphs 22 and 23 and the case-law cited).

76

As regards the effects of the annulment of an act by the EU Courts, it should be borne in mind that such annulment operates ex tunc and therefore has the effect of retroactively removing the annulled act from the legal order of the European Union, with the result that the act is deemed never to have existed (see, to that effect, judgment of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraph 68).

77

Since Article 266 TFEU does not specify the nature of the measures to be taken by the author of the annulled act in order to comply with that obligation, it is for the author to identify those measures, whilst having, in the choice of those measures, a wide discretion, provided that it complies with the operative part of the judgment which annulled that act and with the grounds that constitute its essential basis (judgment of 12 December 2024, DD v FRA, C‑587/21 P, EU:C:2024:1017, paragraph 24 and the case-law cited).

78

More particularly, the procedure for replacing an annulled act must be resumed at the very point at which the illegality occurred, since the annulment of an act does not, in principle, affect the validity of measures preparatory to that act, which were adopted before the stage at which that defect was observed (judgment of 12 December 2024, DD v FRA, C‑587/21 P, EU:C:2024:1017, paragraph 25 and the case-law cited).

79

Therefore, in order to ensure the proper implementation of a judgment annulling an act and thereby to comply with its obligation under Article 266 TFEU, the institution, body, office or entity which issued the act declared void is required to take the necessary measures to reverse the effects of the illegalities found, which, in the case of an act which has already been implemented, entails restoring the situation to that which would have prevailed in the absence of the illegality found.

80

It follows from the foregoing that, for the purpose of implementing the annulment judgment, Cedefop was required to re-examine the contract renewal request and to adopt a decision replacing the annulled decisions, placing itself, for that purpose, in the situation prevailing on the date on which those decisions were adopted and taking into account the grounds of the annulment judgment.

81

Contrary to Cedefop’s contention, the fact that, in the annulment judgment, the General Court ordered it to pay compensation for the material damage suffered by the appellant as a result of the loss of opportunity to have her contract renewed did not in any way exempt it from fulfilling those obligations.

82

No such exemption is apparent from any of the grounds of the annulment judgment and the compensation which the General Court ordered Cedefop to pay constitutes financial compensation due to the appellant in respect of the loss of an opportunity, without prejudice to the other obligations incumbent on that agency arising from the implementation of the annulment judgment, as recalled in paragraph 80 of the present judgment.

83

In any event, even if, by awarding the appellant compensation for the loss of opportunity to have her contract renewed at the same time as ordering the annulment of the decision not to renew that contract, the General Court erred in law, such an error of law could have been raised only in the context of an appeal against the annulment judgment. Since Cedefop did not lodge such an appeal, that judgment has become final.

84

Therefore, by refusing to adopt measures to implement the annulment judgment other than the payment of the compensation specified in that judgment, Cedefop infringed Article 266 TFEU.

85

Consequently, the second plea in law must be declared well founded and both the contested decision and the decision rejecting the complaint must be annulled.

86

The appellant argues that Cedefop’s persistent refusal to implement the annulment judgment constitutes a manifest infringement of EU law and a breach of the confidence which the EU legal order must inspire in every litigant. In addition, as regards the appellant’s personal situation, since 2017, the persistent uncertainty surrounding the renewal of her contract has caused her insecurity and psychological strain as regards her professional future, causing her stress and anxiety. Accordingly, annulment cannot constitute sufficient compensation for the non-material damage which the appellant claims to have suffered as a result of the failure to comply with the annulment judgment. In those circumstances, she is seeking an order that Cedefop pay compensation of EUR 100000.

87

According to Cedefop, the appellant’s claim for compensation should be rejected. First, the non-material damage linked to the non-renewal of her contract has already been compensated, since, in the annulment judgment, the General Court ordered Cedefop to pay EUR 10000 on that basis, a sum which it has already paid. Secondly, the appellant has not specified the elements constituting her non-material damage.

88

In the first place, it should be noted that, by her claim for compensation, the appellant is seeking compensation for the non-material damage that Cedefop allegedly caused her by failing properly to implement the annulment judgment. That claim is therefore linked to the unlawfulness of the contested decision and of the decision rejecting the complaint.

89

Therefore, the non-material damage alleged by the appellant in the present action is different from that for which she sought compensation in the action which gave rise to the annulment judgment, which was based on the unlawfulness of the annulled decisions.

90

Consequently, contrary to Cedefop’s contention, the present claim for compensation is not seeking to obtain compensation for damage which has already been compensated.

91

In the second place, it should be borne in mind that an EU agency may incur non-contractual liability only if a number of conditions are fulfilled, namely the conduct alleged against that agency must be unlawful, actual damage must have been suffered and there must be a causal link between that conduct and the damage complained of (see, to that effect, judgment of 4 June 2020, Schokker v EASA, C‑310/19 P, EU:C:2020:435, paragraph 54 and the case-law cited).

92

First, since the contested decision and the decision rejecting the complaint have been annulled on the ground that Cedefop failed to fulfil its obligation under Article 266 TFEU to comply with the annulment judgment, the first condition for Cedefop to incur liability, namely the unlawfulness of the conduct complained of, is therefore satisfied.

93

Next, as regards the condition requiring that actual damage be suffered, it must be noted that the refusal by an institution, body, office or entity of the European Union to implement a judgment delivered by an EU Court will undermine the confidence which every litigant must have in the legal order of the European Union, based, in particular, on respect for the decisions made by its courts. Consequently, irrespective of any material damage which might result from non-compliance with a judgment, the refusal to adopt the measures necessary for its proper implementation will, in itself, involve non-material damage for the party who has obtained a favourable judgment.

94

Moreover, Cedefop’s conduct indisputably placed the appellant in a prolonged state of uncertainty regarding the renewal of her contract, a situation that constitutes non-material damage.

95

It must therefore be held that the existence of damage has been established.

96

Lastly, as regards the causal link, suffice it to state that the non-material damage suffered by the appellant is directly attributable to Cedefop’s refusal to adopt measures to comply with the annulment judgment other than the payment of the compensation specified in that judgment and that such damage would not have occurred had Cedefop correctly implemented that judgment.

97

It follows that a causal link between Cedefop’s unlawful conduct and the damage has also been established.

98

In the light of the particular circumstances of the present case, it must be held that the award of EUR 15000 to the appellant constitutes appropriate compensation for that damage.

99

In accordance with Article 184(2) of the Rules of Procedure, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs.

100

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

101

In the present case, since the appellant has applied for costs and Cedefop has been unsuccessful in both the appeal and the proceedings at first instance, Cedefop must be ordered to bear its own costs and to pay all the costs incurred by the appellant relating to those two sets of proceedings.

On those grounds, the Court (Fifth Chamber) hereby: